Maben v. Lee

• Decision Date: 05 May 1953
• Docket Number: No. 35270,35270
• Citation: 260 P.2d 1064
• Parties: MABEN v. LEE.
• Court: Oklahoma Supreme Court

Page 1064

260 P.2d 1064

1953 OK 139

MABEN v. LEE.

No. 35270.

Supreme Court of Oklahoma.

May 5, 1953.

Rehearing Denied July 14, 1953.

Application for Leave to File Second Petition for Rehearing

Denied Sept. 22, 1953.

Syllabus by the Court.

1. When testimony upon a material issue is erroneously admitted, the fact that such testimony was in some degree cumulative does not relieve such admission of its prejudicial effect.

2. In a negligence action growing out of automobile accident it was reversible error to admit, over defendant's objections, evidence of highway patrolman who investigated accident in course of his official duties, wherein he expressed his opinions and conclusions, based principally upon hearsay evidence, and purported to fix responsibility for such accident.

Q. D. Gibbs, Okmulgee, Pierce, Rucker, Mock, Tabor & Duncan, Tulsa, for plaintiff in error.

Rainey & Barksdale, Okmulgee, Draper Grigsby, Oklahoma City, for defendant in error.

CORN, Justice.

Since the judgment herein appealed from must be reversed it is unnecessary to set out a detailed statement of the issues raised by the pleadings, the evidence relative thereto, or the various contentions urged on appeal.

Plaintiff, Carl Lee, was driving his truck north on Highway 75 near Beggs, Oklahoma. While attempting to turn left off the highway onto a county road he was involved in a collision with a passenger car driven by defendant. As a result of the accident plaintiff brought suit to recover for personal injuries, and damage to his truck, alleging same resulted from various acts of negligence on the part of defendant.

The defendant denied negligence and alleged the collision resulted from plaintiff's negligence. By cross-petition defendant asked damages for loss of his wife's services, resulting from the injuries she received in the same accident, and also sought to recover for damages to his car.

A jury trial resulted in a substantial verdict for plaintiff, upon which the judgment herein appealed from was rendered.

In the opening statement plaintiff's counsel made the following remarks to the jury over defendant's objections.

'After that the accident was investigated by the highway patrolmen and they found that the turn being made by Carl Lee was a proper turn.'

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'That the turn was a proper turn, and the cause of the accident was the negligence of Dr. Maben.'

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'The testimony will show that the charges against the doctor were violation of the rules of the road, to which charges, he plead guilty, and paid a fine.'

By reason of such remarks in counsel's opening statement defendant moved for a mistrial, but the motion was overruled.

During the trial, and as a substantial part of the plaintiff's case, plaintiff introduced the deposition of a highway patrolman (Grady Glazner) who investigated the accident in the course of performance of his duties. The witness was qualified as an expert upon the basis of his training and experience. Defendant objected to practically all of the testimony in the deposition, and same first was read in chambers, out of the jury's presence and defendant saved exceptions to the objectionable matter. The defendant objected to most of this deposition being presented for the jury to consider, and contends on appeal that the trial court committed reversible error in permitting the patrolman's testimony as to his opinions and conclusions, gained by the investigation which he conducted at the scene of the collision and approximately one hour after the collision occurred. The length of the deposition precludes such testimony being set out in full. For this reason we summarize only that part of the patrolman's testimony which defendant urges was prejudicial and inadmissible as invading the province of the jury, since it was testimony upon the ultimate facts in issue, and based entirely upon conclusions and opinions.

Witness did not see the accident, but the two vehicles had not been moved when he arrived at the scene. The accident occurred on a level, straight road at a point where same was intersected by a graveled county road. Upon conducting his investigation the patrolman concluded plaintiff was driving in a proper manner but that defendant had been guilty of 'passing without clearance' and he thereafter filed charges against defendant. Responding to a direct question the witness stated that the accident was caused by defendant, who attempted to pass at an intersection and was unable to stop in the assured, clear distance ahead. The turning lights on plaintiff's truck were burning when he investigated, this being called to his attention. He also testified that following the collision plaintiff's vehicle was nearly in bar ditch while defendant's car traveled some thirty feet in a northwesterly direction from the point of impact, which was three feet east of the west side of the highway, and nine feet south of the north side of the intersecting county road. The witness testified the position of plaintiff's truck resulted from being 'drug or shoved' by the momentum of defendant's car; that there is a definite duty on a vehicle traveling in front, and from his investigation he determined 'there was no proof he (plaintiff) did not comply with it.' When witness made his investigation he ascertained the names of all parties who knew anything about the accident and talked with these people as witnesses.

Plaintiff presents an extended argument in an effort to establish that the evidence complained of was competent, and that no prejudice resulted to defendant by admission thereof. It is urged first that, under various decisions from this court, the rule is that the admission of opinion evidence upon an ultimate fact in issue is not prejudicial where the record reflects the admission of testimony of the same tenor from other witnesses without objection, since the objectionable testimony is merely cumulative. Oskison v. Bagby, 172 Okl. 569, 46 P.2d 331; H. F. Wilcox Oil & Gas Co. v. Jamison Adm'r, 199 Okl. 691, 190 P.2d 807.

But, the rule relied upon is limited by the principle that such evidence must not be of a prejudicial nature. And, whether prejudice resulted from the erroneous admission of such evidence depends upon the facts of the particular case. See 3 Am.Jur., Appeal and Error, Secs. 1027, 1028 and 1029. The latter section states the rule thus:

'* * *. The most general test of prejudice in the admission of evidence is the probability that the evidence thus erroneously admitted influenced the verdict by arousing the sympathy or passions of the jury, or resulted in a miscarriage of justice or a violation of a constitutional or statutory right. Where there is such a conflict in the evidence that a determination either way would not be disturbed on appeal, it cannot be said that the losing party is not prejudiced by material evidence erroneously admitted, and this has been held true even though the evidence was cumulative.

'The fact that the evidence relates to a vital or principal point in the case or to a material fact has been regarded as important upon the subject of its prejudice. * * *'

In the present case the trial court permitted the...