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English v. Wal-Mart Stores12/19/2000
estimony regarding an unknown person's motive were overruled.
Immediately following the exchange regarding whether the scene was changed, Counsel for English attempted to elicit testimony from Wageman about changes in Wal-Mart store policy regarding overstocking merchandise on shelves. Wal-Mart objected that subsequent measures were irrelevant. The trial court called the attorneys to the bench where a conference was held out of the hearing of the jury. At that time, counsel for Wal-Mart moved for a mistrial based on the court's comments on the evidence. The court responded as follows:
I will overrule your objection, Counsel. I heard the testimony, but it runs contrary to everything else in this case. That lady did not get a brain concussion and an eye hemorrhage from nothing happening to her, which is you old (sic) defense so far, and your defense so far has seemed absurd.
Wal-Mart again asked for a mistrial based on those comments by the court. The trial court responded:
Trial Court: Your objection is overruled. If you're going to put up a defense like that, you need to be prepared for anybody to see what's wrong with it. And I did not believe that the scene was not changed, and it was proven that the scene was not changed because the basket and the purse were not in the picture and you own witness admitted it.
Counsel for English: Your honor, for the record, since there has been a denial of the incident even occurring, how could this be a subsequent remedial measure?
Trial Court: Right. Right. My point exactly. All right. The objection is overruled and your motion for mistrial is overruled.
At the conclusion of the trial, the court instructed the jury on res ipsa loquitur. Nevertheless, the jury returned a verdict in favor of Wal-Mart.
English then timely filed a motion for new trial in which she alleged that the trial court's comments regarding the defense being absurd inflamed the passions and prejudices of the jury in favor of Wal-Mart. See 12 O.S.1991 §651(4). English asserted that although the transcript indicates the exchange was outside of the hearing of the jury, that the trial court actually made a loud outburst at counsel for Wal-Mart which caused juror sympathy towards Wal-Mart. English further argued that the jury's verdict was unsupported by sufficient evidence. See 12 O.S.1991 §651(6). English asserted that Wal-Mart presented insufficient evidence to rebut the evidence submitted by English. Finally, English argued that a new trial was warranted by statements made by counsel for Wal-Mart during closing argument, despite English's failure to object to those statements at trial. See 12 O.S.1991 §651(4).
At the hearing on the motion for new trial, the trial court reiterated its view that the defense was absurd. The trial court also agreed with English that statements made by counsel for Wal-Mart during closing arguments warranted a mistrial, although English never objected to the statements at trial and no transcript of the closing argument was available at the time of the hearing on the motion for new trial. Finally, the trial court indicated that "there were Wal-Mart connections all throughout that jury," and that Wal-Mart's closing argument threatened the jury that Wal-Mart would leave Garvin County if the jury found for English. The court explained its belief that counsel for English was simply being "courteous" in failing to object to Wal-Mart's closing argument. The court therefore granted English's motion for new trial. It is from that order which Wal-Mart appeals.
Wal-Mart's first assertion of error is that the trial court abused its discretion in granting
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