Houston v. Pettigrew

• Decision Date: 21 June 1960
• Docket Number: No. 38753,38753
• Citation: 1960 OK 152,353 P.2d 489
• Parties: Irene Rowan HOUSTON, Plaintiff in Error, v. Irene Edna PETTIGREW, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 489

353 P.2d 489

1960 OK 152

Irene Rowan HOUSTON, Plaintiff in Error, v. Irene Edna PETTIGREW, Defendant in Error.

No. 38753.

Supreme Court of Oklahoma.

June 21, 1960.

Syllabus by the Court.

Where the trial court states in substance, as one of his reasons for granting plaintiff a new trial, that he is of the opinion that an improper question propounded to a witness by counsel for defendant served to prejudice the jury, and this court cannot say with certainty that the jury was not in fact prejudiced by the asking of said question, we will not reverse the trial court.

Appeal from District Court of Tulsa County; Eben L. Taylor, Judge.

Action by plaintiff to recover damages sustained upon automobile in which she was a passenger colliding with automobile operated by defendant. Jury returned a verdict for defendant. Plaintiff filed a motion for new trial. From order sustaining motion for new trial, defendant appeals. Affirmed.

Rucker, Tabor & Cox, Joseph M. Best, O. H. 'Pat' O'Neal, Tulsa, Okl., for plaintiff in error.

Ladner, Livingston & Ladner, by John Ladner, Tulsa, Okl., for defendant in error.

BERRY, Justice.

Defendant in error, Irene Edna Pettigrew, hereafter referred to as 'plaintiff', instituted this action against plaintiff in error, Irene Rowan Houston, hereafter referred to as 'defendant', and Mary Alice Hausner to recover damages allegedly resulting from personal injuries sustained in a collision involving an automobile operated by defendant and one operated by Mrs. Hausner. Plaintiff was a passenger in the automobile operated by Mrs. Hausner.

Prior to trial of the case, plaintiff negotiated a settlement with Mrs. Hausner and subsequently dismissed her action as to Mrs. Hausner. The case as to defendant proceeded to trial to a jury which on conflicting evidence returned a verdict in favor of defendant. Plaintiff timely filed a motion for new trial. From Order granting a new trial, defendant perfected this appeal.

In her motion for new trial, plaintiff asserted a great many alleged errors. One of the alleged errors was that defendant's counsel improperly questioned the highway patrolman who investigated the accident in controversy and another alleged error was that the trial court erred in refusing to give plaintiff's requested Instruction No. 7. At the hearing on the motion for new trial, and after the trial court made known that said motion would be sustained, defendant requested that the trial court state the reasons for granting a new trial. Pursuant to said request, the court stated that a new trial was granted because of error resulting from counsel for defendant improperly examining the patrolman and for the further reason that some of the matter incorporated in plaintiff's requested Instruction No. 7 was not included in the instructions given. In view of the fact that we are of the opinion that a new trial was properly granted because of the error first referred to by the trial court, we will not consider other alleged errors urged by plaintiff.

The patrolman appeared as a witness for defendant. After counsel for defendant made inquiry relative to his name and length of service in the Department of Public Safety, this transpired:

'Q. All right, sir. Now, Mr. Day, on February 18, 1956, do you recall whether or not you were on duty at that time? A. February 18 I should have been.

'Q. I did not say what time, did I? A. No.

'Q. Well, in the evening of that day? A. Yes, sir, I should have some reference on that date.

'Q. Let me hand you this, is that your signature? A. Yes, sir.

'Q. Is that a photostatic copy of the report that you filled out shortly following this accident and sent into Oklahoma City? A. Yes, sir.

'Q. In other words, you fellows have to make official reports?'

Counsel for plaintiff interposed an objection to the last above quoted question on the grounds that the report was not admissible in evidence and that the question propounded was highly prejudicial and moved for a mistrial. Counsel for defendant stated that the report was handed the highway patrolman in order to refresh his memory, and on said statement being made, plaintiff's objection was denied.

The patrolman was then asked if he investigated the accident. Upon answering in the affirmative he was asked who the driver of one of the vehicles was and the patrolman replied that he would 'have to refer to my notes'. Upon being asked the name of the driver of the other vehicle he gave the same reply. He was then asked if there was a stop sign at the intersection where the accident occurred and whether he talked with plaintiff and defendant and other witnesses relative to 'what happened' at point of the collision. The patrolman answered these questions in the affirmative. He was asked if any witness mentioned that any vehicle did not have its lights on; that if he had obtained such information would he have made a note of it; that 'you have a special place to make note of it, as well as in your comments, don't you?' The patrolman answered 'Yes, sir.' to the last referred-to question. He was then asked 'Did you? Will you check the report?' Counsel objected to said question on the grounds that the answer would constitute hearsay evidence, which objection was sustained. The following questions were then propounded:

'Q. (By Mr. Best) You investigated this thoroughly? A. Yes, sir.

'Q. From your investigation, from your talking with all these people, witnesses, everyone else, could you find where Mrs. Houston had done anything wrong?'

Counsel for plaintiff objected to the question last above quoted on the grounds that the question was highly prejudicial and could only be intended to inflame the minds of the jury. After sustaining the objection the court admonished the jury as follows:

'The Court: Well, the answer to the last question and the question asked by counsel for the defendant, you will not regard that, the Court has held that that was not a proper question at this time.'

Counsel did not question the patrolman further on direct examination. The only relevant and competent evidence developed by the direct examination of the patrolman, concerned undisputed facts established by testimony of other witnesses.

It is apparent that during the material portion of referred-to examination of the patrolman, the patrolman had in his possession a photostat copy of the report that he had made and filed with the Department of Public Safety relative to his investigation of the accident; that in using the word 'notes', the patrolman was referring to said report; that the jury no doubt realized that the patrolman had the report in his possession; that plaintiff objected to same being introduced in evidence; and that if it were necessary for the patrolman to examine the report in order to give the evidence that he gave, it would also be necessary for hinm to examine the report in order to answer the question last above quoted.

We have held that the report of a highway patrolman is not admissible in evidence. See Hadley et al. v. Ross, 195 Okl. 89, 154 P.2d 939, Bison Transports, Inc. v. Fraley, 205 Okl. 520, 238 P.2d 835, and Maben v....