Tulsa City Lines v. Mains, 107 F.2d 377 (10th Cir. 1940).Grooms v. Johnson, 192 Okla. 527, 138 P.2d 98, 99 (1943). In Chicago, R.I. P. Ry. Co. v. Forsythe and Templar, 56 Okla. 26, 155 P. 851, 852 (1916) the Court cited Jones' Commentaries on Evidence, Vol. 2, p. 599 as authority for the rule as follows:
The trial court overruled plaintiff's motion and admonished the jury to disregard any comment in the argument concerning an offer. In support of its contention, plaintiff cites 12 O.S.Supp. 1963 § 651[ 12-651] subd. 4; 53 Am.Jur., Trial § 482; Grooms et al. v. Johnson, 192 Okla. 527, 138 P.2d 98; Plummer v. Fogley, Okla., 363 P.2d 238, 95 A.L.R.2d 251; Chicago, R.I. P. Ry. Co. v. Forsythe Templar et al., 56 Okla. 26, 155 P. 851; Kunkel v. Rattray, 110 Okla. 289, 231 P. 541. We agree that the above mentioned portion of the closing argument made by defendants' counsel to the jury was improper.
Jenkins v. Davis, 111 Okla. 191, 239 P. 135. See also Grooms v. Johnson, 192 Okla. 527, 138 P.2d 98, and Oklahoma Ry. Co. v. State ex rel. Department of Highways, 205 Okla. 325, 237 P.2d 878. In the case of State ex rel. Department of Highways v. Weaver, Okla., 297 P.2d 549, this court quoted with approval from the Oklahoma Ry. case, supra, wherein language in the body of the opinion in the Jenkins case, supra, was cited as follows:
The action of the court in striking the evidence and instructing the jury not to consider it was sufficient to remove any prejudice which defendants might otherwise have suffered by the introduction of this evidence. Fleming v. Pattillo, 196 Okla. 557, 167 P.2d 40; Grooms v. Johnson, 192 Okla. 527, 138 P.2d 98."
It is apparent that the testimony of this witness did not, in any wise, influence the jury and did not result in a miscarriage of justice, or constitute a substantial violation of a constitutional or statutory right so as to constitute reversible error. 22 O.S. 1951 § 1068[ 22-1068]; 12 O.S. 1951 §§ 78[ 12-78] [ 12-78], 636; Grooms v. Johnson, 192 Okla. 527, 138 P.2d 98; Byrd v. McKoy, 183 Okla. 209, 81 P.2d 315; Mid-Continent Petroleum Corporation v. Fisher, 183 Okla. 638, 84 P.2d 22. In Kelly v. Oklahoma Turnpike Authority, Okla., 269 P.2d 359, 366, it is said:
The action of the court in striking the evidence and instructing the jury not to consider it was sufficient to remove any prejudice which defendants might otherwise have suffered by the introduction of this evidence. Fleming et al. v. Pattillo, 196 Okla. 557, 167 P.2d 40; Grooms et al. v. Johnson, 192 Okla. 527, 138 P.2d 98. Objections were made by defendants as to other evidence admitted.
It is fundamental that a party cannot complain of errors that he invited and participated in. In Grooms v. Johnson, 192 Okla. 527, 138 P.2d 98, the rule is announced in the syllabus as follows: "A judgment will not be reversed because of the refusal of the trial court to declare a mistrial, on account of misconduct of counsel in propounding improper questions to a witness concerning an offer of compromise, unless it appears that substantial prejudice resulted therefrom and that the jury was influenced thereby to the material detriment of the complaining party."
The court ruled correctly in denying defendants' motion for a declaration of mistrial. Fleming v. Pattillo, 196 Okla. 557, 167 P.2d 40; Grooms v. Johnson, 192 Okla. 527, 138 P.2d 98. Defendants finally contend that the trial court committed error in its instruction No. 14. The court, in this instruction, among other things, charged the jury in fixing compensation to plaintiff for injury to his hand, it might take into consideration pain and suffering which he had already endured and which he would be likely to endure in the future.
The intervener being present, the mandatory provision of section 582, supra, was not violated. Although the action of the court may be considered to have been irregular, the lawyer of the defendant not having been notified and also given the opportunity to be present with his client at the time the additional and favorable instruction was given, the judgment should not be set aside because the action of the court in this respect was harmless. See 22 O. S. 1941 § 1068; Lookabaugh v. Bowmaker, 21 Okla. 489, 96 P. 651; Smittle v. Yadon Inv. Co., 154 Okla. 37, 6 P.2d 818; Potter v. Bond, 98 Okla. 135, 224 P. 537; Smith v. Pulaski Oil Co., 88 Okla. 47, 211 P. 1047; Foreman v. Henry, 87 Okla. 272, 210 P. 1026; Creek Coal Mining Co. v. Paprotta, 73 Okla. 119, 175 P. 235; Chicago, R.I. P. Ry. Co. v. Johnson, 25 Okla. 760, 107 P. 662; Tischer v. Arrington, 193 Okla. 584, 146 P.2d 121; 39 Am. Jur. § 69, p. 84; 12 O. S. 1941 § 78; Grooms v. Johnson, 192 Okla. 527, 138 P.2d 98; Wilson v. Holmes, 185 Okla. 239, 91 P.2d 85; and Mannford State Bank v. Arnold, 105 Okla. 131, 221 P. 76. Affirmed.
The ruling of the trial court and the admonition given by the court to the jury was sufficient to cure any error that might otherwise have resulted from such voluntary statements of the witness. Wray v. Ferris, 187 Okla. 428, 103 P.2d 942; Grooms et al. v. Johnson, 192 Okla. 527, 138 P.2d 98. The judgment is affirmed.