Walker v. International Harvester Company, Civ. No. 67-165.
| Decision Date | 09 January 1969 |
| Docket Number | Civ. No. 67-165. |
| Parties | Mary WALKER and Norman King, as Guardians of the Person and Estate of Leola Pauline Courtney, an Incompetent Person, Plaintiffs, v. INTERNATIONAL HARVESTER COMPANY, a corporation, Defendant. |
| Court | U.S. District Court — Western District of Oklahoma |
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Robert S. Baker, Melvin Pierce, of Pierce, Duncan, Couch & Hendrickson, Oklahoma City, Okl., S. Paul Hazen, Tulsa, Okl., for plaintiffs.
Joseph M. Best, Joseph A. Sharp, of Best, Sharp, Thomas & Glass, Tulsa, Okl., for defendant.
Upon consideration of the Motion of Plaintiff for Judgment Non Obstante Veredicto and Motion for New Trial, the Court finds that both Motions should be denied.
As to the claim that the verdict of the jury in favor of the Defendant is not supported by legal evidence, the Court finds this claim to be without merit. The theory and evidence of the Plaintiffs was that the Defendant in the manufacture of its truck involved herein failed and neglected to use a safety door latch then in use in the industry; that the impact from the accident involved was light but sufficient to cause the door to open with the type door latch installed; that had the safety door latch been installed, the impact would not have caused the door to open. It was the contention and evidence of the Defendant that the door latch used was proper and conformed with industry practice at that time; that other manufacturers of heavy trucks like the one involved herein used the same door latch at the time; that the impact in the collision was violent in that the truck was struck near the right front door by a car going approximately 40 miles per hour; that the impact was of such force and location that it caused the door to open and that the door would have been forced open had a safety door latch been installed; that the type of door latch on the truck was not the proximate cause of Plaintiff's injuries.
The evidence was conflicting as to industry use of the safety door latch at the time of manufacture involved herein on the type of truck involved herein and as to the proximate cause of the opening of the door which resulted in Plaintiff's injuries. The Court was required under the conflicting evidence to submit the case to the jury. It would have been improper and error for the Court to have directed a verdict in the case for either party. Lively v. Davis, 410 P.2d 851 (Okl.1966) at p. 857.
As to the Plaintiff's complaint about the impeachment of their witness, the driver of the truck, the Court finds this complaint to be without merit. This witness on direct examination in giving his version regarding Plaintiff's injury testified that at the time of the accident his wife, the Plaintiff's Ward Leola Pauline Courtney, was holding onto the seat and she did not hit any part of the truck. On the day following the accident this witness answered an investigator's questions before a court reporter to the effect that his wife, the Plaintiff's Ward, had been riding along with her hand on the door handle, that it was very possible that this was probably how the door happened to come open and that at the time of the accident she (the Plaintiff's Ward) jerked the door handle and the impact flipped the door open and out she went. On cross examination this witness was asked if his wife had pulled the door handle open. He denied this. He was then asked if he had made the above statements on March 18, 1962, the day following the accident, in answering the investigator's questions. He denied making the statements. Inasmuch as the witness denied making the statements the day following the accident which were clearly contrary to his explanation and version testified to on direct examination as to how Plaintiff's Ward sustained her injuries, it was necessary and proper for the Defendant to produce the court reporter who heard the prior contrary statements made by the witness and who preserved the same. The proper predicate was laid. Kerley Chemical Corp. etc. v. Producers Cotton Oil Co., 2 Ariz.App. 56, 406 P.2d 258 (1965). The court reporter testified from memory to the questions propounded and the answers made by the witness the day following the accident, precisely the same questions and answers that the witness previously denied. This was relevant impeachment. It was not collateral. It challenged directly the truth of what the witness had testified. Atkinson v. Atchison, Topeka & Santa Fe Ry. Co., 197 F.2d 244 (Tenth Cir.1952). Whereupon, Plaintiff's counsel in the presence of the jury asked to see the transcription of the questions and answers (which he had seen the evening before, and which apparently had been used in the same manner in a prior state court proceeding between the same parties for the same accident which was dismissed by the Plaintiff during the trial) and then requested that the entire transcript be placed in evidence.
The request of Plaintiff's counsel made in the presence of the jury to see the transcript was not proper since he had seen and read the entire transcript only the evening before and, in addition, knew or should have known of its previous use in court in an identical manner even though he was not then the attorney for the Plaintiff. This request improperly conveyed to the jury the impression that he had never before seen the transcript which was incorrect. The Plaintiffs cannot complain in this regard since their counsel's request to see the transcript had been previously fulfilled when he was afforded an opportunity to see the transcript and did examine and read the same.
Next, Plaintiff's request that the entire transcript be placed in evidence was properly denied. The author of the answers in the transcript had appeared and testified in person at the trial as a witness for the Plaintiffs. He was examined and cross examined...
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