Overstreet v. Bush
| Decision Date | 21 April 1953 |
| Docket Number | No. 35250,35250 |
| Citation | 256 P.2d 416,208 Okla. 365 |
| Parties | OVERSTREET v. BUSH. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. It is elementary that instructions must be confined to the issues raised in the pleadings and supported by evidence; if otherwise, any instruction so given is erroneous, and constitutes error, and granting a new trial by the trial court under such circumstances is not error.
2. It is error to give an instruction embracing the defense of sudden emergency unless such defense has been pleaded and proven, and where defendant has failed to plead and prove such defense, but, notwithstanding that fact, the trial court, over the objection of plaintiff, instructs the jury on the issue of sudden emergency and the jury rendered a verdict for defendant, it was not error for trial court to grant plaintiff a new trial.
Dudley, Duvall & Dudley, Oklahoma City, Carder & Carder, Hobart, for plaintiff in error.
R. Place Montgomery, Hobart, John Allen Phillips, II, Durant, for defendant in error.
This cause stems from an action for damages for wrongful death in which the jury rendered a verdict in favor of the defendant. The court sustained plaintiff's motion for a new trial upon the ground that certain instructions to the jury were erroneous resulting in this appeal. The pertinent part of the three assignments of error interposed by defendant are as follows:
'(1) The court erred in failing, neglecting and refusing to render judgment upon and in accordance with the verdict of the jury, to which exceptions were duly preserved.
'(2) The court erred in sustaining the motion for a new trial, to which defendant duly preserved exceptions.
'(3) The court erred in granting to plaintiff a new trial, to which defendant duly preserved exceptions.'
It is conceded by defendant that generally the trial judge has power and authority to grant a new trial if he is not satisfied with the judgment as rendered, but it is urged that the court expressed no dissatisfaction or disapproval of the action of the jury. That upon timely request by defendant and after argument of counsel, stated that he would sustain the second objection in the motion for new trial, and so ordered. The second objection in the motion for a new trial provided:
'Second: Error of the court in having given instructions Nos. 5, 10, 11 and 12 to the jury, to which exceptions were taken by the plaintiff and allowed by the court at the time of the trial.'
We will confine our review to the reason assigned by the trial court for granting plaintiff a new trial. McGlone v. Landreth, 200 Okl. 425, 195 P.2d 268.
Defendant argues that the instructions as given by the court were correct, citing Browne v. Bassett, 191 Okl. 22, 126 P.2d 705, wherein the court gave an instruction on unavoidable accident and thereafter granted a new trial to plaintiff on the stated theory that the instruction was erroneous, and we reversed the order granting a new trial and remanded the case with instructions to enter judgment in favor of the defendant, holding that where it appears that an instruction is correct and properly given, the action of the court in granting a new trial presents error as a pure and unmixed question of law.
It is elementary that instructions must be confined to the issues...
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Baker v. Mason
...20 Ill.App.2d 144, 155 N.E.2d 329. Layne v. Portland Traction Co. (1957), 212 Or. 658, 319 P.2d 884, 321 P.2d 312. Overstreet v. Bush (1953), 208 Okl. 365, 256 P.2d 416. The Appellate Court held that there was sufficient evidence to support the instruction; with this conclusion we cannot ag......
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Shuck v. Cook
...The question we must answer here is: Was this instruction confined to the issues and supported by the evidence? Overstreet v. Bush, 208 Okl. 365, 256 P.2d 416. The issues tendered by the pleadings were (1) the charge against the defendants that they were guilty of common law negligence, as ......
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Woolfolk v. Semrod, 38628
...were thereby prejudiced.' To the same effect, Tyree v. Dunn, Okl., 315 P.2d 782; Huey v. Stephens, Okl., 275 P.2d 254; Overstreet v. Bush, 208 Okl. 365, 256 P.2d 416. Defendant points out, and correctly so, that prior to the filing of a verified reply by plaintiff, it was unnecessary for de......
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