Bishop's Restaurants, Inc., of Tulsa v. Whomble

• Decision Date: 23 February 1960
• Docket Number: No. 38597,38597
• Citation: 1960 OK 44,355 P.2d 560
• Parties: BISHOP'S RESTAURANTS, INC. OF TULSA and Jane Doe, Plaintiffs in Error, v. Mrs. Harold WHOMBLE, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 560

355 P.2d 560

1960 OK 44

BISHOP'S RESTAURANTS, INC. OF TULSA and Jane Doe, Plaintiffs in Error, v. Mrs. Harold WHOMBLE, Defendant in Error.

No. 38597.

Supreme Court of Oklahoma.

Feb. 23, 1960.

Rehearing Denied Sept. 27, 1960.

Syllabus by the Court

1. Where trial judge rests his action in sustaining motion for a new trial upon an erroneous instruction submitted to the jury and it appears that such instruction was properly and correctly given, the ruling of the lower court presents, on review, error with respect to a pure, simple, and unmixed question of law, and in such case the order granting new trial will be reversed.

2. Where it appears there was no sufficient ground for new trial alleged in the motion of unsuccessful litigant and the examination of the entire record fails to disclose any legal grounds to support trial judge's obscure remarks as to his reasons for granting a new trial, this court will hold that no grounds existed, and that the lower court abused its discretion in making the order, which will be reversed on appeal.

Appeal from District Court of Tulsa County; Lewis C. Johnson, Judge.

Action to recover damages for injury to the person. Jury returned a verdict for defendants and trial court sustained plaintiff's motion for new trial. Defendants appeal from order granting new trial. Reversed.

Rucker, Tabor & Cox, Gurney G. Cox, O. H. (Pat) O'Neal, Tulsa, for plaintiffs in error.

Hudson, Hudson, Wheaton & Kyle, Thomas R. Brett, Tulsa, for defendant in error.

BERRY, Justice.

Mrs. Harold Whomble, plaintiff below, commenced this action to recover damages for bodily injuries received by her on the evening of May 4, 1956, while a patron in the establishment of defendant, Bishop's Restaurants, Inc., in Tulsa, Oklahoma. The petition alleges plaintiff pulled out a chair from the table specially arranged for her party of several ladies, then stepped in front of it and proceeded to be seated. While she was in process of sitting down, defendant's hostess (co-defendant below) negligently removed the chair from its position directly behind plaintiff. As a result of this act plaintiff fell to the floor sustaining a fractured coccyx (tail bone) and other injuries to her person. An averment is made that defendant, Bishop's Restaurants, Inc., owed a duty to see that guests present on the premises were properly seated, and that its hostess, acting as an agent and employee of the establishment, was negligent in carrying away the chair when plaintiff was in the motion of seating herself therein. Defendants answered by general denial, a plea of unavoidable casualty and contributory negligence. After trial resulted in a verdict for defendants, the lower court sustained plaintiff's motion for new trial. From the order granting a reexamination of fact issues, defendants bring this appeal.

For reversal defendants urge the order of the court below was an arbitrary and capricious act constituting error of law and an abuse of sound judicial discretion.

In her motion for a new trial plaintiff alleged:

'That the verdict of the jury is contrary to the evidence, contrary to the court's instructions, and not supported by the evidence.

'That the verdict of the jury is so flagrantly opposed to the evidence as to appear to have been the result of prejudice and is so opposed to justice as to immediately shock the conscience of the court.'

While the journal entry of judgment is Patton, 208 Okl. 442, 257 P.2d 280. trial, the record reveals the following comment voiced by the trial judge in sustaining the motion:

'The Court sustains the motion for a new trial on the ground that the verdict of the jury is unconscionable; the Court cannot approve it; the Court believes that there was no contributory negligence in this case and I am surprised that the jury could, by any stretch of the imagination, find contributory negligence in this case.

'I think it was error for the Court to give the contributory negligence instructions and for those reasons, both unconscionable and the giving of the contributory negligence instruction, the Court will grant a new trial.'

Plaintiff asserts the action of the trial judge is buttressed by sound and valid reasons. Seeking to uphold the order, she invokes the rule that in granting a motion for a new trial the lower court is not limited to the grounds stated therein and has a broad latitude and discretion which will not be disturbed by the reviewing tribunal in the absence of a clear showing of manifest error and an abuse of discretion. Reyes v. Goss, 205 Okl. 140, 235 P.2d 950; Rein v. Patton, 208 Okl. 442, 257 P.2d 280.

Whether or not in the case at bar the issue of contributory negligence was properly submitted to the jury presents for our consideration a clear proposition of law. We are firmly committed to the view that where the lower court rests its action in granting a new trial upon the inclusion of an erroneous charge to the jury and such instruction is determined by the reviewing tribunal to have been correctly and properly given, the trial judge is deemed to have erred with respect to a pure, simple and unmixed question of law. In such instance the order granting a new trial will be reversed. Browne v. Bassett, 191 Okl. 22, 126 P.2d 705; Dowell, Inc. v. Layton, Okl., 261 P.2d 885.

Proof introduced by defendants, the record discloses, shows that when the hostess removed the chair, which she said was obstructing the aisle, Mrs. Whomble was not standing directly in front of it. Although it is so alleged in the petition, the evidence did not establish that before proceeding to seat herself in the chair she sought to occupy, plaintiff had pulled it out from the table, placed it behind her and then attempted to sit down. At the time of the incident, all the witnesses agree, plaintiff and the ladies in her party were engaged in...