Nash v. Hiller
| Decision Date | 19 March 1963 |
| Docket Number | No. 39518,39518 |
| Citation | 1963 OK 63,380 P.2d 77 |
| Parties | A. J. NASH, Plaintiff in Error, v. William H. HILLER and Earl Butler, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. The posing of questions that contemplate answers that are neither competent, relevant nor material do not ordinarily constitute reversible error. However, where such questions relate to a material issue in the case and are prejudicial, reversible error may result.
2. A trial court is vested with broad discretion in granting or denying a new trial, but where it clearly appears that the trial court erred in some pure, simple question of law or acted arbitrarily or capriciously, this Court will reverse the judgment and/or order granting or denying a new trial.
Appeal from District Court of Tulsa County; Raymond W. Graham, Judge.
Plaintiff in error brought an action for damages allegedly sustained in an automobile accident. Plaintiff in error appeals from an order overruling his motion for a new trial. Reversed and remanded with directions.
Jack B. Sellers, Sapulpa, for plaintiff in error.
Rucker, Tabor, Best, Sharp & Shepherd, Tulsa, for defendants in error.
A. J. Nash, plaintiff in error, brought an action against the defendants in error for damages resulting from an automobile accident. The jury returned a verdict in favor of defendants and judgment was rendered accordingly. A. J. Nash, hereinafter referred to as plaintiff, perfected an appeal from the order overruling his motion for a new trial. Defendants in error will be referred to as defendants or by name.
The material factual allegations contained in plaintiff's petition are; that he was driving his automobile in a southerly direction on a certain highway when he observed defendant Hiller standing on the highway by his automobile; that he decreased his speed and honked his horn but Hiller failed and neglected to remove himself from the highway; that part of Hiller's car was parked on and partially blocked the highway; that at the same time and place traffic was coming from the opposite direction; that when he had decreased his speed to approximately 20 miles per hour to let the oncoming traffic pass, defendant Butler, who was traveling in the same direction as plaintiff, crashed into his car from the rear.
The evidence discloses that part of the Hiller car was on the highway and parked about 1300 feet south of the crest of a hill and that plaintiff had passed the pick-up truck being operated by defendant Butler prior to the accident. However, a material fact in dispute was whether plaintiff passed defendant Butler some distance before he had reached the crest of the hill or after the crest of the hill had been passed by both plaintiff and defendant Butler. The evidence favorable to plaintiff tended to show that neither car had reached the crest of the hill when plaintiff passed Butler and the evidence favorable to defendants tended to show that plaintiff passed Butler between the crest of the hill and defendant Hiller's parked car. In this connection, Butler testified that plaintiff passed him about 300 feet before reaching the Hiller car and plaintiff testified he passed Butler before either car had reached the crest of the hill.
A highway patrolman who investigated the accident, was permitted to testify over the objection of plaintiff, that plaintiff passed Butler between the crest of the hill and Hiller's parked car. This testimony substantiated Butler's testimony as to the place where plaintiff passed Butler but such information of the highway patrolman was based upon hearsay evidence.
Plaintiff contends that defendants asked questions which contemplated answers which were neither competent, relevant nor material and were posed for the purpose of arousing the sympathy or passion of the jury or planting prejudice in their minds and such questions constitute reversible error.
The complained of proceedings were as follows: During the cross examination of the highway patrol trooper who investigated the accident, the following question was asked by one of defendants' attorneys.
'Q. Mr. Trooper, I'd like to ask you, sir, if from all of your investigation, from the facts that you found and from what you found out from talking with the folks, if you found where Earl Butler did anything wrong out there that day?
'Mr. Sellers: Now, just a minute, I'll object to this.
'The Court: The objection is sustained.
'Mr. Sellers: And I'd ask the court to admonish counsel against continuing such tactics, Mr. Best knowing how to properly examine the witness.
'Mr. Best: The witness is impartial, as I understand it, and I think the jury is entitled to the benefits of his fairness. 'The Court: The objection is sustained.'
A similar question, almost verbatim, was asked during the trial of the case of Houston v. Pettigrew, Okl., 353 P.2d 489, wherein the trial court granted a new trial. In that case the trial court stated that one of the reasons for granting the new trial was 'because of error resulting from counsel for defendant improperly examining the patrolman.' In the Houston v. Pettigrew case we said:
* * *'
However, in affirming the trial court's order granting a new trial, we said:
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...Bogan, P.C. v. Berger, 2002 OK 31, ¶ 5, 46 P.3d 698; Bishop's Restaurants, Inc. of Tulsa v. Whomble, 1960 OK 44, ¶ 0, 355 P.2d 560; Nash v. Hiller, 1963 OK 63, ¶ 0, 380 P.2d 25. The facts here differ significantly from those presented to the Court in our recent decision involving redistrict......
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Middlebrook v. Imler, Tenny & Kugler M.D.'s, Inc.
...reversible error, but when such questions relate to a material issue and are prejudicial, reversible error may result. Nash v. Hiller, 380 P.2d 77 (Okl.1963). It is important to note the improper question was not answered, and the trial court immediately admonished the jury to disregard the......
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Montgomery v. Murray
...matter irrelevant to the issue of the defendant's liability (see Layton v. Purcell, Okl., 267 P.2d 547, 533, and compare with Nash v. Hiller, Okl., 380 P.2d 77, 79), injected into the case 'beneficial prejudice' that experience has demonstrated will usually affect verdicts. In this connecti......
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McKee v. Neilson
...appears that the trial court erred in some pure, simple question of law, or that it acted arbitrarily or capriciously. Nash v. Hiller, Okl., 380 P.2d 77, 80. The trial court did not err in granting a new trial to defendant on plaintiff's first cause of Affirmed. JACKSON, C.J., IRWIN, V.C.J.......