INDIAN TERR. ILLUMINATING OIL CO. v. EARNHEART

INDIAN TERR. ILLUMINATING OIL CO. v. EARNHEART
1939 OK 356
95 P.2d 583
185 Okla. 644
Case Number: 28543
Decided: 10/03/1939
Supreme Court of Oklahoma

INDIAN TERRITORY ILLUMINATING OIL CO.
v.
EARNHEART et al

Syllabus

¶0 1. APPEAL AND ERROR--NEW TRIAL--Insufficiency of Showing for New Trial on Ground of Misconduct of Prevailing Party In Giving False Testimony.
Where plaintiff gave false testimony in the trial of a jury case, and defendant moved for new trial on the ground of misconduct of the prevailing party, refusal of trial court to grant a new trial, in the absence of a showing that the false testimony was willfully and purposely given, that it was material to the issue being tried, and was not merely cumulative, but probably controlled the result, was not an abuse of discretion, and does not constitute ground for reversal.
2. NEW TRIAL--Misconduct of Attorney as Ground--Showing of Prejudice Necessary.
A new trial will not be granted on the ground of misconduct of an attorney unless the circumstances are such as to raise a reasonable inference that such misconduct improperly influenced the verdict.
3. APPEAL AND ERROR--Discretion of Trial Court in Directing Jury to View Premises.
Under the provisions of section 361, O. S. 1931 (12 Okla. St. Ann. § 579), an order directing the jury to view the property, the subject of the litigation, or the place in which any material fact occurred, is a matter of discretion of the trial court, and its ruling thereon will not be reversed, in the absence of a showing of abuse of discretion.

Appeal from Court of Common Pleas; Ted R. Elliott, Special Judge.

Action by C. E. Earnheart and another against the Indian Territory Illuminating Oil Company. Judgment for plaintiffs, and defendants appeal. Affirmed.

M. W. Eddleman and Miley, Hoffman, Williams, France & Johnson, of Oklahoma City, for plaintiff in error.
Twyford & Smith and Charles E. Earnheart, of Oklahoma City, for defendant in error.

HURST, J.

¶1 This is an action by plaintiffs, C. E. Earnheart and Della P. Earnheart, against defendant, Indian Territory Illuminating Oil Company, for damages to land due to the pollution of a stream. From judgment entered on a verdict for plaintiffs, defendant appeals.

¶2 1. Defendant's first contention is that plaintiff deliberately testified falsely, on cross-examination. that he had a soil analysis made by the Professor of Chemistry of the University of Oklahoma, when in fact the analysis was made by a student of the University, a son of the professor. The analysis itself was excluded by the trial court, and there is no evidence that plaintiff so testified willfully, or intentionally perjured himself. The trial court apparently did not believe defendant's rights were materially prejudiced thereby, since he overruled the motion for new trial, based on this and other grounds. While it perhaps constituted "misconduct of the prevailing party" (Burton v. Swanson 119301 142 Okla. 134, 285 P. 839), we are not so convinced of its prejudicial effect as to bold that the court's action was an abuse of discretion (Chicago, R. 1. & P. Ry, Co. v. Maynard [19111, 31 Okla. 685, 122 P. 149).

¶3 2. What we have said above disposes also of defendant's second contention that plaintiff's attorney, in his argument to the jury, improperly argued that the oil companies had a defensive association and prorated among the members the judgments obtained against one or more of them. This argument was in connection with the testimony of the representative of the association and its credibility. There is no claim That the verdict was excessive or rendered tinder the influence of passion or prejudice. The verdict was for $750, and the evidence would have supported a verdict in excess of $3,000. It does not appear that such argument, if improper, so materially prejudiced defendant as to justify our holding that the trial court abused his discretion in refusing a new trial on this ground. Easterly v. Gater (1906) 17 Okla. 93, 87 P. 853, American Fidelity & Casualty Co. v. Bennett (1937) 182 Okla. 71, 76 P.2d 245.

¶4 3. Defendant also urges error in the refusal of the trial court to permit the jury to view the premises. This was discretionary, and no abuse of discretion Is shown. Empire Pipe Line Co. v. Dowdy (1936) 177 Okla. 386, 60 P.2d 757.

¶5 Affirmed.