Hodo v. Cox

1967 OK 205, 437 P.2d 249
CourtSupreme Court of Oklahoma
DecidedOctober 3, 1967
DocketNo. 41635
StatusPublished
Cited by2 cases

This text of 1967 OK 205 (Hodo v. Cox) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hodo v. Cox, 1967 OK 205, 437 P.2d 249 (Okla. 1967).

Opinion

PIODGES, Judge.

This is an appeal by defendant Homer S. Hodo from a judgment upon a jury verdict in favor of plaintiff Dan Cox for damages for personal injuries suffered while operating a pickup truck which was struck by a truck driven by defendant.

Defendant assigns three alleged errors of the trial court upon which he seeks reversal. They are (1) admission of expert medical testimony regarding X-ray findings when the X-ray photographs were not produced for his inspection or introduced in evidence; (2) admission of the investigating officer’s opinion that blinker lights of the truck driven by defendant were not in operation at the time of the collision; and (3) admission of the investigating officer’s opinion of the speed of the plaintiff’s vehicle at the time of the collision.

We will first consider the second assignment, that it was error to admit the opinion of the officer that the blinker lights on defendant’s truck were not on immediately prior to the collision.

Plaintiff’s petition charged defendant with negligence by failing to give a proper signal for a turn. Defendant answered, and offered evidence, that his blinker lights, indicating a turn, -were on; and he charged plaintiff was guilty of contributory negligence in failing to take notice of them. Defendant and one witness said they were on prior to, and at the time of, the Collision-Plaintiff said they were not. Tt appears-from all the evidence that, if working, the blinker lights would have been sufficient to give notice of defendant’s turn which resulted in his collision with plaintiff.

The officer was asked this question by plaintiff’s counsel:

“From your investigation and from your statement, based upon your expert opinion and your training in these matters, do you have an opinion as to whether Mr. Hodo-had those blinker lights on immediately prior to the time of the accident?”
Defendant objected as follows:
“Your Honor, we object to this type question unless there is some expert way he-knows.”

Plaintiff’s counsel responded by observing, “Maybe he does.” Defense counsel replied, “All right. Let him tell what it is.”’ Thereupon the court asked plaintiff’s counsel;

“Did you arrive at a determination by-reason of your investigation, is that what you’re asking?”

When plaintiff’s counsel acknowledged' the restatement of the question by the court to be the question he was asking, the court permitted an answer. Defense counsel then-stated into the record, “Show our objection.”

Plaintiff argues that the above proceedings do not constitute an objection by defendant to the admission of the officer’s ■ opinion concerning the blinker lights.

In Ponca City Building & Loan Co. v. Graff, 189 Okl. 410, 117 P.2d 514, 518, we said:

“The purpose of an objection in a trial is - to call the court’s attention to errors-being committed so that the court, as well-, as the opposing party, will be advised and have an opportunity to correct them.. Such objections are not for the purpose-of laying a predicate for a reversal of the - judgment on appeal, if the same should be • unfavorable.”

[251]*251It must follow from that statement of purpose that if an objection is sufficient to advise the court and opposing counsel of the alleged error being committed, it is a proper objection upon which to preserve the question thus raised for appeal.

We find the form of defendant’s objection, arising as it did in the proceedings above set forth, sufficiently advised the • court of the purpose for defendant’s objection.

The real basis for the witness’ opinion that the blinker lights were not in operation immediately prior to the collision came to 'light on his cross-examination. He said in •substance that he was of the opinion that ■they were not on immediately prior to the •collision because it was not reasonable for ■ one to attempt to pass a truck if the signal lights were on indicating a turn into his lane • of travel, and since plaintiff was trying to ■ pass the defendant’s truck when they collid- • ed, the lights must not have been on.

The implications and presumptions ■ necessary to justify that conclusion are multitudinous, so we will pause to mention but a few. The officer must have presumed that ■plaintiff was both alert and looking in the •direction of the blinker lights. Even with . those presumptions his ultimate opinion that ■the lights were not on was based upon his further opinion of “reasonable human be'havior” under the circumstances of the collision here involved. The officer was not •qualified as an expert in that field, and there is no indication that he was possessed • of any special knowledge or had had any experience or training in regard to “reason- ■ able human behavior” under those circumstances which the jury was not likely to 'have had. No explanation of any application of the witness’ expertise was given which would indicate his competence as an expert to render the opinion requested. We are aware of none which could have been ■ given. This opinion is based upon a conclusion similar to the one we rejected in National Zinc Co. v. Crow, 187 Okl. 513, 103 P.2d 560, 562. In that case witnesses were rpermitted to give their opinions that some of plaintiff’s colts were affected with a sometimes fatal malady by smoke from defendant’s smelter. The basis for those opinions was shown to be that the witnesses could not think of any other cause for the symptoms exhibited by those colts, and, therefore, they must have been caused by the smoke. We there held in the body of the opinion and in Syllabus 2 that -the rule regarding opinion evidence is as follows:

“For the opinion of a witness to be admissible, it is not necessary that the witness be a technical expert. It is necessary, however, that he have some peculiar experience, observation or training in the matter on which he gave the opinion, which is not shared by the average jury.”

The admission of the officer’s opinion in that regard was an invasion of the province of the jury for the reason that the knowledge, understanding and ability to determine the question was as inherent in a jury of ordinary men with ordinary education, of ordinary experience, as it was in the officer.

Plaintiff argues that if the admission of the opinion was error, it is not reversible error because it was merely cumulative; that no failure of substantial justice resulted by its admission; and that the jury was afforded a clear insight of the basis upon which it was given, so that it probably gave the opinion no more weight than it warranted. We cannot agree that the error is harmless or that it did not prejudice defendant. Plaintiff relies on Auten v. Livingston, 201 Okl. 467, 207 P.2d 256. We distinguished Auten, supra, in Maben v. Lee, Okl., 260 P.2d 1064, 1067 and that distinction is applicable to the facts of this case. The question of whether the blinker lights were on was such a material, probably vital, fact in this case that it may well have been the determinative fact upon which the issues of negligence of the defendant and of contributory negligence of the plaintiff were decided. It cannot accurately be said that that question was not a vital point or a material fact in this case.

[252]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Treadway v. Uniroyal Tire Co.
766 P.2d 938 (Supreme Court of Oklahoma, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
1967 OK 205, 437 P.2d 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodo-v-cox-okla-1967.