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English v. Wal-Mart Stores12/19/2000
English's motion for new trial. Wal-Mart relies on Bishop's Restaurants, Inc. of Tulsa v. Whomble, 1960 OK 44, 355 P.2d 560. Whomble is factually similar to the instant case. In Whomble, the plaintiff was injured when a restaurant waiter pulled a chair out from behind the plaintiff as she was attempting to sit down in the chair. The jury returned a verdict for the defendant restaurant and the plaintiff sought a new trial on the grounds that the verdict was contrary to the evidence and that the verdict was so "flagrantly opposed to the evidence as to appear to have been the result of prejudice . . ." The trial court granted the motion for new trial on the grounds "that the verdict of the jury is unconscionable; the Court cannot approve it; the Court believes that there was no contributory negligence in this case and I am surprised that the jury could, by any stretch of the imagination, find contributory negligence in this case." The trial court further based its decision to grant a new trial on its finding that the contributory negligence instruction should not have been given. In Whomble, the Oklahoma Supreme Court determined that the evidence supported the giving of the contributory negligence instruction. The court further noted that in its exercise of discretion, the trial court may not give effect to its own will and subjective views in substitution for the will of the jury. The court found that the record was free of errors at trial and that the verdict was supported by the evidence and that, accordingly, the trial court had abused its discretion in granting the new trial motion.
Likewise, in the instant case, the evidence supported the jury's verdict. Further, English failed to object at trial to the alleged errors which the trial court identified in the hearing on the motion for new trial, and, we do not find the alleged errors to be errors in fact.
We first address the trial court's finding of bias in the jury. In its statements at the hearing on the motion for new trial, the trial court stated: "There were Wal-Mart connections all throughout that jury, as would be revealed by a transcript of the voir dire. It is hard to find anybody in Garvin County that does not have a monetary connection to Wal-Mart." If that statement is accurate, then the proper time to investigate those connections is during voir dire. We have reviewed the transcript of voir dire and there are admitted connections with Wal-Mart. Two potential jurors stated they owned Wal-Mart stock. Each was questioned whether they could be fair in deciding the case. One of those jurors indicated she could not be fair and she was dismissed by the court. The other juror indicated he could decide the issue fairly. He was not challenged by English. Some of the potential jurors indicated that they shop at Wal-Mart, but each answered that they could be fair in their decision. One juror indicated that he does business with Wageman, the former Wal-Mart manager who was a witness in the case. Another juror stated that her fiancé had been hired by the Wal-Mart distribution center in Pauls Valley but had yet to begin work there. Each of these jurors indicated that they could decide the issues fairly and impartially. English failed to challenge any juror. Where a party fails to exercise its right to challenge jurors, that conduct indicates that the jury is acceptable to that party. Brown v. Marker, 1965 OK 172, 410 P.2d 61, 65.
Based on our review of voir dire, we find no indication that the jury panel was inherently biased in favor of Wal-Mart. The connections could have been favorable or unfavorable to Wal-Mart. There is no argument that any jurors were less than honest about the "connections." Plaintiff accepted the jury. If
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