Opinion
No. 71579.
November 14, 1988. Concurring Opinion January 30, 1989. As Corrected January 30, 1989. Rehearing Denied February 1, 1989.
ORDER
Original jurisdiction is assumed. Let writ of prohibition issue.
Petitioner, as a passenger, brought a personal injury suit against two defendants, the driver and the owner of a motor vehicle involved in an accident. The driver was alleged to be negligent in his operation of that vehicle. The owner was alleged to have negligently entrusted the vehicle to the driver and knowingly permitted its operation by a person not qualified in violation of 47 O.S. 1981 § 6-307[ 47-6-307]. Respondent Judge ordered the trial to be bifurcated as to the two defendants.
The civil liability for knowingly permitting a motor vehicle to be operated by a person not qualified is that of a joint tortfeasor with the operator. Section 6-307, supra. Under comparative negligence, multiple tortfeasors are severally liable only. Each defendant can be liable only for the percentage of the award of damages attributable to him. 23 O.S. 1981 § 13[ 23-13]; Laubach v. Morgan, 588 P.2d 1071 (Okla. 1978). A joint tort gives rise to but a single cause of action. Sykes v. Wright, 201 Okla. 346, 205 P.2d 1156 (1949). The order to bifurcate in this case splits or divides a single cause of action at law for two trials by jury. Because a legal cause of action cannot be split or divided, it is not subject to bifurcation for trial purposes within the meaning of 12 O.S.Supp. 1984 § 2018[ 12-2018](D) in the absence of some compelling circumstances. Christian v. American Home Assur. Co., Okla., 577 P.2d 899, 905-906 [1977]; Retherford v. Halliburton Co., Okla., 572 P.2d 966, 969-970 [1978].
The respondent Judge, or any other assigned judge, is prohibited from proceeding in cause No. C-87-271, District Court LeFlore County, styled Willis Knight v. William Condy Wells, et al., with a bifurcated trial as provided in the order, filed August 17, 1988, in that cause.
HODGES, LAVENDER, ALMA WILSON, KAUGER and SUMMERS, JJ., concur.
HARGRAVE, V.C.J., and SIMMS, J., dissent.
OPALA, V.C.J., concurs in result.
Effective January 1, 1989.
While I accede to the court's holding that this single tort should not be split for trial as though it comprised two separate claims, I am of the view that this case could be tried to the same jury in three different stages.
The first trial stage could be confined to the factum of the driver's negligence; the second to the issue of the owner's negligence in the wrongful entrustment of the car; and the third to the plaintiff's damages, in the event both or either defendant was to be found negligent in a preceding stage of the trichotomous (three-part) trial.
The trifurcation I counsel today would neither "split" this action to recover for a single tort nor offend our fundamental law's prohibition against submitting a case for the jury's decision by "special verdict."
See Art. 7 § 15, Okla. Const.; 12 O.S. 1981 §§ 587[ 12-587] and 588; Smith v. Gizzi, Okla., 564 P.2d 1009, 1012-1013 [1977], and McKellips v. Saint Francis Hosp., Inc., Okla., 741 P.2d 467, 476-477 [1987].
The verdict is "special" if it is not "wholly determinative" of the right of recovery. Smith v. Gizzi, supra note 1 at 1013.
At this stage of the proceeding in the trial court, I would refuse to assume original jurisdiction.