LAWTON TRANSIT MIX, INC. v. LARSON

LAWTON TRANSIT MIX, INC. v. LARSON
1969 OK 83
455 P.2d 696
Case Number: 41686
Decided: 05/06/1969
Supreme Court of Oklahoma

LAWTON TRANSIT MIX, INC., PLAINTIFF IN ERROR,
v.
MAGDALINE LARSON, DEFENDANT IN ERROR.

Syllabus

¶0 1. If it appears that there has been misconduct in a trial, or prejudicial matter has been allowed to go to the jury, the aggrieved party may move the court to declare a mistrial but failing in that, he will be deemed to have taken his chances with the jury.
2. Prejudicial remarks of counsel in his argument to the jury are not available as a ground for reversal unless objected to and exception taken at the time such remarks were made, and the remarks, as well as the objection and exception thereto, must be shown in the record of the proceedings of the trial.

Appeal from the District Court of Comanche County; Luther Eubanks, Judge.
Action for personal injuries resulting from an auto-truck collision. After verdict and judgment for plaintiff, and the overruling of defendant's motion for a new trial, the defendant appeals. Affirmed.

Nicklas, Parrish & Saenz, by W.F. Parrish, Jr., Lawton, for plaintiff in error.
Rhoads, Ashton, Johnson & Schacher, by Githen K. Rhoads, Lawton, for defendant in error.

McINERNEY, Justice.

¶1 This is an appeal by Lawton Transit Mix, Inc. (Defendant) from a judgment based on a verdict by a jury awarding Magdeline Larson (Plaintiff) damages for personal injuries suffered when plaintiff's automobile was struck from the rear by defendant's cement truck.

¶2 Both vehicles were proceeding north in the left lane toward an intersection in Lawton, Oklahoma. The vehicles entered the "left turn lane only" at the traffic controlled intersection. Plaintiff indicated her turn by activating her left turn blinkers. As she approached the point at which she was to begin her turn, the signal light controlling the turning of vehicles changed from amber to red and she stopped. After stopping, she noticed in her rear view mirror that defendant's vehicle continued moving forward. Plaintiff removed her foot from the brake and immediately her car was struck, knocking it some eight feet forward. Plaintiff was injured in the collision.

¶3 Medical testimony was introduced by plaintiff. Generally, the evidence demonstrated that plaintiff had a congenital anomaly in her back from birth. She experienced no difficulty or pain from this defect before the accident. She testified that before the accident she was an able bodied woman and could bat a ball as good as her four children. She added that after the accident her ability to do even ordinary ironing and housework was a painful ordeal. A spinal fusion was performed. The surgeon testified concerning the causal connection between her pre-existing back condition that was dormant and the resultant effect caused by the accident. The medical testimony is not seriously challenged.

¶4 Defendant's assignments of error are (1) permitting the introduction of irrelevant and immaterial evidence which incited passion and sympathy in the minds of the jury, (2) permitting improper cross-examination of the driver of defendant's truck about matters concerning previous unrelated traffic violations, and (3) permitting misconduct by plaintiff's attorney in the closing argument.

¶5 Plaintiff testified that she is the mother of four children dependent upon her for their support; that the father of the children since their divorce, has failed to provide support. She also testified that her second husband had abandoned her after her accident and after she became bedfast and unable to care for her children or do the housework. She further testified regarding her financial domestic difficulties in regard to the cost of educating the children, the rent she pays for their living accommodations, and the amount required for food for such a family.

¶6 While we may agree that the bulk of the challenged testimony relating to domestic problems is generally inadmissible, no motion to strike any of the plaintiff's testimony was interposed. Several of the defendant's six objections to her testimony were sustained, others were overruled, some with the court stating limitations or qualifications on the answers. On cross-examination the defendant elicited further evidence of the same nature. The testimony was allowed to go to the jury without a request or motion to exclude any portion from the jury's consideration. Under these circumstances, the admission of the testimony does not constitute error sufficient to justify reversal. Parris v. McCallay, Okl.,

¶7 The driver of defendant's truck was questioned on cross-examination about previous unrelated traffic mishaps. After a number of questions were asked and the answers given - all without an objection - the plaintiff's attorney asked one question to which the objection was sustained and one question which, after an equivocal answer, evoked a motion by defendant's attorney for the court to instruct the jury "to disregard the questions propounded by counsel." This motion was overruled.

¶8 Assuming, arguendo, that the ruling is erroneous, we are unable to say, considering the totality of the record, that such error has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. Maynard et al. v. Hustead et al.,

¶9 Defendant contends that improper remarks of plaintiff's attorney in the closing argument constitutes misconduct which prevented an impartial verdict and resulted in a "remarkably excessive verdict." The remarks were not taken by the court reporter and do not appear in the record of the proceedings before this court. An affidavit of defendant's counsel was filed in the trial court after the order overruling the motion for a new trial had been made but before the case made was settled by the trial court. The affidavit does not satisfy the requirements for appellate review under these circumstances. Burns v. Atchison, Topeka and Santa Fe Railway Co. et al., Okl.,

¶10 Defendant did not ask for a mistrial at the time of these remarks. Defendant did not request a mistrial when the evidence now challenged was admitted. If prejudicial remarks of counsel, or the admission of prejudicial evidence, is allowed to go to the jury without the aggrieved party moving the court to declare a mistrial, or otherwise permitting the trial court the opportunity to correct the asserted error, the party will be deemed to have taken his chances with the jury. Walton v. Bennett, Okl.,

¶11 The amount of the jury verdict is well within the permissible limits supported by the evidence, and the verdict is not excessive.

¶12 The judgment rendered was superseded, pending appeal, by a bond executed by the Lawton Transit Mix, Inc. as principal and Transamerica Insurance Company, a corporation, as surety thereon. Judgment is hereby rendered against the surety on the supersedeas bond for the sum of $23,792.00 together with interest, plus the costs herein accrued and accruing. Execution may issue hereon from the trial court after mandate is spread of record.

¶13 The judgment of the trial court is affirmed.

¶14 IRWIN, C.J., BERRY, V.C.J., and WILLIAMS and LAVENDER, JJ., concur.

¶15 BLACKBIRD and JACKSON, JJ., dissent.