Green Constr. Co. v. Lampe
| Decision Date | 25 September 1935 |
| Docket Number | Case Number: 24067 |
| Parties | GREEN CONSTRUCTION CO. v. LAMPE et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Reversible Error in Improper Argument.
"Where counsel in argument makes a statement of material fact not in evidence, against the objection of the other party, he violates the right of a fair trial, and where the trial judge fails to pass squarely on the objection, and, if sustained, fails to admonish the jury to disregard such statement as not in evidence, we must reverse, unless this court can ascertain from the record that no harm resulted."
2. Trial -- Right to Question Prospective Juror in Damage Suit Relative to His Connections or Acquaintance With Representative of Insurance Company Seated at Counsel Table.
In an action for wrongful death against an employer protected by insurance and a representative of the insurance carrier is seated at the counsel table and apparently interested in the cause on trial, it is not error to inquire, on voir dire examination of a juror, his connection or acquaintance with the representative of the insurance company. The test being whether such inquiry is in good faith and for proper purposes.
Appeal from District Court, Oklahoma County; E. P. Ledbetter, Judge.
Action by Fannie Lampe and Dolores Jean Lampe, by and through her mother and next friend Fannie Lampe, against Green Construction Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Rittenhouse, Webster & Rittenhouse, for plaintiff in error.
Gomer Smith and O. A. Cargill, for defendants in error.
¶1 This is an action for wrongful death of Ted Lampe. It is prosecuted by the surviving widow and minor child, heirs at law and next of kin of deceased, against Green Construction Company, employer of deceased. The death occurred on April 5, 1931, as a result of an accident while deceased, in the service of the master, accompanied Walter Godfrey, a fellow employee, on an automobile truck and trailer en route on the highway three miles east of Prague, Okla. Godfrey was driver and operator of the truck. Lampe was a helper. Both lost their lives as a result of the accident.
¶2 he allegations of negligence contained in the petition are that "when said truck got out of control of the driver * * * the trailer was not properly fastened to said truck and became loose and out of control," and that it ran upon, against, and over said truck, wrecking it and killing the driver and Lampe.
¶3 The defendant denied generally, pleaded assumption of risk in that the deceased was a helper of the driver of the truck, experienced in the operation of trucks generally and fully acquainted with this particular truck and trailer and well acquainted with the connections thereof, which were open, obvious, and apparent. Contributory negligence was pleaded as a defense by the allegation that deceased was killed by reason of the negligence of Godfrey, a fellow servant, who drove the truck over a road covered with loose gravel, and around a sharp "S" curve at a high rate of speed in violation of state law, and that by reason of the speed of the truck under the road conditions the truck "was unable to make such curve, the truck going over into the ditch and the trailer thereupon pulling loose and riding on and upon said truck while it was in the ditch, thereby killing the deceased, by reason whereof plaintiff is not entitled to recover herein."
¶4 Judgment was for plaintiffs and against defendant in the sum of $ 8,000, based on the verdict of the jury, and defendant appeals.
¶5 Defendant below, plaintiff in error, asserts error, based on plaintiff's voil dire examination of the jury. It appears that plaintiff's counsel inquired of the first juror (R. 46): "Do you know Mr. R. O. Stewart with the Southern Surety Company?" Mr. Stewart was a representative of the insurance company with which the defendant corporation carried liability insurance, and he was then present at the counsel table, and appeared to be interested in the case. It cannot be said that the question was not propounded in good faith and for the purpose of enabling an intelligent exercise of challenge to the qualifications of the juror. Rhodes v. Lamar, 145 Okla. 223, 292 P. 335; Bass Furn. & Carpet Co. v. Electric Supply Co., 101 Okla. 293, 225 P. 519; Wendel v. City Ice Co. (Mo. App.) 22 S.W.2d 215.
¶6 The contention is without merit and the rule stated in Yoast v. Sims, 122 Okla. 200, 253 P. 504, is not applicable to the facts and circumstances presented by this contention.
¶7 It is contended that defendant was deprived of a fair and impartial trial and its rights were prejudiced by reason of misconduct and irregularity of plaintiff's counsel.
¶8 On pages 287-290 of the record it appears that the trial court sustained an objection to a question propounded by plaintiff's counsel, whereupon a similar question...
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Berry v. Park
...evils." ¶4 The rule and reasoning in the Beasley Case have been consistently adhered to in the following decisions: Green Const. Co. v. Lampe, 174 Okla. 351, 50 P.2d 286; Kennedy v. Raby, 174 Okla. 332, 50 P.2d 716; Safeway Cab Service Co. v. Minor, 180 Okla. 448, 70 P.2d 76; Rogers v. Dick......
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Olguin v. Thygesen
...Cars, Inc., et al, 130 Neb. 576, 265 N.W. 726, 105 A.L.R. 1306; Levens v. Stocco, 5 Cal.App.2d 693, 43 P.2d 357; Green Construction Co. v. Lampe, 174 Okl. 351, 50 P.2d 286; Dowd-Feder v. Truesdell, 130 Ohio St. 530, 200 N.E. 762. [1] The question is not whether any rule of law can deny a li......
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Berry v. Park
... ... adhered to in the following decisions: Green Const. Co ... v. Lampe, 174 Okl. 351, 50 P.2d 286; Kennedy v ... Raby, 174 Okl. 332, 50 P.2d ... ...
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Missouri-Kansas-Texas R. Co. v. Edwards
...death. They are just a gear.' There is no evidence in this case to justify counsel in making such a remark. In Green Construction Co. v. Lampe et al., 174 Okl. 351, 50 P.2d 286, we held a remark improper that was nothing like as inflammatory as the one Similar remarks have been held imprope......