Hopkins v. Stoddard
| Decision Date | 25 September 1956 |
| Docket Number | No. 36952,36952 |
| Citation | 301 P.2d 1001 |
| Parties | Otie Murrell HOPKINS, Plaintiff in Error, v. W. E. STODDARD, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A motion for new trial is addressed to the sound legal discretion of the trial court, and this court will indulge every presumption in favor of the correctness of the ruling of the trial judge sustaining such motion, and such an order will not be disturbed on appeal, unless the record shows clearly that the court erred in a pure and unmixed question of law, or acted arbitrarily or capriciously.
2. Record examined, and found to sustain the order granting a new trial.
Appeal from District Court of Oklahoma County; Francis Stewart, Assigned Judge.
Action by W. E. Stoddard against Otie Murrell Hopkins for personal injuries growing out of an automobile accident. From a judgment sustaining plaintiff's motion for new trial, defendant appeals. Affirmed.
Pierce, Mock & Duncan, and Calvin W. Hendrickson, Oklahoma City, for plaintiff in error.
Charles Hill Johns, Wilbert G. Smith, Oklahoma City, for defendant in error.
W. E. Stoddard, as plaintiff, brought this action against defendant Otie Murrell Hopkins, to recover damages for personal injuries resulting from an automobile accident. After a jury had rendered a verdict for defendant, the trial court sustained plaintiff's motion for a new trial, and defendant appeals. We will continue to refer to the parties as they appeared in the trial court.
The litigation involved the plaintiff as a pedestrian and the defendant as the driver of an automobile. The facts leading up to the accident are not important to or decisive of this appeal.
Plaintiff's petition set forth two theories of liability, namely, deliberate acts on the part of the defendant and also negligent acts on the part of defendant in connection with the accident. The defendant filed a motion to require the defendant to elect as between his theories which resulted in the defendant filing an amended petition in which he set forth two separate causes of action, the first one based upon deliberate conduct and the second based upon negligent conduct. Defendant filed a motion to this amended petition to require the plaintiff to elect between his causes of action. This motion was denied and defendant allowed an exception.
On the day of trial, and before the beginning of the trial, the plaintiff, in open court, on his own motion, filed a pleading with the deputy court clerk, the pertinent part of which, after omitting the caption, reads, as follows:
'Election of Plaintiff
'That plaintiff elects to proceed to trial in this cause upon the cause of action denominated 'Second Cause of Action' in his first amended petition, eliminating from this cause all allegations concerning alleged deliberate and malicious conduct on the part of defendant, but standing upon plaintiff's allegations of carelessness and negligence, all as set forth in said Second Cause of Action.'
During the argument before the jury defendants attorney, over the objection of plaintiff, read a part of plaintiffs amended petition which pertained to the allegations of the deliberate and malicious acts on the part of defendant. Defendants counsel also at this point, over the objections of plaintiff, argued from certain testimony of plaintiff as to the deliberate and malicious acts on the part of defendant, which testimony was contained in a deposition taken by defendant prior to the trial. The objections to this line of argument was to the effect that such argument was improper and prejudicial since after the filing of the pleading in which plaintiff elected to eliminate such allegations from the amended petition the question of malice was no longer an issue in the case. The court overruled the objections and permitted such argument but it was stipulated by counsel for both plaintiff and defendant, with the approval of the court, that further argument could be made on such objections at the conclusion of the argument to the jury.
After the verdict was returned the court had an extensive hearing on...
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National Trailer Convoy, Inc. v. Saul
...within the scope of his agency, was immaterial. National cites Gypsy Oil Co. v. Colbert, 179 Okl. 321, 65 P.2d 505, and Hopkins v. Stoddard, Okl., 301 P.2d 1001, with the inference that both cases involved inconsistent theories of liability. Neither case is applicable to the present one. He......