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English v. Wal-Mart Stores12/19/2000
plaintiff's counsel or the trial court believed either party could not receive a fair trial in Garvin County, then the matter should have been addressed before trial not after a verdict in favor of one of the parties.
We next address the trial court's finding of misconduct in Wal-Mart's closing argument. It is apparent from the trial court's comments in the hearing on the motion for new trial that the court believed that the jury's connections to Wal-Mart, coupled with counsel for Wal-Mart's closing argument, which the court believed to contain threats, constituted misconduct warranting a new trial. We have therefore read Wal-Mart's closing argument in its entirety and find no threat that Wal-Mart might pull out of Garvin County in the event of a plaintiff's verdict. In her brief, English refers to Wal-Mart counsel's statement in his closing argument that the jury would be giving a message to everyone in Garvin County regarding the standards to which a merchant is held. However, when counsel for English made his rebuttal, he agreed that the jury should "send a message." More importantly, however, English failed to object to any part of Wal-Mart's closing statement. Failure to object or move for a mistrial at the time of allegedly prejudicial argument waives the alleged error and the party will be deemed to have taken its chances with the jury. Bateman v. Glenn, 1969 OK 158, 459 P.2d 854, 858; Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, 455 P.2d 696, 698-9.
It is true that a stronger showing of abuse of discretion is required to reverse a grant of a new trial rather than a denial of a new trial. Dominion Bank of Middle Tennessee v. Masterson, 1996 OK 99, 928 P.2d 291, 294. However, upon comparison of the instant facts to other cases involving a grant of a new trial, it is evident that the trial court abused its discretion in the instant case. In Masterson, during voir dire a juror failed to disclose that he had been involved in other lawsuits and that the defendant's counsel had initiated garnishment proceedings against the juror. The Oklahoma Supreme Court noted that where a prospective juror gives false or misleading information so that counsel is precluded from inquiring completely regarding whether the juror is impartial, a new trial is warranted where the juror's misinformation has been shown to have caused an unjust verdict, citing Stilwell v. Johnson, 1954 OK 189, 272 P.2d 365, 368.
In Probst v. Alexander, 1995 OK 57, 898 P.2d 141, an injured mechanic brought both a workers' compensation claim against his employer as well as a negligence suit against the patron who injured him. In the negligence case, the trial court granted a motion in limine regarding mention of the workers' compensation case. However, the mechanic's surgeon accidentally mentioned workers' compensation while testifying. The mechanic's objections to this testimony and request for a mistrial were overruled. Further, the jury asked several questions about whether it could consider workers' compensation in its decision. After the verdict, in which the jury found the mechanic 49% contributorily negligent and awarded only 10% of the damages sought by the mechanic, he moved for a new trial, which was granted. The Supreme Court explained that a grant of a new trial should not be reversed "unless the record clearly shows that the trial court either erred on a pure and unmixed question of law or acted arbitrarily and capriciously." Id. at 144-145. Clearly, the instant facts are different from the prejudicial error caused by the injection of the issue of workers' compensation coverage into a negligence trial.
In Public Service Company of Oklahoma v. Brown, 1998 OK 121, 972 P.2d 354, the trial co
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