Green v. Thompson
| Decision Date | 15 September 1959 |
| Docket Number | No. 38307,38307 |
| Citation | 344 P.2d 272 |
| Parties | Jesse GREEN, Plaintiff in Error, v. Lester THOMPSON, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Unwarranted inquiry by plaintiff's counsel as to whether prospective jurors had any stock in any insurance company that carried public liability insurance or words to that effect required that timely motion of defendant in an automobile accident case for a mistrial be granted.
Appeal from the District Court of LeFlore County; Clyde M. Followell, Judge.
Suit for damages for value of horse. From judgment for plaintiff, defendant driver of automobile which struck and killed said horse, appeals. Reversed and remanded for new trial.
Alpheus Varner, Poteau, Dobbs, Pryor & Dobbs, Fort Smith, Ark., for plaintiff in error.
E. E. Thompson, Poteau, for defendant in error.
Plaintiff's cause of action was based upon defendant's alleged negligence. Defendant alleged plaintiff was guilty of negligence by permitting his mare to get loose on the highway, which caused or contributed to causation of the accident. The parties are here referred to as in the trial court.
About 6:30 p. m., on a day in June, 1957, the plaintiff brought his registered Hancock bay mare quarter horse out of his horse-lot and tied her with a piece of lariat rope behind his pick-up truck, and left her while he went inside his home to change his clothing, preparatory to hauling the horse to a nearby rodeo. The mare broke away and ran down the road to a place near a filling station where he or some boys caught hold of her rope. She broke away again and escaped into the darkness. Very soon thereafter the plaintiff heard a crash about a quarter of a mile down the road. The defendant's automobile had collided with plaintiff's animal.
The locale of this accident is 'stock country'.
The witness Brehm had driven along the highway in a northerly direction and had to honk at the animal to get her to leave the roadway. This witness stepped upon his brake pedal four or five times, hoping that the flashing off and on of his brakelights would notify other drivers using the highway that some condition required them to be careful. According to the testimony, another driver, Bryan, not a witness, followed the witness Brehm.
The testimony of the defendant was that the driver Bryan went on north past the place where the horse was and that the horse jumped out of the bar-ditch and the darkness to the side of the road and directly in front of and upon the front of his automobile, damaging the right front fender and coming through the windshield thereof.
There was no direct testimony but only circumstantial evidence that tended in any way to establish negligence upon the part of the defendant. Rather, his testimony, as above shown, tended to demonstrate that he had no opportunity to know that the horse was going to be in the pathway of his automobile. All the testimony was that he was driving at a speed of only some 40 to 45 miles per hour.
The assistant county attorney was in an automobile directly behind that of the defendant. His testimony was that he could not see a horse ahead of the defendant's car.
The highway patrolman who investigated the accident qualified as an expert witness. He testified that he did not see the accident but that he determined in his mind from skid marks and the appearance and location of the car and the horse and other physical facts how the accident had happened. He described the occurrence as follows:
Defendant contends that his rights were prejudiced in the trial court by plaintiff's attorney inquiring of prospective jurors on voir dire whether they had any stock in any insurance company that carried public liability insurance or words to that effect, to the extent that the jury returned a verdict in favor of plaintiff which it would not have done had its members not been so prejudiced.
Counsel for defendant argues that plaintiff's attorney admitted under oath in the chambers of the trial judge during the trial that he was partly motivated in inquiry on voir dire concerning insurance by hope of prejudicing the jury in plaintiff's favor. The record of the trial does not reveal such admission. Defendant's counsel further argues that closing argument of counsel for the plaintiff at the trial improperly indicated that defendant was financially able to employ more than one attorney including a 'Fort Smith Lawyer', (indicating to the jury an insurance company was defending). The record does not contain the closing arguments. However, the record does show that counsel for plaintiff in the trial court did make unwarranted references to liability insurance. Inasmuch as the conduct of counsel on the occasion of a new trial will probably be proper in all respects, we find it unnecessary to say more about this than to quote from the case of Coon v. Manley, 196 S.W. 606 decided by the court of Civil Appeals of Texas wherein that court said, as quoted from in Yoast v. Sims, 122 Okl. 200, 253 P. 504:
'Where the question of defendant automobile driver's...
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