Hodo v. Cox

• Citation: 437 P.2d 249
• Decision Date: 03 October 1967
• Docket Number: No. 41635,41635
• Parties: Homer S. HODO, Plaintiff in Error, v. Dan COX, Defendant in Error.
• Court: Supreme Court of Oklahoma

Page 249

437 P.2d 249

1967 OK 205

Homer S. HODO, Plaintiff in Error, v. Dan COX, Defendant in Error.

No. 41635.

Supreme Court of Oklahoma.

Oct. 3, 1967.

Syllabus by the Court

1. The purpose of an objection in the trial is to call the court's attention to errors being committed, so that the court and the opposing party will be advised of them and have an opportunity to correct them.

2. If an objection is sufficient to advise the court and opposing counsel of the error being committed during the trial, it is a 'proper objection' and is sufficient as an objection to preserve for appeal the question raised by such objection, if adversely ruled upon by the court.

3. It is error to admit an opinion as to a fact unless the witness has had some peculiar experience, observation or training in the matter on which he is asked to give an opinion which is not shared by the average juror of ordinary experience and education. The admission of an opinion by a witness who is not possessed of such experience, observation or training is an invasion of the province of the jury.

4. The erroneous admission of an 'expert' opinion by a witness, generally held in high esteem by virtue of his official position, which invades the province of the jury relating to a vital or principal point or to a material fact in the case constitutes reversible error even though the evidence thus given may be cumulative.

Appeal from the Superior Court of Creek County, Bristow Division; G. B. 'Chuck' Coryell, Judge.

Action by Dan Cox against Homer S. Hodo for damages for personal injuries in connection with a collision of vehicles driven by them. Judgment for Plaintiff; Defendant appeals. Reversed and remanded for new trial.

Best, Sharp, Thomas & Glass, Joseph A. Sharp and Joseph F. Glass, Tulsa, for plaintiff in error.

Charles E. Daniel, Drumright, Sam Withiam, Cushing, Tom Wakley, Oklahoma City, for defendant in error.

HODGES, Judge.

This is an appeal by defendant Homer S. Hodo from a judgment upon a jury verdict in favor of plaintiff Dan Cox for damages for personal injuries suffered while operating a pickup truck which was struck by a truck driven by defendant.

Defendant assigns three alleged errors of the trial court upon which he seeks reversal. They are (1) admission of expert medical testimony regarding X-ray findings when the X-ray photographs were not produced for his inspection or introduced in evidence; (2) admission of the investigating officer's opinion that blinker lights of the truck driven by defendant were not in operation at the time of the collision; and (3) admission of the investigating officer's opinion of the speed of the plaintiff's vehicle at the time of the collision.

We will first consider the second assignment, that it was error to admit the opinion of the officer that the blinker lights on defendant's truck were not on immediately prior to the collision.

Plaintiff's petition charged defendant with negligence by failing to give a proper signal for a turn. Defendant answered, and offered evidence, that his blinker lights, indicating a turn, were on; and he charged plaintiff was guilty of contributory negligence in failing to take notice of them. Defendant and one witness said they were on prior to, and at the time of, the collision. Plaintiff said they were not. It appears from all the evidence that, if working, the blinker lights would have been sufficient to give notice of defendant's turn which resulted in his collision with plaintiff.

The officer was asked this question by plaintiff's counsel:

'From your investigation and from your statement, based upon your expert opinion and your training in these matters, do you have an opinion as to whether Mr. Hodo had those blinker lights on immediately prior to the time of the accident?'

Defendant objected as follows:

'Your Honor, we object to this type question unless there is some expert way he knows.'

Plaintiff's counsel responded by observing, 'Maybe he does.' Defense counsel replied, 'All right. Let him tell what it is.' Thereupon the court asked plaintiff's counsel;

'Did you arrive at a determination by reason of your investigation, is that what you're asking?'

When plaintiff's counsel acknowledged the restatement of the question by the court to be the question he was asking, the court permitted an answer. Defense counsel then stated into the record, 'Show our objection.'

Plaintiff argues that the above proceedings do not constitute an objection by defendant to the admission of the officer's opinion concerning the blinker lights.

In Ponca City Building & Loan Co. v. Graff, 189 Okl. 410, 117 P.2d 514, 518, we said:

'The purpose of an objection in a trial is to call the court's attention to errors being committed so that the court, as well as the opposing party, will be advised and have an opportunity to correct them. Such objections are not for the purpose of laying a predicate for a reversal of the judgment on appeal, if the same should be unfavorable.'

It must follow from that statement of purpose that if an objection is sufficient to advise the court and opposing counsel of the alleged error being committed, it is a proper objection upon which to preserve the question thus raised for appeal.

We find the form of defendant's objection, arising as it did in the proceedings above set forth, sufficiently advised the court of the purpose for defendant's objection.

The real basis for the witness' opinion that the blinker lights were not in operation immediately prior to the collision came to light on his cross-examination. He said in substance that he was of the opinion that they were not on immediately prior to the collision because it was not reasonable for one to attempt to pass a truck if the signal lights were on indicating a turn into his lane of travel, and since plaintiff was trying to pass the defendant's truck when they collided, the lights must not have been on.

The implications and presumptions necessary to justify that conclusion are multitudinous, so we will pause to mention but a few. The officer must have presumed that plaintiff was both alert and looking in the direction of the blinker lights. Even with those presumptions his ultimate opinion that the lights were not on was based upon his further opinion of 'reasonable human behavior' under the circumstances of the collision here involved. The officer was not qualified as an expert in that field, and there is no indication that he was possessed of any special knowledge or had had any experience or training in regard to 'reasonable human behavior' under those circumstances which the jury was not likely to have had. No explanation of any application of the witness' expertise was given which would indicate his competence as an expert to render the opinion requested. We are aware of none which could have been given. This opinion is based upon a conclusion similar to the one we rejected in National Zinc Co. v. Crow, 187 Okl. 513, 103 P.2d 560, 562. In that case witnesses were...