Cosar v. Bemo

1955 OK 90, 282 P.2d 222, 1955 Okla. LEXIS 436

• Court: Supreme Court of Oklahoma
• Decided: March 29, 1955
• Docket: 36187
• Status: Published

Opinions

BLACKBIRD, Justice.

Dickie Johnson, who owns a farm in Seminole County, Oklahoma, does not have a driver’s license, but owns a Dodge Sedan automobile and also a truck which is used in connection with his limited farming and cattle raising operations. The present action arose out of an automobile accident in which the Dodge Sedan was involved. John Bemo, plaintiff herein, had been employed by Johnson as a farm hand approximately two years when the accident occurred, and, Roy Cosar, driver of the Dodge, had been employed by Johnson as-his chauffeur approximately three weeks. The other automobile involved in the accident, which occurred less than a mile and a half from the Johnson farm, was. owned by the Emsco Company (referred torn the record as a “Drilling” Company,, an “Equipment” Company, and a “Manufacturing” Company) and was driven by one of its employees, Charles Elbert Bush, who lost his life as a result thereof.

When the accident occurred in November,. 1951, Bemo and Johnson’s chauffeur, Cosar,, riding alone in Johnson’s Dodge Sedan, were returning from a country store and filling station, where they had gone to cash a check for Johnson and procure gasoline-for the car. Bemo’s subsequent commencement of the present action was to recover damages against both Cosar and Johnson, as defendants, for personal injuries he-suffered therefrom. All three parties will hereinafter be referred to as they appeared; in the trial court.

Defendants pleaded that both plaintiff and Cosar were agents and employees of Johnson, acting within the scope of their employment at the time of the accident, and,, at the close of plaintiff’s evidence separately demurred to it. In support of the defendant Johnson’s demurrer, it was urged that said evidence showed Cosar and plaintiff were fellow servants. At the close of all of the evidence defendants renewed their abjections by separate motions for a directed verdict.

Subsequently defendants moved the court to declare a mistrial after one of plaintiff’s attorneys had told the jury, during his final argument, that the widow of the deceased Emsco Company’s employee, Bush, had, in a previous death action in another court, obtained a verdict and judgment of $48,800 against the same defendants. Defendants’ motion was overruled, and the jury returned a verdict against defendants in this action for $38,500. At the hearing of defendants’ separate motions for a new trial, they were overruled upon condition of a remittitur suggested by the court and consented to by plaintiff’s attorneys, reducing the amount of plaintiff’s recovery by $15,000, and judgment was thereafter entered accordingly. From said judgment, defendants have lodged the present appeal.

The first proposition urged by defendants’ counsel concerns the trial court’s alleged errors in overruling the defendant Johnson’s demurrer to the evidence and motion for directed verdict. The argument is the same as it was in the trial court, to-wit: That the fellow servant rule is applicable to exonerate Johnson, the employer, from all liability in the present case in the absence of a showing of any negligence on his part. It is plaintiff’s position that the fellow servant rule does not apply here because of the difference between the duties of his employment and that of Cosan His counsel argues Cosar was employed exclusively as a chauffeur, while plaintiff was just a farm hand. Most of the cases counsel cite are early ones from other jurisdictions, which are either distinguishable on the basis of their facts or apply a theory of the fellow servant doctrine not now adhered to in this jurisdiction. The trend of modern authority is away from making the application of the rule solely dependent upon differences in the duties of the injured employee and the one whose negligence caused his injuries. See Burroughs v. Michel, 142 Kan. 814, 52 P.2d 633; Atchison & Eastern Bridge Co., 71 Kan. 13, 80 P. 18, 1 L.R.A.,N.S., 682; 35 Am.Jur., “Master and Servant”, sec. 331 et seq.; Restatement Of The Law, Agency, secs. 475, 480, 486 (Comments, p. 1139). We find it difficult, if not impossible however, to reconcile and harmonize the recent cases on the subject in the various jurisdictions. Carter v. Uhrich, 125 Kan. 192, 264 P. 31; Zarski v. Creamer, 317 Mass. 744, 59 N.E.2d 704; Sandefur v. Sandefur, Tex.Civ.App., 232 S.W.2d 111, and Blanchard v. Gallahar, 72 Ga.App. 132, 33 S.E.2d 379, all cited by defense counsel are readily distinguishable on the basis of their facts from the case at bar (without regard to any inconsistencies in the application of their statements of the fellow servant rule) but Charles Weaver & Co. v. Harding, 182 Miss. 345, 180 So. 825 (also cited) is not so readily distinguishable, if at all, from cases like Haraway v. Manee, 186 Ark. 971, 56 S. W.2d 1023, and French v. Cherry, 186 Ark. 991, 57 S.W.2d 404 which reached opposite results. No Oklahoma case is cited, and we have found none directly in point. Stout v. Schell, 206 Okl. 153, 241 P.2d 1109, strongly relied upon by defendant, was an action brought by a truck driver’s helper for injuries he suffered on account of his employer’s alleged negligence. This court’s af-firmance of the trial court’s judgment sustaining defendant’s demurrer to the evidence upon application of the fellow servant rule to the facts of that case is in harmony with the opinions of other courts in similar cases. See, for instance, Boston v. Kroger Grocery & Baking Co., 320 Mo. 408, 7 S.W.2d 1006, and Black Diamond Lbr. Co. v. Smith, 190 Ark. 91, 76 S.W.2d 975. In all of the “driver’s helper” or “companion driver” cases, as well as Carter v. Uhrich, supra, plaintiffs were truly fellow servants of the drivers and, at the time of the accidents involved, were actually engaged in duties in the course, and within the scope, of their employments in such a way that they could correctly be regarded as having assumed the particular risks involved, while here the situation is different. When the accident in the present case occurred, plaintiff was doing nothing shown to have been within the sphere of his regular duties as a farm hand; and we think it is of no controlling importance that he was shown to have, on previous occasions, accompanied Cosar and Johnson, in' the latter’s truck driven .by Cosar, to haul hay and corn for Johnson’s livestock, and that Johnson had told plaintiff and Cosar they were to make another such trip after their return in the sedan from the country store and filling station on the day of the accident.

Apparently all three of the parties here involved were Seminole Indians. Plaintiff’s limited knowledge of the English language is obvious, from his testimony and he testified that he could neither read, write, sign his name, nor count to a hundred. He was an unskilled laborer. From the evidence it is reasonable to assume that he was not licensed for, nor capable of, operating a motor vehicle. He definitely was not employed to discharge the duties of a driver’s or chauffeur’s helper as distinguished from a farm hand or doer of chores on a farm. On the trip, during which the acc^ent occurred, Cosar had complete control of the automobile in that he alone, as between the two alleged fellow servants, knew how to operate it and had the full power and authority to say how it should be operated. But notice the statement in Putnam v. Pacific Monthly Co., 68 Or. 36, 130 P. 986, 991, 136 P. 835, 45 L.R.A.,N.S., 338 L.R.A. 1915F, 782. Not only that but it was never shown that plaintiff had any duty whatsoever to perform in connection with that particular trip or that he had ever before been on that kind of a trip, during the period he had been employed by Johnson. While there was testimony, from which it could be inferred, that the employer, Johnson, intended and perhaps even instructed, plaintiff to accompany Cosar on the trip to the store and filling station, no reason for this ever appears. The only objects of the trip, i. e., to get Johnson’s check cashed and obtain gasoline, were tasks that more properly came within the sphere of Cosar’s regular employment. In some of these aspects of the case it is similar to Johnson v. Ladd, 138 Or. 371, 5 P.2d 1062, in which it was held that a gardener authorizedly driving his employer’s automobile, and a nursemaid employee of the same employer were not fellow servants. Though we realize that some might regard the cited case as within the same class as the so-called “domestic servant” cases; whose decisions lack harmony see Lamar v. Collins, 252 Ill.App. 238, and compare with Erjauschek v. Kramer, 141 App.Div. 545, 126 N.Y.S. 289, and other cases cited in the Annotations beginning at 48 A.-LiR. 1295, and, in view óf the difficulty in consistently applying some of the rules that have been announced regarding the fellow servant doctrine we hesitate to announce one here, but we think each case must be determined on-the basis of its 'own individual facts. To the situation 'here presented, 'the fellow servant doctrine was not properly applicable and it presents no valid basis for the defendant Johnson’s charge of error in the trial court’s ruling on his demurrer to the evidence and motion for directed verdict.

This leaves for decision the question of the trial court’s alleged error in refusing the motion of the defendant, Cosar (as well as Johnson)' for the court to declare a mistrial. Said motion, as hereinbefore indicated, waS based upon information conveyed to the jury by one of plaintiff’s attorneys to the effect that Emsco Company’s employee’s widow, Mrs. Bush, had, in another case, recovered a verdict and judgment of $48,800 against Johnson and Cosar on account of Bush’s death in the same accident. Plaintiff’s counsel does not dispute the authorities cited by defense counsel, to the effect that such conduct is ordinarily reversible error, but their argument is to the effect that in this case, it was not, because such error was invited. The record does not disclose the exact way in which defendants’ attorney is said to have asked plaintiff’s counsel the question referred to. Neither of the closing arguments of the respective counsel is incorporated in the case made. There is merely a court reporter’s note or memorandum showing that plaintiff’s attorney’s statement was in answer to a portion of defense counsel’s closing argument wherein “he asked, in substance, why the plaintiff didn’t sue the Emsco Manufacturing Company, the company for whom Mr. Bush worked, * * ”. The record discloses the objection made by plaintiff’s counsel to such reference to an ' “incompetent, irrelevant and immaterial” matter; that thereupon the court admonished the jury that it was “bound by the evidence you have heard from this stand * * * ”; that then defense counsel was allowed to complete his argument, after which plaintiff’s counsel made his closing argument and told the jury of the $48,800 verdict in the other case; that defense counsel then immediately moved the court to declare a mistrial on account of plaintiff’s counsel’s having conveyed this information to the jury; and that, .before overruling this motion and allowing defendants an exception, the court gave the jury a second admonition telling them, in substance, that they were to disregard any statements made by counsel about the other “law suit.”

It is a well recognized principle of appellate review that a party should not be allowed to take advantage, on appeal, of an error he has invited at the trial; and the “fact that the * * * statement of facts not in evidence was provoked or invited by the adverse counsel has often been held to excuse the error.” 3 Am.Jur., “Appeal and Error”, sec. 1074. See also Taliaferro v. Reirdon, 186 Okl. 607, 99 P.2d 500; 5 C.J.S., Appeal and Error, §§ 1501, 1508, 'Note 71; 88 C.J.S., Trial § 194; 53 Am.Jur., Trial, sec. 468. Especially is this true where the error may be regarded as harmless or to have been cured by instructions or admonitions of the court. 3 Am. Jur., “Appeal and Error”, sec. 1076, 14 Okl.Dig., Trial, From the record and the briefs it is clear that the information plaintiff’s counsel gave the jury about the other law suit was in answer to, and invited by, the question defense counsel asked during his closing argument. The latter cites no authority showing that his own conduct in asking the question was proper but argues that his remarks “are really not in issue” since there was no proper record made of them, and claims that since the evidence showed the accident occurred when defendant’s car collided with the Emsco Company’s car there was “nothing wrong” with his suggesting that its driver “was to blame for the accident.” We do not agree. Defense counsel knew that the driver of the Emsco car was killed in the collision (the record indicates he defended these same defendants in the other action brought by said driver’s widow) and he is presumed to know that, notwithstanding any negligence on the part of that driver, plaintiff could sue defendants herein, that whoever he named as a defendant in this action was initially a matter of his and his attorneys’ choice, and that whatever considerations figured into their making of this choice had no proper bearing or relevancy upon these defendants’ liability and was not a proper subject of the jury’s consideration in this case. Defense counsel’s further argument is to the effect that the information plaintiff’s counsel gave the jury in answer to his question was so prejudicial in its nature as to require reversal, even though the trial court admonished the jury not to consider it, Shaff v. Baldwin, 107 Cal.App.2d 81, 236 P.2d 634, 637, and this court might be in doubt as to whether the verdict was affected thereby — an argument that seems to find support in this court’s opinion in Berry v. Park, 185 Okl. 118, 90 P.2d 425, and what was said concerning it, in Magnolia Pet. Co. v. Sutton, 208 Okl. 488, 257 P.2d 307. The Berry case, however, did not involve an “invited error”, but involved the interrogation of jurors on voir dire examination with questions suggesting that the defendant had liability insurance, where there were no circumstances to provoke or reasonably justify such interrogation. We do not think that case is applicable here. Where misconduct of counsel occurs as retaliation, or by way of accepting the invitation of opposing counsel, there is an element of estoppel not present in cases like the cited one. See McKinney v. Red Top Cab Co., 113 Cal.App. 637, 299 P. 113, 116, where the court said:

“The rule is firmly established by numerous decisions that parties must abide by the consequences of their own acts and cannot seek a reversal of a case for error which they invited. In other words, one who by his own conduct invites error is estopped after-wards from complaining of the prejudicial effect flowing therefrom. (Citing authorities.)”

This court has held that in cases of the latter class, it must appear “quite plainly” that the verdict was influenced by the retaliatory remarks before it will be set aside on account thereof. Helmerich & Payne v. Nunley, 176 Okl. 246, 54 P.2d 1088. See also 88 C.J.S., Trial, § 194, and authorities cited under Notes 8, 9 and 12. If this were not the rule, one party’s counsel would have unlimited license to prejudice the jury against his opponent’s side of the case, and, if retaliatory measures were taken, keep obtaining additional trials until the verdict was satisfactory to him. In this connection, see Northern Arizona Supply Co. v. Stinson, 73 Ariz. 109, 238 P.2d 937, 939. Here, as hereinbefore noted, the trial court, by its instructions and/or admonitions took measures contemplated to appropriately guard against the jury’s being biased or prejudiced for, or against, either of the parties by the objectionable portions of their attorneys’ arguments. What should be done in such situations must of necessity be dictated in the first instance by the sound discretion and judgment of the trial judge. Hazelrigg Trucking Co. v. Duvall, Okl., 261 P.2d 204, 210; Walker v. Penner, 190 Or. 542, 227 P.2d 316; 3 Am.Jur., “Appeal and Error”, sec. 973. To disturb the verdict thereafter rendered in a case like this, it should appear that such discretion has been abused or that the measures taken were inadequate. The instructions this trial judge gave the jury appear quite adequate to accomplish their contemplated purpose. To say it appears “quite clearly” that the jury did not follow them, we must so conclude without any concrete showing to the contrary. In this connection, see Hazelrigg Trucking Co. v. Duvall, supra.; 5 C.J.S., Appeal and Error, § 1562, at Note 25. We cannot do that, especially, where as here, our thorough examination of the record discloses sufficient evidence to support a verdict in plaintiff’s favor and the judgment sought to be reversed, but does not purport to depict verbatim the attorney’s argument, or even the portions thereof in controversy. The trial judge, however, heard them and was in a position to observe the cirum-stances surrounding the particular utterances in controversy. Then too, the alleged “misconduct of plaintiff’s attorney in' his closing argument to the jury” was one of the asserted grounds for a new trial in defendants’ separate motions therefor. In this situation we are impelled to the view expressed by the Court in McKinney v. Red Top Cab Co., supra:

“ * * ⅝ the trjaj court jn pres_ ent action was alert to prevent any transgression of the rules of legitimate argument, and, having personally witnessed all of the circumstances attending the incident, was in a position to say, at the time this point was stressed by defendants on motion for a new trial, whether the deliberations of the jury were unduly influenced by the remark complained of, and, having decided that they were not, there is nothing in the record to justify this court in holding to the contrary.”

While this Court has never, and does not now, condone improper statements like those of counsel here that ordinarily would constitute ample justification for a trial court’s declaration of a mistrial, 53 Am.Jur., “Trial”, sec. 489, under the circumstances indicated by this record, we do not feel warranted in disturbing the judgment.

As we have found'none of the alleged errors urged by defendants, sufficient justification for setting said judgment aside, it is hereby affirmed.

CORN, DAVISON, HALLEY and JACKSON, JJ., concur. JOHNSON, C. J., WILLIAMS, V. C. J., and WELCH, J., dissent.