Lawton Transit Mix, Inc. v. Larson

Decision Date06 May 1969
Docket NumberNo. 41686,41686
PartiesLAWTON TRANSIT MIX, INC., Plaintiff in Error, v. Magdaline LARSON, Defendant in Error.
CourtOklahoma Supreme Court

Syllabus by the Court

1. If it appears that there has been misconduct in a trial, or prejudicial matter has been allowed to go to the jury, the aggrieved party may move the court to declare a mistrial but failing in that, he will be deemed to have taken his chances with the jury.

2. Prejudicial remarks of counsel in his argument to the jury are not available as a ground for reversal unless objected to and exception taken at the time such remarks were made, and the remarks, as well as the objection and exception thereto, must be shown in the record of the proceedings of the trial.

Appeal from the District Court of Comanche County; Luther Eubanks, Judge.

Action for personal injuries resulting from an auto-truck collision. After verdict and judgment for plaintiff, and the overruling of defendant's motion for a new trial, the defendant appeals. Affirmed.

Nicklas, Parrish & Saenz, by W. F. Parrish, Jr., Lawton, for plaintiff in error.

Rhoads, Ashton, Johnson & Schacher, by Githen K. Rhoads, Lawton, for defendant in error.

McINERNEY, Justice.

This is an appeal by Lawton Transit Mix, Inc. (Defendant) from a judgment based on a verdict by a jury awarding Magdeline Larson (Plaintiff) damages for personal injuries suffered when plaintiff's automobile was struck from the rear by defendant's cement truck.

Both vehicles were proceeding north in the left lane toward an intersection in Lawton, Oklahoma. The vehicles entered the 'left turn lane only' at the traffic controlled intersection. Plaintiff indicated her turn by activating her left turn blinkers. As she approached the point at which she was to begin her turn, the signal light controlling the turning of vehicles changed from amber to red and she stopped. After stopping, she noticed in her rear view mirror that defendant's vehicle continued moving forward. Plaintiff removed her foot from the brake and immediately her car was struck, knocking it some eight feet forward. Plaintiff was injured in the collision.

Medical testimony was introduced by plaintiff. Generally, the evidence demonstrated that plaintiff had a congenital anomaly in her back from birth. She experienced no difficulty or pain from this defect before the accident. She testified that before the accident she was an able bodied woman and could bat a ball as good as her four children. She added that after the accident her ability to do even ordinary ironing and housework was a painful ordeal. A spinal fusion was performed. The surgeon testified concerning the causal connection between her pre-existing back condition that was dormant and the resultant effect caused by the accident. The medical testimony is not seriously challenged.

Defendant's assignments of error are (1) permitting the introduction of irrelevant and immaterial evidence which incited passion and sympathy in the minds of the jury, (2) permitting improper cross-examination of the driver of defendant's truck about matters concerning previous unrelated traffic violations, and (3) permitting misconduct by plaintiff's attorney in the closing argument.

Plaintiff testified that she is the mother of four children dependent upon her for their support; that the father of the children since their divorce, has failed to provide support. She also testified that her second husband had abandoned her after her accident and after she became bedfast and unable to care for her children or do the housework. She further testified regarding her financial domestic difficulties in regard to the cost of educating the children, the rent she pays for their living accommodations, and the amount required for food for such a family.

While we may agree that the bulk of the challenged testimony relating to domestic problems is generally inadmissible, no motion to strike any of the plaintiff's testimony was interposed. Several of the defendant's six objections to her testimony were sustained, others were overruled, some with the court stating limitations or qualifications on the answers. On cross-examination the defendant elicited further evidence of the same nature. The testimony was allowed to go to the jury without a request or motion to exclude any portion from the jury's consideration. Under these circumstances, the admission of the testimony does not constitute error sufficient to justify reversal. Parris v. McCallay, Okl., 424 P.2d 62; Sarkeys v. Haas, Okl., 402 P.2d 894; Colorado Interstate Gas Company v. Lorenz, Okl., 330 P.2d 583; Garret v. Lacquement, Okl., 306 P.2d 696; Martin v. Arnold, 207 Okl. 69, 247 P.2d 517.

The driver of defendant's truck was questioned on cross-examination about previous unrelated traffic mishaps. After a number of questions were asked and the answers given--all without an objection--the plaintiff's attorney asked one question to which the objection was sustained and one question which, after an equivocal answer, evoked a motion by defendant's attorney for the court to instruct the jury 'to disregard the questions propounded by counsel.' This motion was overruled.

Assuming, arguendo, that the ruling is erroneous, we are unable to say, considering the totality of the record, that such error has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. Maynard et al. v. Hustead et al., 185 Okl....

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10 cases
  • West v. Bd. of Cnty. Comm'rs of Pawnee Cnty.
    • United States
    • Supreme Court of Oklahoma
    • 23 Febrero 2012
    ...a loss of earnings, an award will be justified where the nature of the injury supports the same. Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, ¶ 11, 455 P.2d 696. See also, Ellis v. Gurich, 2003 OK 47, 73 P.3d 860 [Order in which it was anticipated that there would be a request for an awa......
  • West v. Bd. of Cnty. Comm'rs of Pawnee Cnty.
    • United States
    • Supreme Court of Oklahoma
    • 20 Diciembre 2011
    ...without demonstrating a loss of earnings, an award will be justified where the nature of the injury supports the same. Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, ¶11, 455 P.2d 696. See also, Ellis v. Gurich, 2003 OK 47, 73 P.3d 860 [Order in which it was anticipated that there would be......
  • Tortorelli v. Mercy Health Ctr. Inc, Case Number: 106073
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 4 Junio 2010
    ...declare a mistrial, but by failing to do so "will be deemed to have taken his chances with the jury." Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, ¶0, 455 P.2d 696, 697. Appellants did not pursue any remedy to ameliorate the effect of the remarks, did not move for mistrial, and have not ......
  • Tortorelli v. Mercy Health Ctr. Inc.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 4 Octubre 2010
    ...move the court to declare a mistrial, but by failing to do so "will be deemed to have taken his chances with the jury." Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, ¶ 0, 455 P.2d 696, 697. Appellants did not pursue any remedy to ameliorate the effect of the remarks, did not move for mist......
  • Request a trial to view additional results

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