Westgate Oil Co. v. McAbee
| Decision Date | 30 November 1937 |
| Docket Number | 27468. |
| Citation | 74 P.2d 1150,181 Okla. 487,1937 OK 694 |
| Parties | WESTGATE OIL CO. et al. v. McABEE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 18, 1938.
Syllabus by the Court.
1. Ordinarily, reference to defendant's liability insurance by plaintiff's counsel in his opening statement to the jury, or plaintiff's reference thereto from the witness stand, is improper, and is prejudicial to the rights of defendant, and the overruling of defendant's motion for a mistrial on that ground constitutes reversible error.
As affecting credibility of a witness introduced by defendant in a personal injury suit, it may be shown on his cross-examination, that he is an agent of a company with which defendant carried liability insurance.
2. It is the duty of the trial court to clearly submit by appropriate instructions the theory of the defense in accordance with the evidence where the evidence tends to support the same, and failure to do so at the request of defendant constitutes prejudicial error.
3. Prejudicial remarks of counsel in his argument to the jury are not available as a ground for reversal unless objected to and exception taken at the time such remarks were made, and the remarks, as well as the objection and exception thereto must be shown in the record of the proceedings of the trial. The objection is too late if made for the first time in the motion for new trial and by affidavit of opposing counsel.
4. Where there is sufficient evidence to sustain the verdict, as to the amount, and nothing appears in the record tending to show that the minds of the jury were inflamed so as to induce the belief that the jury was actuated by passion, prejudice or partiality, the verdict will not be set aside upon appeal as excessive.
5. A case should be withdrawn from a jury where plaintiff offers in evidence two different sets of circumstances, each of which supports only one logical inference, and such inferences are wholly inconsistent. But a party is not concluded by the statement of any witness, and has a right to introduce other competent evidence to show the real facts although such testimony may incidentally contradict or tend to impeach the testimony of a previous witness. And such latter testimony will create an issue of fact upon which a court or jury trying the case is authorized to hold adversely to the former testimony. This is a rule without reference to whether the party calling the former witness is taken by surprise or not by his testimony.
Appeal from District Court, Oklahoma County; Ben Arnold, Judge.
Action for damages for personal injury resulting in death by Lenora McAbee, administratrix of the estate of Leola McCord, deceased, against the Westgate Oil Company and others. Verdict and judgment for plaintiff, and defendants appeal.
Affirmed.
Thomas H. Owen and Lynn J. Bullis, Jr., both of Oklahoma City, for plaintiffs in error.
Suits & Jeffery, of Oklahoma City, for defendant in error.
This is an appeal from a judgment of the district court of Oklahoma county upon a verdict of a jury in favor of the plaintiff, Lenora McAbee, administratrix of the estate of Leola McCord, deceased, and against the defendants, Westgate Oil Company, a corporation, Natural Gas Development Corporation, a corporation, and G. L. Gallaspy. The defendants have appealed to this court.
The parties herein will be referred to as they appeared in the trial court.
The plaintiff alleged in his petition that the high-pressure gas line of the defendant, under the alley that ran in the rear of the house in which deceased was living and running in close proximity to the sewer line, broke and the gas escaping therefrom filled the house occupied by the deceased; that deceased arose about 5:30 o'clock in the morning and struck a match and that instantly an explosion took place, wrecking said house and causing deceased to be severely burned, from the effect of which she died in about three days thereafter. The plaintiff's theory is that the escaping gas either followed the crevice in the ground along the sewer line or entered the sewer lines and entered the bathroom through or along the sewer pipes.
The defendants answered by general denial. They here contend that the gas escaping from their line could not have gathered in the house of the deceased in such a manner and quantity as to cause the explosion. This contention seems to be based on the condition of the rooms of the house after the explosion and, also, the construction of the foundation of the building. They contend that the gas causing the explosion must have come from some source other than from defendant's gas line.
The defendants have presented their assignments of error under six separate propositions.
It is first contended that the trial court erred in refusing to declare a mistrial on the motion of the defendants during the progress of the trial. This contention is based upon the manner in which the plaintiff examined the defendants' witness Earl Fox. The counsel for defendants introduced witness Earl Fox, an engineer, for the purpose of proving, among other things, that the escaping gas from the high-pressure line of defendants had not accumulated in the house where the explosion occurred. The examination of the witness by defendants began by attempting to show that witness was employed by the State Fuel Supply Company and that his company had no interest in the case nor the outcome of the litigation; that witness had no connection whatever with either the Westgate Oil Company or the Natural Gas Development Corporation and that his company had no gas lines in the vicinity where the explosion took place. The witness then testified relative to his going upon the premises after the explosion and making careful investigation of the cause and result of the explosion. Witness then gave his opinion that there was no connection between the escaping gas from defendants' line and the explosion. Witness was again asked if he had any interest in the lawsuit and whether it affected his job or his company in any way.
On cross-examination, plaintiff's counsel, over the objection of defendants, was allowed to ask the witness Fox who engaged him to make an examination and inspection of the house for the purpose of testifying. The answer of the witness was that he had been engaged by the engineer of the insurance company. The counsel for defendants then moved for a mistrial which was denied.
Counsel for defendants have presented in their brief an extended argument and line of authorities showing the immateriality and prejudicial effect of injecting into evidence the fact that a defendant carries insurance. We fully agree with the general rule as announced by the counsel, relative to testimony pertaining to insurance carried by a defendant and such constituting misconduct sufficient to require the declaring of a mistrial, but we do not think defendants' authorities are controlling in the instant case. When counsel for the defendant repeatedly emphasize the fact that witness Fox was in the employment of an entirely different company than the defendants and had no interest whatever in the outcome of the lawsuit, the jury certainly had a right to know under what authority the witness made the investigation about which he had so fully expressed his opinion and what interest or want of interest this witness had. We do not think that the question asked witness Fox and the answer thereto was sufficient to inform the jury that the defendants were carrying insurance for accidental protection and come within the rule announced by this court. The question and answer was as follows (c. m. 208):
What insurance company? Was it the company who had insured the house only or the one that had insured the drilling company against injuries to property and bodily injury including death resulting from drilling, operating, or maintenance of an oil well as required by the ordinance of Oklahoma City? We cannot assume that the question and answer would impart to the jury information beyond that contained in the question and answer thereto.
In Beatrice Creamery Company v. Goldman, 175 Okl. 300, 52 P.2d 1033, this court held:
In Moy Quon v. M. Furuya Company, 81 Wash. 526, 143 P 99 that court held: "As affecting credibility of a witness introduced by defendant in a personal injury suit, it may be shown on his cross-examination that he is an agent of a company with which defendant carried liability insurance," and said: ...
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