McManus v. Gourd

1994 OK CIV APP 23, 873 P.2d 1060, 65 O.B.A.J. 1500, 1994 Okla. Civ. App. LEXIS 28, 1994 WL 147730
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 15, 1994
DocketNo. 78865
StatusPublished
Cited by3 cases

This text of 1994 OK CIV APP 23 (McManus v. Gourd) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McManus v. Gourd, 1994 OK CIV APP 23, 873 P.2d 1060, 65 O.B.A.J. 1500, 1994 Okla. Civ. App. LEXIS 28, 1994 WL 147730 (Okla. Ct. App. 1994).

Opinion

OPINION

ADAMS, Judge:

Lisa McManus sued May and Allen Gourd, Sr.1 and the other defendants for injuries she sustained in a collision between her car and a van owned by the Gourds. The trial court submitted three verdict forms which required the jury to assess separately the liability of Gourd (individually and as administrator of the estate of her deceased husband), Allen Gourd, Jr. (the Gourds’ adult son) and Vis-teena Spottedhorse. The jury returned three separate verdicts finding Gourd, Allen Earl Gourd, Jr. (Son), and Spottedhorse each liable to McManus for $10,000 actual damages and $10,000 punitive damages. Concluding the jury intended McManus’ total damages to be $30,000 actual and $30,000 punitive damages, the trial court entered judgment for that amount against all the defendants. Only Gourd appeals.

ISSUES

Gourd raises several points of error in her petition in error, but several of these errors are not addressed in her brief and are treated as waived. State ex rel. Remy v. City of Norman, 642 P.2d 219 (Okla.1981). Similarly, Gourd argues the trial court erred in giving Instruction 12 but did not so allege [1062]*1062in her petition in error or her motion for new trial, although she did specifically allege error in Instruction 6. Therefore any error in Instruction 12 has not been preserved for review. See Greene v. Circle Insurance Company, 557 P.2d 422 (Okla.1976) and Horizons, Inc. v. KEO Leasing Co., 681 P.2d 757 (Okla.1984).

The remaining issues for our consideration, not necessarily in the order raised by Gourd, are: (1) whether there was sufficient evidence for the jury to conclude there had been a negligent entrustment to the driver involved in the accident; (2) whether giving Instruction 6, which defined what it means to .“operate” a motor vehicle, was error; (3) whether the trial court erred in allowing McManus to conform her pleadings to the proof, thereby allegedly creating a “general negligence” claim against Gourd; and (4) whether the trial court erred when it gave three separate verdict forms to the jury and then failed to limit the judgment against Gourd to $10,000 actual and $10,000 punitive damages2.

ANALYSIS

On the morning of the day of the accident, McManus was travelling south of Tahlequah on State Highway 62. The Gourds’ van failed to yield at a stop sign at the intersection of the highway with Willis Road, and McManus’ car struck the side of the van. Spottedhorse and Son were in the van. As to the first issue, Gourd argues the evidence only supports a finding that Spottedhorse was the sole person operating the van at the time of the accident. She also contends there is no evidence to support the conclusion that the Gourds entrusted the van to Spottedhorse. Therefore, she argues, McManus was not entitled to recover on a theory of negligent entrustment. Our task in addressing this issue is to review the evidence, consider it in the light most favorable to Mc-Manus, and determine whether the record contains any evidence reasonably tending to support the jury’s verdict. Oklahoma Transportation Co. v. Claiborn, 434 P.2d 299 (Okla.1967).

Spottedhorse testified that her driver’s license was suspended at the time of the accident, that she had been drinking, and that she was sitting in the driver’s seat when the car and van collided. However, several times during her testimony Spottedhorse claimed to have no memory of the events surrounding the accident. When Spotte-dhorse claimed this lack of memory, Mc-Manus’ counsel offered portions of her deposition testimony into evidence.

In one portion of her deposition testimony, Spottedhorse claimed she tried to bring the van to a stop at the stop sign on Willis Road but Son attempted to wrest control of the van from her by grabbing the steering wheel and placing his foot on the gas pedal. This testimony was consistent with McManus’ testimony that she saw the van slow near the stop sign and then suddenly shoot forward and in front of her car.

The jury also heard evidence that Son’s license had been suspended at the time of the accident for prior alcohol-related offenses, that he had been drinking with Spottedhorse, and that he was arrested for public drunk at the scene. Son denied trying to take control of the van.

Gourd testified she knew Son had a twenty-year history of alcohol abuse and knew Son had prior driving-while-intoxicated offenses and public drunk convictions. She admitted knowing Son drove the van while his license was under suspension. The jury heard testimony that the Gourds purchased the van a few months before the accident specifically for Son’s use and that the Gourds both had ceased driving prior to the purchase of the van. Although Gourd testified she restricted Son’s access to an automobile they had previously owned on a single occasion, she admitted neither of the Gourds attempted to restrict Son’s use of the van.

Gourd denied that she or her husband had ever given Spottedhorse permission to drive [1063]*1063the van but admitted she knew Spottedhorse had driven Son home “once or twice” or “a few times.” Spottedhorse testified such permission had been extended on at least five occasions, and that the Gourds were aware she and other drinking companions of Son drove the van when Son was too inebriated to do so. Spottedhorse’s denial that the Gourds had ever given her explicit permission to drive was contradicted by her deposition in which she testified about conversations with May Gourd during which Spottedhorse was told she had permission to drive if Son was too drunk to do so.

The jury is the exclusive judge of the witnesses, evidence, and the effect to be given conflicting or inconsistent testimony. Holley v. Shepard, 744 P.2d 945 (Okla.1987). Where any evidence reasonably tending to support the jury’s verdict appears in the record, that verdict will not be disturbed. Eversole v. Oklahoma Hospital Founders Association, 818 P.2d 456 (Okla.1991). If Spottedhorse’s testimony is believed, the jury could have concluded that Spottedhorse and Son were both in control of the van at the time of impact, that both Spottedhorse and Son had implicit or explicit permission to operate the van, and that Spottedhorse and Son, acting in concert, were negligent in operating the van, with resulting injury to McManus.

Further, the jury could have reasonably concluded that the Gourds’ entrustment of the vehicle to Son and his friend, with knowledge of its likely use while the drivers were drinking, was such reckless disregard for the rights of other motorists as to warrant punitive damages. The jury’s verdict finding Gourd liable for actual and punitive damages is supported by the evidence.

As to the second issue, Gourd argues Instruction 6 did not properly define the term “operate.” Instruction 6 reads: “To ‘operate’ a vehicle not only concerns the motion of the vehicle, but also deals with acts which engage the machinery of the vehicle, which in turn control the motion of the car.” Gourd does not suggest she offered a different definition of “operate” and that this alternative was refused. Instead, she argues that only Spottedhorse was the operator of the van and Instruction 6 improperly allowed the jury to find that a passenger, Son, was operating the van. This argument assumes only one person may operate a vehicle, an assumption in which we do not indulge.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

King v. Kennedy
N.D. Oklahoma, 2023
Death of Lofton v. Green
1995 OK 109 (Supreme Court of Oklahoma, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
1994 OK CIV APP 23, 873 P.2d 1060, 65 O.B.A.J. 1500, 1994 Okla. Civ. App. LEXIS 28, 1994 WL 147730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmanus-v-gourd-oklacivapp-1994.