Montgomery v. Murray

• Decision Date: 08 December 1970
• Docket Number: No. 42553,42553
• Citation: 481 P.2d 755
• Parties: Roy D. MONTGOMERY, Plaintiff in Error, v. Beverly Ann MURRAY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 755

481 P.2d 755

Roy D. MONTGOMERY, Plaintiff in Error, v. Beverly Ann MURRAY, Defendant in Error.

No. 42553.

Supreme Court of Oklahoma.

Dec. 8, 1970.

As Amended March 15, 1971.

Rehearing Denied March 16, 1971.

Syllabus by the Court

1. Where defense counsel in the trial of a tort action to a jury, propounds to plaintiff, without objection, questions which appear to be preliminary to subsequently introducing evidence to impeach her, but counsel does not follow this by the introduction of impeaching evidence, such interrogation must be regarded as harmless, where it is not claimed to be such misconduct as usually results in 'beneficial prejudice', and, on the basis of the record, there is nothing to indicate that the verdict would have been different, if the interrogation had not occurred.

2. Where a trial court grants plaintiff a new trial on account of certain interrogation of her, by defense counsel, and, for all that the record shows, such interrogation was harmless and had no effect upon the jury's verdict, said court errs and abuses his discretion.

Appeal from the District Court of Oklahoma County; Boston W. Smith, Judge.

Action for damages for personal injuries arising out of a rear-end auto collision near a street intersection. After verdict and judgment for defendant, the trial court sustained plaintiff's motion for a new trial and defendant appeals. Reversed.

Clarence P. Green, Oklahoma City, for plaintiff in error.

Monnet, Hayes, Bullis, Grubb & Thompson, Oklahoma City, for defendant in error.

BLACKBIRD, Justice:

The broad issue in this appeal is whether the trial court's order sustaining a motion for new trial in a rear-end automobile collision case should be affirmed or reversed.

The collision occurred when an automobile driven by defendant in error, hereinafter referred to as 'plaintiff', stopped, facing north, behind two other automobiles facing in the same direction, on Oklahoma City's South May Avenue, where it intersects with a cross-street extending in an easterly and westerly direction. While plaintiff's car was thus stopped, waiting in line to move ahead, an automobile driven by plaintiff in error, hereinafter referred to as 'defendant', traveling in the same direction behind it, struck it in the rear.

Thereafter, plaintiff instituted the present action for the recovery of $7,500.00 in damages against defendant on account of personal injuries she suffered in the collision, allegedly caused by defendant's negligence in the operation of his automobile, sometimes hereinafter referred to as 'D car'. In addition to his alleged negligence in other respects, plaintiff's petition charged defendant driver with negligence in failing to use his car's braking and steering mechanism in such a way as to avoid the collision. According to plaintiff's pleading, the collision's impact threw her in and about the interior of her car (sometimes hereinafter referred to as 'P car') and, as a result, the 'muscles, tendons ligaments, soft tissues, bony structures, blood vessels and nerve centers' in her 'entire spine, back, neck and shoulders were pulled, strained, torn, traumatized, and their functions impaired.' Plaintiff further alleged that she 'suffered a blow to her left elbow, causing injury to the muscles, tendons, ligaments and bony structures' thereof.

In his answer, defendant admitted his car collided with the rear end of P car, but denied that the collision was due to his negligence. He alleged it was an unavoidable accident, due to a sudden failure of his car's braking mechanism, resulting in his being confronted with a sudden emergency, without fault on his part.

After the filing of a reply, in which plaintiff denied the allegations of defendant's answer, the case was tried to a jury.

At the trial, Dr. S, a general physician, who testified he had been treating plaintiff professionally for almost two years before the collision, further testified that plaintiff came to him for treatment of her injuries from the collision, approximately a week after it occurred. According to Dr. S's testimony, plaintiff had some of the same symptoms commonly associated with whiplash injuries including a slight straightening of the normal curvature of the spine, which he claimed was revealed by the x-ray pictures he had taken the next day, and which were apparently introduced in evidence as plaintiff's Exhibits Numbered 1 and 2. Dr. S further testified that he treated plaintiff periodically for about five months after the collision, and, though her condition had definitely improved, she was still under his care. He further testified that his treatment of plaintiff consisted of administering heat, and muscle relaxants, and pain medication, together with prescribing rest of the neck muscles 'as much as possible' and 'use of a special pillow at night to try to keep any strain at all off any of the neck muscles', so they would relax. Dr. S gave an affirmative answer when plaintiff's counsel asked him if her injury was disabling, and further testified that it prevented her from performing the duties of a housewife with three children 'for at least the first five or six months of the injury.'

With obvious reference to the left elbow injury described in the hereinbefore quoted allegation of her petition, Dr. S also testified that plaintiff did not apprise him of the bruise on her left elbow until 'a couple of months' after he first examined her, and that, by that time, the 'bruise was gone.' This Doctor further testified that this was 'rather a minor injury' and had 'cleared up * * *' When plaintiff's counsel asked the Doctor if he would expect plaintiff to suffer from her other injuries in the future, he answered in the affirmative, and further testified: 'She does have pain once or twice a week now which is not terribly severe * * * she may get along fine.' When plaintiff's counsel attempted to inquire concerning her medical bills, defense counsel objected on the ground that no such item was included in the damages she sought, and introduction of evidence concerning plaintiff's medical expenses was never again attempted.

When plaintiff was interrogated on direct examination about the slight damage to her car, caused by the collision, she introduced no evidence as to the cost of repairing it, but testified, in substance, that she drove it from the time of the collision in September, until the next June, when she traded it. She further testified that D car's striking it in the rear did not cause it to hit the one ahead of it. She further testified that after the collision occurred defendant asked her if she was hurt, and that she told both him and the police officer, who was called to investigate the accident, that she was not hurt. She further testified that she then did not think she was hurt, and that she did not 'start hurting bad until three or four days later.' Plaintiff further testified that her three children and her mother were passengers in her car when the collision occurred, but that neither had any medical examination of treatment as a result thereof. Plaintiff further testified, in substance, that she did her housework after the collision, with the help of her daughters. She also testified to having painted two bedrooms, a bathroom, and one ceiling in her home between the time of the collision and the trial, but added: 'I wound up in bed after I did it.' She further revealed that she had been treated for bursitis in her left shoulder at some unspecified time before the collision. On cross-examination, plaintiff was asked the following questions and gave the following answers, without objection:

'Q I'll ask you if you had occasion to state to any person of your acquaintance to the effect that you were not hurt in this accident; but that you were going to claim that you were hurt because everybody else did when they had had an accident?

'A No, sir.

'Q Nothing to that effect?

'A Nothing to that effect.

'Q I will ask you if you ever made any statement to any acquaintance to the effect that Dr. S_ _ charged you $150.00 for a medical report that would say you were injured?

'A No, sir.'

Testifying as a witness in his own behalf, defendant stated that he was a retired automobile mechanic and still worked on his own car and those of friends, occasionally. He further testified that on the day of the collision he had been on a trip to western Texas, which started at his home in Tahlequah about two weeks previously. Defendant further testified that, before starting this trip, he had had his car inspected, greased, and serviced; that on the day of the collision he had driven the car between three and four hundred miles and had had 'no trouble' in stopping the car with its brakes; that he had driven onto May Avenue off of the Expressway coming from Chickasha; that immediately previous to the collision, when he had stopped his car for a stop light at Southwest 44th and May Avenue, its brakes had performed excellently, and that, after he had driven five or six blocks further north on May Avenue, in a line of traffic he thought was traveling 'somewhere between 20 and 30 miles an hour', plaintiff's car stopped in front of his, because a car in line ahead of hers was making a left hand turn; and that was when his car struck hers. Defendant further testified that he attempted to stop his car by putting his foot on the brake pedal, but that the 'car just kept agoing.' Defendant was allowed to further testify that, if his car's brakes had functioned as they should, it would not have hit P car. Defendant further testified that, after the police officer arrived to investigate the accident, the officer discovered a hole in the flexible line carrying the hydraulic brake fluid to his car's right front wheel. He further testified that when this line broke open, brake fluid ran out of it, and, in substance, that this was the reason his application of the brakes would not stop the car.

Defendant also called as...