Horn v. Sturm

• Decision Date: 16 March 1965
• Docket Number: No. 40750,40750
• Citation: 1965 OK 52,408 P.2d 541
• Parties: Dr. John E. HORN and Dr. F. R. First, Plaintiffs in Error, v. Loyd G. STURM, Administrator of the Estate of Patricia McElmurray Sturm, deceased, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 541

408 P.2d 541

1965 OK 52

Dr. John E. HORN and Dr. F. R. First, Plaintiffs in Error, v. Loyd G. STURM, Administrator of the Estate of Patricia McElmurray Sturm, deceased, Defendant in Error.

No. 40750.

Supreme Court of Oklahoma.

March 16, 1965.

Krehearing Denied and Supplemental Opinion Filed Nov. 23, 1965.

Syllabus by the Court

1. A pleading is 'filed' in substantial compliance with the law relating to filing when by direction of the court clerk it is placed in the clerk's office and beyond the control of the party filing same and thereafter is filed by the clerk in accordance with the parties' prior agreement and understanding.

2. It is the duty of the trial court to safeguard the rights of litigants to a fair trial and where, in the opinion of the court, a party has not been so protected, may grant a new trial to obviate the error which has occurred.

3. Since an order and judgment granting a new trial only places the parties in position to have issues between them retried, the showing to reverse such judgment should be stronger than where it is sought to reverse a contrary one.

Appeal from the District Court of Muskogee County; Leslie Webb, Judge.

Suit for damages wherein the jury returned a verdict for defendants and the trial court thereafter sustained plaintiff's motion for new trial. Affirmed.

Hardy Summers, A. Carl Robinson, Julian B. Fite, Muskogee, for plaintiff in error, Dr. John E. Horn.

Foliart, Shepherd & McPherren, Oklahoma City, for plaintiff in error, Dr. F. R. First.

Paul W. Brightmire, Tulsa, for defendant in error.

BERRY, Justice.

Plaintiffs in Error, defendants in the trial court, have appealed from an order entered by the trial judge sustaining a motion for new trial by defendant in error, plaintiff below.

The action originally was brought by plaintiff to recover damages for wrongful death of plaintiff's decedent, alleged to have resulted from various acts and omissions of defendants which were charged to have constituted medical malpractice. Trial to a jury resulted in a verdict for defendants, following which plaintiff filed motion for judgment notwithstanding the verdict and motion for new trial. During trial a demurrer had been sustained and the action dismissed as to one defendant, which action provided a separate appeal by that defendant and requires no consideration herein. The appealing defendants filed motion to strike plaintiff's motion for new trial. All motions were heard contemporaneously, and at conclusion of the hearing the trial court sustained the motion for new trial against the named defendants. The trial court also overruled defendants' separate motion attacking the motion for new trial upon the ground same was not filed within time, and upon other grounds.

Each defendant has fuiled separate brief attacking the propriety of the trial court's action, the claims for reversal being presented under numerous propositions and subdivisions of argument. Much of the argument individually advanced can be considered together, being based upon the same matters and rulings by the trial court. One contention advanced is that it was reversible error to grant new trial as to one defendant since the evidence was insufficient to support any judgment against this defendant. Since the matters hereinafter discussed are dispositive of the appeal, and because the case must be retried, we decline consideration of those contentions and supporting argument based upon the asserted insufficiency of the evidence to support any verdict for plaintiff and against a particular defendant.

The matters which provide the basis of this appeal are disclosed by the following summation. Trial of this case consumed nearly two weeks' time. At the close of the evidence the trial court consumed more than an hour's time instructing the jury. The proceedings in the jury room consumed an hour and fifty-one minutes to return a verdict for defendants signed by ten jurors.

Plaintiff's motion for new trial alleged numerous errors and irregularities occurring during the trial which prevented plaintiff from having a fair trial, including claims of bias and prejudice on the part of certain jurors. Certain of the matters relied upon were supported by affidavits of participating jurors, and concerned the nature and conduct of deliberations in the jury room.

By written motion defendants moved to strike the motion for new trial, or to strike portions thereof, upon grounds same was improper and, being supported by affidavits of jurors, was in violation of law as invading the privacy of the jury room. The motion also charged that plaintiff's motion for new trial was not filed within time allowed by law. In answer to plaintiff's motion the defendants also filed written response, likewise supported by affidavits of individual jurors, tendered as establishing the falsity of the affidavits offered in support of the motion for new trial. On hearing the trial court denied defendants' motion to strike the affidavits in support of the motion for new trial, for the stated reason that to pass upon the motion for new trial it would be necessary to consider the jurors' affidavits tendered by both sides.

Both defendants contend the trial court erred in refusing to strike plaintiff's motion for new trial for the reason same was not filed within the time permitted by law. After first refusing to hear defendants' motion to strike for the reason defendants had filed response thereto supported by jurors' affidavits, the trial court did hear evidence relative to whether the motion for new trial was timely filed, whereby the following matters were disclosed.

Trial of the case was concluded on April 12, 1963, hence the statutory time for filing expired April 22, 1963. On the last day one of plaintiff's counsel advised a deputy court clerk of the possibility presentation of the motion might be delayed, and was told the clerk would be available for filing the motion. About 10 p. m. that evening the attorney telephoned the deputy who declined to come to the clerk's office at that hour, but directed that the motion be placed under the locked office door and it would be considered filed. Upon opening the office early the next morning, April 23rd, the deputy clerk found the motion on the floor and thereupon, in accordance with his agreement, marked the document as filed on April 22nd. The factual circumstances relative to the motion having been handled in this manner were corroborated by the deputy clerk's testimony. The deputy also testified such procedure was an established custom, engaged in to accommodate the attorneys in that county. In overruling defendants' motion the court found that filing of plaintiff's motion by delivery to the clerk's office, at the deputy's direction and instigation, was permitted under the procedure which had become an established custom in that county.

Defendants urge although the general rule governing filing motions outside the clerk's office has been relaxed to the extent of holding that delivery to the clerk wherever found constitutes filing, (Bauer v. Samples, 181 Okl. 161, 72 P.2d 813) nevertheless it is delivery and personal receipt by the clerk which is the governing factor. Thus defendants assert that although plaintiff may have placed the motion beyond control, the factor of personal delivery was lacking and our prior holdings do not indicate that a pleading can be considered filed under such circumstances.

We have held consistently that delivery of a pleading to an officer designated by law to receive same, with intention that it be received as a filing without regard to the place of receipt constitutes substantial compliance with the law. McIntosh v. Palmer, 172 Okl. 367, 48 P.2d 815; Bauer et al. v. Samples et al., supra. Under this rule no complaint could be made of the instant filing had the motion been delivered to the deputy clerk at his home, or handed to him during the course of travel upon a highway outside Muskogee County. We are not concerned with the plea that the rule as to delivery for filing cannot be varied by custom. Rather, it seems that the controlling question is whether finding of substantial compliance by personal delivery imports that alone, or whether substantial compliance with filing requirements was made under circumstances revealed in the present case.

It is our opinion, and we hold, that the instant motion for new trial was filed in substantial compliance with the requirements for filing of pleadings. We reach this conclusion for these reasons: (1) the method used by plaintiff's counsel in placing the pleading under the door of the clerk's office was in direct response to the clerk's direction; (2) handling of the pleading in this manner placed the pleading in the clerk's hands as effectively as if the clerk personally had come to the office and received same, unlocked the door and placed the instrument on a desk and relocked the door without affixing the filing stamp at that time; (3) the pleading was effectively placed beyond counsel's hands within the time allowed for filing. We see no fatal difference between delivery to the clerk at his residence, and delivery to the clerk's office at his specific direction. The motion to strike plaintiff's motion for new trial upon such ground properly was overruled.

Defendants' second claim of error arises from the trial court's refusal to strike plaintiff's motion for new trial and the affidavit attached in support thereof. These affidavits encompassed three features or phases of the trial as hereinafter detailed.

1. Two affidavits were executed by jurors who participated in the trial. These affidavits dealt with remarks of certain jurors indicating predisposition to decide the case for defendants without considering the evidence; that the action was trumped up so certain persons could make some money from these doctors; that such suits should not be brought as it only served to ruin the doctors'...