Spears v. Preble

• Decision Date: 01 February 1983
• Docket Number: No. 54461,54461
• Citation: 1983 OK 8,661 P.2d 1337
• Parties: Millard Wayne SPEARS, Appellant, v. Harold Stanley PREBLE, Jr., Joyce P. Lambert and Michael Lambert, Defendants, and State Farm Mutual Automobile Insurance Company, Appellee.
• Court: Oklahoma Supreme Court

Page 1337

661 P.2d 1337

1983 OK 8

Millard Wayne SPEARS, Appellant, v. Harold Stanley PREBLE, Jr., Joyce P. Lambert and Michael

Lambert, Defendants,

and

State Farm Mutual Automobile Insurance Company, Appellee.

No. 54461.

Supreme Court of Oklahoma.

Feb. 1, 1983.

As Corrected Feb. 28 and May 2, 1983.

Rehearing Denied May 3, 1983.

Hall, Estill, Hardwick, Gable, Collingsworth & Nelson by Frank M. Hagedorn, Tulsa, for appellant.

Thomas L. Palmer, Inc. by John R. Caslavka, Tulsa, for appellee (cross-appellant) State Farm Mut. Auto. Ins. Co.

HODGES, Justice.

This appeal arose as the result of a garnishment proceeding brought by Millard Wayne Spears (Spears), appellant, to collect a $14,530.00 judgment against State Farm Mutual Insurance Company (garnishee), appellee. Judgment was rendered in a reduced amount for $7,700.90. Spears and State Farm each appeal.

On July 26, 1976, Harold Stanley Preble, Jr. (Preble), the natural son of Joyce P. Lambert, borrowed the car owned by his mother and stepfather, Michael Lambert (Lamberts), with the instruction from his stepfather that the car be returned by 11:30 p.m. Preble burglarized a house, and some of the stolen items were observed by Millard Wayne Spears, a deputy sheriff. A high speed chase ensued, in which bumping of the cars occurred, followed by an exchange of gunshots. The Lambert car was driven through the wrong gate of the Tulsa Turnpike at the Sapulpa exit, and when Preble applied his brakes in an attempt to get back on the right side of the road, the Spears vehicle hit it from the rear.

The garnishment action was tried to the court without a jury on August 15, 1979. The court found that: Preble was not a member of the Lambert household at the time of the accident; the collision was an accident; Preble had "no intent to do harm;" Preble had permission to use the car, but he did not have permission to commit a burglary; and that the accident occurred within the period of time that he had permission to use the car. The court further found that both parties were negligent--Spears 47% and Preble 53%. On October 17, 1979, judgment was rendered in favor of Spears against Preble and State Farm in the amount of $7,700.90 plus interest at the rate of ten percent per annum from April 27, 1978. A motion for new trial was denied on November 21, 1979.

As a result of the trial court's finding of comparative negligence in a garnishment proceeding, Spears filed a petition in error November 27, 1979. State Farm filed its petition in error December 18, 1979, alleging that: the trial court did not have jurisdiction over Preble; Spears failed to timely take issue with the garnishee's answer; Preble was operating the car outside the scope of his permission; the trial court erred in entering default judgment at the time the demand for jury trial was pending; and the policy did not cover intentional torts caused during the commission of a crime.

I

We will first consider Spears' contention that State Farm's counter-petition in error should be dismissed because it was filed out of time in violation of Rule 1.18. ¹ This rule allows a "cross-appeal," "counter-appeal," or separate appeal from the same decision within ten (10) days from the original petition in error.

Spears points out his petition in error was filed on November 27, 1979, and that State Farm's counter-petition in error was not filed within ten days from that date, and hence should be dismissed. We disagree. Title 12 O.S.1981 § 990 allows an appeal within thirty (30) days from the rendition of a final order; and because the final order in this case was rendered on

November 27, 1979, State Farm's counter-petition was timely filed within the thirty day period, on December 18, 1979.

II

We will next consider State Farm's petition in error.

A.

State Farm argues that the default judgment was void because the summons was improperly returned and, therefore, the trial court lacked personal jurisdiction over Preble at the time judgment was entered; Spears counters that State Farm should not complain because State Farm's attorneys: 1) knew that Preble had been served; 2) participated in taking Preble's deposition, and 3) were representing the Lamberts and present in the courtroom when the trial court called the case for jury trial and entered default judgment. We agree with Spears' contentions. Preble's deposition was taken on May 19, 1977. The attorney representing the Lamberts and State Farm was present when Preble admitted that he was a named party defendant in the case, and that he had been served with summons.

We have examined the summons and find that the summons was, in fact, served on the defendant Preble, and find that the defect in the return of the summons was in form only. Title 12 O.S.1981 § 154.2 specifically provides that the defects in the form of the return do not constitute grounds for quashing the summons or its service. ²

B.

State Farm asserts that the garnishee summons was fatally defective, and that the summons contravened the directive of 12 O.S.1981 § 1180 ³ because it directed the garnishee to file its answer within ten days instead of within twenty days from the date of service. The trial court denied State Farm's motion to quash and plea to jurisdiction and gave the garnishee twenty days to answer. The Court of Appeals, relying on Aggers v. Bridges, 31 Okl. 617, 122 P. 170 (1912) and State v. Parks, 34 Okl. 335, 126 P. 242 (1912) agreed with the garnishee's position, and reversed and remanded the cause.

We find that the garnishee suffered no prejudice by the court's amendment of the summons from ten days to twenty days. The court, pursuant to 12 O.S.1981 § 317, has the power to correct any mistake in process which does not change the nature of the transaction or occurrence which is the subject of the claim or defense. ⁴ To the extent that Aggers v. Bridges, supra, and State v. Parks, supra, are inconsistent with this holding, they are hereby overruled.

C.

State Farm alleges that the trial court erred in overruling its motion to dismiss based on the assertion that Spears failed to On October 2, 1978, State Farm filed a pleading entitled "General and Special Demurrer and Answer Affidavit of Garnishee." Ten days later Spears requested additional time from the court to file a response to the demurrer; he was given until October 24, 1978 to respond. On October 20, 1978, without notice, the court entered its order overruling State Farm's general and special demurrers. Although the records of the minutes of the Court Clerk show that a copy should have been sent to appellant's attorneys, Spears contends no notice was ever received. Spears, believing that the demurrers were still pending before the court, filed a motion for judgment under Rule 13 in April, 1979. Thereafter, State Farm filed a motion to dismiss and Spears allegedly learned for the first time that the general and special demurrers had been overruled in October. A hearing was held in June after Spears filed a response to the motion to dismiss stating notice had not been received of the court's order overruling the demurrers. Spears argued that State Farm would not be prejudiced if the court permitted him to take election against the answer affidavit at that time. The trial court found that notice of the order had not been given to Spears and allowed additional time for him to file his election. The court also found that State Farm had not been prejudiced by the court's ruling. Spears filed his election to take issue with the garnishee's answer June 19, 1979, within the time granted by the court.

take issue with the garnishee's answer within twenty days, pursuant to 12 O.S.1981 § 1177. ⁵

Statutes circumscribing intervals during which pleadings may be filed have generally been construed to fix a limit beyond which the pleading may not be filed without permission. ⁶ Extension of time to file an election to take issue with the answer of the garnishee is discretionary, ⁷ not jurisdictional, ⁸ and in the absence of a showing of prejudice to garnishee; we find that under the circumstances, no error was committed.

D.

Garnishee also denies that it has any liability to Spears because Preble was not a permissive user under the terms of the policy. It is the garnishee's contention that Preble was given permission to use the car for the sole and restricted purpose of going to visit a doctor, and not to commit a burglary. However, the trial court found that a general permission to use the car had been given to Preble by his stepfather with the only restriction being the return of the car by 11:30 p.m. While the evidence is disputed, there was substantial evidence to support this finding.

We adopt the rule that once general permission is given to a person to use a car, the accident is covered by the policy even though the particular use was not contemplated by the owner. West American Ins. Co. v. Allstate Ins. Co., 295 F.2d 513 (10th Cir.1961).

The policy, with certain exceptions, states that State Farm will pay all sums the insured is legally obligated to pay as the result of property damage or bodily injury arising from the use of the owned motor vehicle. The policy provides that use or operation by a non-owner must be with the permission of the owner or person in lawful possession and within the scope of the permission.

Preble fell within the general or unlimited permissive use because no use or restrictions were given from which the permissive user could deviate, and State Farm is liable for damages to Spears.

E.

The Lamberts were served and they filed a general entry of appearance, demurrers and answers and a demand for jury trial. On April 20, 1978, while this action was pending on a demand for jury trial, Spears recovered a default judgment against Preble for $14,530.00. State Farm challenges the entry of default judgment against Preble during the time the action was pending against the Lamberts on a demand for jury trial, and cites...