Joly v. Safeway Stores, Inc.

• Decision Date: 31 October 1972
• Docket Number: No. 4089,4089
• Citation: 502 P.2d 362
• Parties: Louis C. JOLY, Appellant (Plaintiff below), v. SAFEWAY STORES, INC., a foreign corporation, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 362

502 P.2d 362

Louis C. JOLY, Appellant (Plaintiff below), v. SAFEWAY STORES, INC., a foreign corporation, Appellee (Defendant below).

No. 4089.

Supreme Court of Wyoming.

Oct. 31, 1972.

G. L. Spence and Robert R. Rose, Jr., Casper, for appellant.

R. R. Bostwick and David Scott, of Murane, Bostwick, McDaniel, Scott & Greenlee, Casper, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

Mrs. Joly, appellant herein, filed suit against Safeway Stores, Inc., appellee herein, for injuries resulting from a fall in the parking lot of Safeway at Lander, Wyoming, on November 17, 1969. Upon motion for change of venue this case was moved to Natrona County for trial. The jury returned a verdict for the defendant and from this verdict Mrs. Joly appealed. Although the facts are argued at length in both briefs, we are not called upon to discuss these so a statement thereof would be superfluous.

Mrs. Joly's first asserted ground for reversal involves a most unusual, unfortunate, and unhappy incident, which is now claimed to have been inherently prejudicial. During the course of the trial but prior to the presentation of any testimony, counsel for Mrs. Joly called the attention of the court to the fact that there had appeared on a local television station and radio station in that community a news story about the parties in the pending case. In summary, the public was advised that Mrs. Joly was suing Safeway for an injury incurred in an accident at Lander; that she was the wife ot Tony Joly, who had some time before received the largest verdict ever returned in a Wyoming court, and this had been reversed by the supreme court on appeal. Counsel suggested this was most unfair and injected into the case a matter the jury should not have had. He mentioned the possibility of prejudice to both defendant and plaintiff, dependent on the view the jury took or their understanding of the story. He further stated that upon inquiry of the reporter at a radio station as to his source he had been advised that the story had come from the judge presiding; that he, the reporter, had referred his information to the Associated Press chief in Cheyenne, and the story had been put together from the files. The judge assured counsel that although he had mentioned the fact that people of the same surname had been involved in another case that he supplied no details; that he had no idea what the reporter had found by research. Apparently after some argument or other proceedings the court proceeded with the trial. Both parties announced they were ready to proceed and there was no objection by the appellant. The judge addressed the jury and ascertained four of the six had heard the newscast either by radio or television, that one had not heard it, and another remembered only vaguely having heard some story. The court made further inquiry of the jurors individually, inquiring if they could fairly without bias or prejudice decide the case upon the facts presented, and each of the jurors answered that they could and would decide the case on the evidence presented at the trial and that it would make no difference. The judge advised them they should be wholly frank with him if they did not think they could disregard the information and decide solely on that came to them in court and should so advise him, but none did.

There was no motion for mistrial or objection to proceeding by appellant and the trial did proceed. Neither was the question presented to the trial court by motion for new trial after the verdict. Hence the trial judge has never been asked to rule upon this question to this date, although appellant now insists this was inherently prejudicial and seeks to have this case reversed upon the basis of this news release. Our Rule 46, W.R.C.P., provides that formal exceptions to the rulings of the court are unnecessary but it does require that in order to secure benefit of this rule that at the time the ruling or the order is sought the party make known to the court the action he desires or his objection to the action and his grounds therefor. It is basic that an appeal must be from a ruling of the court and the only exception to this rule is when such act constitutes a fundamental error such as lack of jurisdiction, Steffens v. Smith, Wyo., 477 P.2d 119, 121; Gardner v. Walker, Wyo., 373 P.2d 598, 599. This court has heretofore considered the application of this particular rule in the case of Bates v. Donnafield, Wyo., 481 P.2d 347, 350, holding that a party could not argue error based on the refusal of an exhibit in the absence of an objection and statement of the grounds therefor. It has further been held that the court would not consider the complaint of a party seeking to raise a question regarding the filing and entry of a pretrial conference order in the absence of a request or objection, Caillier v. City of Newcastle, Wyo., 423 P.2d 653, 656; Ramsay v. Boland, Wyo., 364 P.2d 824, 825. It is firmly established that improper argument of counsel cannot be raised or urged for reversal in the absence of an objection, Logan v. Pacific Intermountain Express Company, Wyo., 400 P.2d 488, 494; Edwards v. Harris, Wyo., 397 P.2d 87, 95. These cases are most persuasive.

The case of Fleming v. Lawson, 10 Cir., 240 F.2d 119, 122, is directly applicable wherein it was said:

'Although we are of the opinion that defendant could properly have sought a mistrial after his apprehensions became a reality, no such relief was sought. Absent such a motion, it is fundamental that he cannot await the outcome of the jury's action and then claim prejudice from an unfavorable verdict. (Citing cases.)'

It has earlier suggested in a criminal case that in the absence of a motion for mistrial there was no foundation for asserting a right later, Borrego v. State, Wyo., 423 P.2d 393, 395. The Supreme Court of Montana, in the case of Herren v. Hawks, 139 Mont. 440, 365 P.2d 641, 644-645, gives a rather complete...