Love v. Harvey

• Citation: 448 P.2d 456
• Decision Date: 17 December 1968
• Docket Number: No. 41760,41760
• Parties: Eva DeLoise LOVE, Plaintiff-Error, v. J. B. HARVEY, Defendant-in-Error. SOUTHWESTERN INSURANCE COMPANY, an Oklahoma Corporation, Plaintiff-in-Error, v. J. B. HARVEY, Defendant-in-Error.
• Court: Supreme Court of Oklahoma

Page 456

448 P.2d 456

Eva DeLoise LOVE, Plaintiff-Error, v. J. B. HARVEY, Defendant-in-Error.

SOUTHWESTERN INSURANCE COMPANY, an Oklahoma Corporation, Plaintiff-in-Error, v. J. B. HARVEY, Defendant-in-Error.

No. 41760.

Supreme Court of Oklahoma.

Dec. 17, 1968.

Syllabus by the Court

1. Where, after judgment based on a verdict for plaintiff in a tort action, defendant's claim of error, in her appeal from the trial court's order overruling her motion for a new trial, was based upon the fact that she had to use one of her peremptory challenges to excuse a prospective juror, whose wife was employed by one of plaintiff's medical witnesses, and the further fact that the jury's foreman had not voluntarily disclosed, on voir dire examination, that she had previously suffered similar injuries from the same kind of a tort, as formed the basis of plaintiff's action, the denial of the new trial was not error under the circumstances, and in the absence of a showing of prejudice.

2. Where although a garnishee insurance company's answers to such a judgment creditor's interrogatories may show that it issued an insurance policy to cover damages from bodily injuries under a certain monetary limit and that said policy was in effect during the period in which said garnishee's tort claim arose, but, in its answer to the garnishment summons, the garnishee denied it was indebted to the judgment debtor, or owed her money or property, and the garnisher filed a combined Notice Of Election To Take Issue on Garnishee's Answer, and a Motion For Summary Judgment, the court erred in sustaining the latter motion without a trial of the issues joined, as indicated, or the introduction of any evidence.

Appeals from the District Court of Oklahoma County; W. P. Keen, Assigned Judge; Glenn O. Morris, District Judge.

Appeal from an order and/or judgment overruling defendant's motion for a new trial in a tort action docketed as No. 41760, consolidated with a garnishee's appeal from a summary judgment, docketed as No. 41995. Judgment in tort action affirmed; judgment in garnishment proceedings reversed and remanded.

Jake Hunt, Oklahoma City, for plaintiffs in error.

Frank Miskovsky, Marian P. Opala, Oklahoma City, for defendant in error.

BLACKBIRD, Justice.

After a trial by jury, J. B. Harvey, defendant in error in the above captioned appeals, recovered a judgment, as plaintiff, in accord with the jury's verdict, in District Court Cause No. 159563, against the defendant therein, Eva DeLoise Love, in the sum of $10,000.00, on account of personal injuries and property damages he sustained when the Mercury automobile said defendant was driving, collided with the one in which he was riding (on April 29, 1962). Thereafter, said defendant filed a motion for a new trial on several grounds, but the only ones pertaining to the issues in this appeal, were as follows:

'* * *

'II.

'Error of the court in refusing to excuse juror, Mr. Karnes, for cause requiring the defendant to exercise one of her peremptory challenges to excuse said bias and prejudiced juror.

'III.

'Misconduct on the part of juror Mrs. Murray, in that said juror wilfully answered untruthfully questions propounded to her by counsel for the parties, and thereby said defendant was prevented from having a fair and impartial verdict. * * *.'

After a hearing on said motion, the trial court entered its order and/or judgment overruling it, and the defendant lodged her appeal therefrom, as this court's Cause No. 41760, supra.

Before her appeal was filed here, or the above mentioned judgment had been superseded plaintiff Harvey, her then judgment creditor, caused execution to be issued on said judgment, and, after it was returned unsatisfied, commenced, in the same district court cause, proceedings for garnishment in aid of execution, by filing his garnishment affidavit alleging his belief that Southwestern Insurance Company, plaintiff in error in the above captioned appeal No. 41995, supra, hereinafter referred to as 'garnishee', had property of the defendant under its control, or was indebted to her. After said garnishee had filed its verified answer denying, in substance, that it was indebted to defendant or had in its possession any money or property owned by her, plaintiff caused interrogatories to be served upon it.

After said garnishee had filed its answer to said interrogatories, plaintiff filed a joint notice of its election to take issue on said answer, and a motion for summary judgment, pursuant to Rule 13 of the Rules adopted by this Court for the District, Superior and Common Pleas courts of this State, effective January 1, 1962 (O.S., 1967 and 1968 Supp., Tit. 12, Chap. 2, Appendix). The trial court sustained said motion and entered judgment, in accord therewith, against the garnishee. Thereafter, said garnishee perfected an appeal from said judgment to this court, docketed here as its above captioned Cause No. 41995.

Thereafter, on motion of the garnishee, concurred in by plaintiff, this court entered its order consolidating the two above described appeals under Cause No. 41760, supra.

Under the first 'Proposition' defendant urges for reversal of the trial court's above mentioned order overruling her motion for new trial, she complains of having to use one of her peremptory challenges to dismiss the afore-mentioned Mr. Karns from the jury panel, after her counsel challenged him for cause, and the court had rejected, or denied, said challenge. Her position that the court should have sustained her said challenge, thus saving her one of her three peremptory challenges for use on some other prospective juror, is based upon statements elicited from Karns during his voir dire examination. Under interrogation during said examination, Karns revealed that a Dr. M, one of plaintiff's expert medical witnesses, had, for about two weeks, been an employer of his wife at the medical clinic where he and two other physicians practiced. Thereafter, in answer to other questions asked of him during said voir dire examination, Karns stated, in substance, that he was not personally acquainted with Dr. M, and that the fact that this doctor was one of Mrs. Karns' employers would not cause him, if he became a juror in the case, to give more weight to Dr. M's testimony, than if that relationship did not exist, nor would it influence his deliberations, or affect his participating in the verdict arrived at, in the case. Immediately thereafter, however, Karns' voir dire examination, as it was recounted for the record, to Karns, by defense counsel, proceeded as indicated below:

'Q Then I asked you the question that considering those things, if you were sitting as a juror, I mean, if you were sitting as a defendant in the case, knowing the frame of mind that you're in, and the fact that the prospective juror that would be sitting to judge your case, if you were defendant, was working for Dr. M(Deleted), and Dr. M (Deleted) was going to be called as a witness on behalf of the plaintiff, I asked if you would want that juror to sit as a juror in your case as defendant, and I believe your answer was, no, I would not, is that correct, in substance, the statement of the question asked and the answer that you gave?

'A Yes, sir. * * *.'

Defendant contends, on the basis of the above quotation, that, if Karns felt that he would not have wanted a man in his situation, and frame of mind, on the jury, had he been the defendant in the case, 'then certainly the trial court should have excused him for cause in the instant action.'

There is no merit to defendant's conclusion from this, that she was denied a 'fair trial', merely because she was compelled to use one of her peremptory challenges to excuse Karns from the jury. Stillwell v. Johnson, Okl., 272 P.2d 365, in which she says we followed Kerby v. Hiesterman, 162 Kan. 490, 178 P.2d 194, does not support such a conclusion. There, the prospective juror answered Incorrectly questions on voir dire examination concerning his qualifications, And he was accepted as a juror, and participated in the verdict. Here, nothing like that occurred. In Kansas City Southern Ry. Co. v. Johnston, Okl., 429 P.2d 720, cert. den., 389 U.S. 985, 88 S.Ct. 481, 19 L.Ed.2d 471, we demonstrated that, in a situation like the present one, we follow the rule under Tit. 38 O.S.1961, § 29, that the forced use of a peremptory challenge to excuse a juror, even if he should have been excused for cause, is not, in and of itself, sufficient ground for reversal of a judgment in accord with the verdict. We apply that principle here, and reject defendant's contention.

Defendant's argument, under her Proposition II, is based upon the revelation that the jury's foreman, Mrs. Murray, made, for the first time in the case, at the hearing on defendant's motion for new trial, that, at the time she was examined on voir dire and accepted as a juror in the case, she had been involved in, and had received whiplash injuries in, an automobile collision herself. Defendant makes no direct charge (as alleged in her hereinbefore quoted motion) that Mrs. Murray answered untruthfully any question propounded to her on her voir dire examination, but she argues that, from questions propounded to other prospective jurors on the same panel, Mrs. Murray should have known that, having had such an accident, would raise serious questions in defense counsel's mind about her qualifications, or desirability, as a juror, and that she should have voluntarily revealed, on her own initiative, the facts about her own accident, during her voir dire examination. Her counsel says: 'Whether the absence of Mrs. Murray as a juror would have made any difference in the verdict is not the test, but, rather the fact that she failed to reveal material information that could have lead to her being excused from jury service in that case. Her failure to do so denied the defendant a fair trial and it was an abuse of discretion on the part of the...