Clark v. Continental Tank Co., 744 P.2d 949

Clark v. Continental Tank Co.

744 P.2d 949

Okla.

1987

Check Treatment

*1 anticipa- that he Dunitz which he stated medical treatment and

ted no future

any Holley discomfort suffered as result non-pre- injury could be treated

scription pain relievers. We find no error give

in the trial court’s failure to an in- expenses on future medical under

struction

these circumstances.

V. opinion Appeals, of the Court of

Division IV rendered in this matter is VA- judgment of the trial

CATED. court appellee

rendered verdict

AFFIRMED.

DOOLIN, C.J., HARGRAVE, V.C.J., HODGES, SIMMS, OPALA, SUMMERS, JJ.,

WILSON concur.

KAUGER, J., concurs in result. CLARK, Appellant,

Max A. TANK

CONTINENTAL

COMPANY, Appellee.

No. 62720.

Supreme Court Oklahoma.

Oct. 1987.

As Corrected Oct. *2 granted have certiorari to address

We impression question. procedural first I. plain

At for the the outset counsel rule,” phrase which is the tiff “invoked the customarily require witnesses used they until remain outside the courtroom are testifying. finished In the law this is sequestration, or, known as the rule of recently, more the rule of exclusion wit counsel, however, nesses. Defendant’s re quested of the court to allow one of leave expert its witnesses to remain court during room witness, plaintiff’s expert part of as forming opinions. for own basis his granted request. court Plaintiff claims this error of a reversible nature quest appeal in his for another trial. The first in the evidence statute code requiring analysis is 12 our O.S.1981 Woodward, Halley, appellant. Duke for of Witnesses: Exclusion § Greenwood, Huckaby, Fleming, W.D. party court request At the of a shall Darrah, City, Frailey, & Oklahoma Chaffin they order excluded so that witnesses appellee. testimony of other cannot hear the wit- may nesses. The court make the order SUMMERS, Justice. of its own motion. This rule does not authorize of: exclusion hold By decision we that the Okla- this change Code did not homa Evidence person; 1. A is a natural party who gave long-standing rule that a trial court expert as to whether an discretion employee party An of a officer or may requiring excepted from rule be person designat- which is not a natural sequestration Upon of witnesses. review representative by attorney. ed as its its well, allegations of error we other as argues Plaintiff that the statute forbids the affirm. presence the courtroom during testimony, peri- other than his own AND FACTS HISTORY urges legislative od. He that such intent working While in the oil fields by be inferred the fact that the Okla- severely a flash fire occur- burned homa Code in 2615 omits what would ring manually draining a while he was exception the rule have been third piece equipment production known as exception what remains as such He sued defend- heater/treater. comparable Federal Rules of Rule Evi- products liability, ant/manufacturer dence, namely: claiming design defective and failure to person presence 3. A whose shown response alleged warn. Defendant alter- party pre- to be essential manufacture, misuse, ation and vol- since sentation cause. of his untary assumption of a known risk. The origins First let trial resulted a defendant’s verdict. us look at the rule Ap- seeking its a truth appeal purposes. Plaintiffs went to As de- Court peals, early judgment. affirmed the lower vice it seems to have been discovered long going exceptions as far back as ecution. This set of practiced1 found its story and the of Susan- days way of Daniel into the Federal Rule 615 men- above na.2 tioned. Geders purpose is described in Its exception Another widely rule has States, 80, 87, United 425 U.S. S.Ct. been considered to within the discretion (1976):

1330, 1347, 47 L.Ed.2d 592 court, of the trial and that is for an witness, testifying imposing the rule on wit- not as to the “The aim of truthful *3 nesses, practice sequestering controversy, rendering ness of facts in as the but called, opinion upon is sometimes is twofold. an based a or witnesses stated assumed on witnesses tai- exception It exercises restraint set of facts. fact such has loring rule, that of earlier general according their to to Lew become witnesses; Owen, detecting in is v. 537, (10th and it aids testi- 395 F.2d 541 Cir.Okl. mony 1958) is less than candid.” general that, “The rule is always notwithstand-

Acknowledging that there is ing excluding a court order possibility perjured but consistent testi- witnesses during being presenta- in detail in ad- from the court room mony worked out evidence, vance, tion of Wigmore Professor maintains: it is within the sound permit discretion of the court to an ex- “But when all allowances are made it pert witness to in the remain court room expedient true of se- remains testifying, while other witnesses are (next cross-examination) questration is to ' only the court’s action is reviewable engines greatest one of the that the skill prejudice abuse discretion and has for the detec- of man ever invented complaining party.” 88 C.J.S. Trial justice.” Wig- tion of liars a court of 65-67; River Tunnel Elizabeth Dist. 463) (P. more 6 1838 §§ Yol. § Beecher, 452, v. 685; 202 Va. 117 S.E.2d universally accepted As as this doctrine 469, 85 A.L.R.2d Anno. 478. This rule is law, however, in the common it was recognized by the Oklahoma courts. widely judge equally as held that the trial Co., Sharp v. Ice Pawhuska 90 Okl. authorizing had discretion in individual ex- 214; Bagby, v. Oskison 217 P. 172 Okl. ceptions Wigmore, supra to the rule. 569, 46 P.2d 331. example, fre- 1841. For trial courts § Sharp Oskison In addition to the Okla- quently allowed witnesses to remain cited, Supreme homa Court cases therein manage- court where their assistance Colley Sapp, v. essential, there is the earlier case of ment of the case was deemed (1914) officer,3 142 P. 989 in which this key Okl. such as a law enforcement or complaining pros- said: witness4 a crimnal court Evidence, Wigmore put Then he him aside and commanded § 1. on 1837. 56. other, bring to and he said to them him_58. then, under “Now tell me what 2. Two elders lusted after the beautiful Susanna. being you with tree did catch them intimate proposition they pub- When she declined their an each other?” He answered "Under ever- licly having accused her of an meet- adulterous green ing who, garden young oak.” in her husband’s with a man said, loudly assembly all the shouted they they appeared. 60. Then so fled when God_ they being verge and blessed 61. And rose She was on the convicted when elders, up: against spoke of their own Daniel the two for out bearing had convicted them of mouths Daniel fools, you you 48. "Are sons of Israel? day onward false witness. 64. And from that you daughter Israel Have condemned among peo- great reputation Daniel had learning without examination and without ple. "Sepa- facts?” 51. And Daniel said to them Susanna, Apocrypha of the Old other, The Book of Testament, them far from each and I will rate Version. Revised Standard examine them.” they separated from 52. And when were (Okl.Cr.1954). State, Jasper 269 P.2d 375 one of them and each other he summoned said_54. then, really you Now saw her State, (Okl.Cr.1956); P.2d you 4. McKinnon v. tell me this: Under what tree did see State, Ellington 229 P.2d 902 being 94 Okl.Cr. them intimate each other?” He (1951). answered “Under a mastic tree.” testify opinion an of the trial form of or other- is discretion within “[I]t per- fair judge, justice,' it does ‘when wise.” give opinion upon his mit a witness This section’s few words indicate that last read, he has heard or testimony which expert testify any par- need not one material there is no conflict when form, responding by opinion ticular such as referred, evidence to which witness hypothetical question.7 to a Which leads opinion his is to be and from which following Code 2703—Bases of us to § Evidence, Wigmore on 681.” formed. Opinion Testimony by Experts: exception to rule particular “The facts or data in the case logic. in court He is not is based sound upon opinion bases an or happen. or say happened did what perceived by inference those or may only give his wasn’t there. He He at before him made known to opinion upon “what if” this or based hearing. If type reasonably of a relied tradi particular facts true. The set of upon by experts particular field opinion testimony way his tional to elicit *4 opinions forming upon or inferences hypothetical question, by asking him a subject, the facts or data need not be question by law must be based (emphasis admissible in evidence.” add- Co. v. evidence. Sooner Const. facts ed) Brown, (Okl.1975). Hypothet 544 P.2d 500 provision questions were sometimes considered This the final Code we must ical abuse,6 subject to and an resolving alleged cumbersome5 or deal with error in use of in let alternative to the them was allowing expert defendant’s witness to lis- ting hear an the witness uncontradicted plaintiff plaintiff's expert ten to testi- portion of on which to base is clear fy. It that under common Sharp v. Pa opinion, part of it. his or al- Oklahoma such would have been Co., Colley Bagby, Oskison v. whuska Ice lowed, absent abuse of the trial court’s Sapp, v. supra. purpose of the rule all Only if the 1978 Evi- discretion. Oklahoma thereby preventing collusion part changed of the law dence Code defeated, expert must since the correct. could be opinion on that are perforce base his facts He cites 2615 to show has. Section § in the record and before trier of facts— says the order 2615 court “shall witnesses expert hear prejudiced how is one excluded.” Does that not mean “all wit- instead them from the witness stand say Sec- Firstly, nesses”? it doesnt’ “all.” friendly from counsel? ondly, subject to at the word witness hypothetical with the Disenchantment (1) being meanings: two One who least reform as question has resulted sees, hears or present personally otherwise Code: 2702 the Oklahoma Evidence § beholder, spectator or thing; observes 8 by Experts. (2) Testimony eyewitness persons sworn to testi- cause,9 including, fy any purpose for in a scientific, special-

“If technical or other example, interpreter.10 an It is knowledge ized will the trier assist of witnesses that has first classification or to fact to understand evidence universally from issue, almost excluded quali- determine a fact a witness witnesses, skill, rea- by hearing the other for the knowledge, fied as an training by as Daniel. The ex- experience, or sons demonstrated education Ina.); Travelers, (CCA "[I]ntolerably wordy”, according 126 F.2d 659 to McCor- mercial 5. Ed., Evidence, Dictionary. 2nd mick on P. 36. Blacks Law Evidence, Whinery, Oklahoma Guide 6. 388; N.Y., McChesey Lanning, 18 Johns 9. Code, P. Oklahoma Evidence 239. Dictionary. Law Blacks Whinery, supra, P. 239. interpretor is a witness and should 10. "An Corsino, Estate, A. 261 104 sworn.” Com. v. 739, Pa. 229 294 N.W. 8. In re Harters Iowa (1918). (1940); Wigginton United Com- Order of giver, pert opinion member of the second time which in combination with it witnesses, classification of has historical- brings injury.” (Emphasis about ly11 remain in added) been allowed to the court- room or discretion of not within the particularly urges that the judge. trial nongiven words request- underlined Reading together the two sections we significant ed instruction were in their ab- changed conclude the law has not been so given, sence from the instruction regard. If this under the facts claims the was thus misled on the upon or data which the his bases approximate issue of direct or cause. opinion “may perceived by be those ... him America, Volkswagen Fields v. hearing” at ... it cannot be error to (Okl.1976), appeal plain- P.2d 48 from a' perceive him allow such facts listen- products liability, tiffs verdict in we re- ing testimony. We cannot conclude request viewed such an instruction at the legislature, intentionally that the either appellant defendant. The instruc- unintentionally, proce- altered that rule of objected tion the defendant was the by adoption dure of the Evidence Code. requested by same in plain- essence as tiff in this case. In Fields we held the II. instruction not to be and af- reversible excep appeal Plaintiff on takes firmed. tion Instruction No. 10 which defined Although plaintiff direct cause. failed to Again in Spe Messler v. Simmons Gun specifically object to Instruction No. 10 he cialties, Inc., (Okl.1984) 687 P.2d 121 we timely did offer his own Instruc *5 reviewed such an instruction on behalf of cause, subject tion No. 8 on the of direct defendant-appellant the who had lost a proper and therefore we consider the issue products liability Again case. we held that ly preserved for review. The instruction prejudiced by the defendant was not the given by the court was taken from “OUJI- missing inclusion of the words from the (as products CIV. No. 9.6” altered for lia given in this instruction case. no case bility) and read as follows: have we held that a non-reference to other

“Direct cause means a cause which concurring grounds possible causes is for sequence pro- natural and continuous prejudicial plaintiff. reversal as injury inju- duces and which the without suggests this should be that first Plaintiff ry happened. would not have In order case. defect, any, product for the to be many This court has times held that necessary, it direct cause that some judgment appeal not be injury person plaintiffs to a will disturbed the situa- allegedly erroneous instructions unless reasonably tion must have been forseea- for designer appears reasonably jury of certain that the ble manufacturer or it thereby. Gip product.” was misled v. U.S. Smith (Okl.1980); sum, 612 P.2d 251 MKT v. Har requested Plaintiffs No. 8 Instruction (Okl.1970). per, P.2d 1014 would have read as follows: of proximate injury “The of an means In this case there was no evidence cause concurring mis- possible the same cause causes other than which natural or con- plaintiff. Although it sequence of tinual without the intervention use on behalf error, might any produces injury. not have and even other cause would been given preferable to have And without which the result would not have been instruction, happend. type we cannot only have It need not be the Fields-Messler probability jury that the with find a reasonable cause. It is it concurs sufficient if was misled this case. acting some other cause at the same portion brought and then one case been to our atten- a limited of the Not has tion where a trial have abused testify. court was held to allowing discretion in an witness to hear complaint plaintiff experienced plaintiff’s its use. The was have reviewed We given, using piece equipment find No. 15 as and oil field worker with Instruction propo- together the four putting familiarity. no error in with he had Plaintiff which in one instruction.12 safety sitions that the devices had was well aware been disconnected and/or removed and he next contends that it was Plaintiff aware, admissions, by his own was give his for the court to refuse to error using piece equip- inherent risk of plain no. 16.13 requested instruction safety ment without such devices. Evi- Cunningham v. Charles cites tiff Pfizer undisputed that the safe- dence at trial was Co., Inc., (Okl.1975) and P.2d 1377 ty product devices were on the when it left that a proposition that this court held the manufacturer’s hands control and pre to a plaintiff is entitled rebuttable product that had been altered and/or sumption that he have heeded a would field. modified Therefore, warning. failure to advise case, according jury of fact in this plaintiff's Plaintiff and own ad- plaintiff, error. This court stated warning mitted a would had been of no use Cunningham: warning because a would not have instruct- plaintiff as a “The issue of whether plaintiff anything ed or informed the he person reasonably prudent would have already did not know. The adequate to take the vaccine if refused Cunningham did not have the benefit of given warning had been should have knowledge experience. On this jury.” Id. at 1382. been submitted to the distinguishing presumed fact warning may Cunning- have aided that a In this case it was uncontroverted Further, plaintiff’s re- ham. we note that warning provided on the heat- no had been “warning re- quested instruction no. However, we think that er/treater. it from Cun- quired” plaintiff’s instruc- distinguishes here evidence ningham warning” “adequacy tion no. 15 were experi- incorporated in the trial court’s instruction respect product enced and well 9.14 presented jury inherent risks involved in as no. 8 and no. aware of all the presumption heeded. A is a conclusion 12. Instruction No. 15 reads as follows: requires to make from proving “The defendant has the burden *6 facts, convincing particular in the absence of following propositions: but, contrary; plaintiffs out- evidence to the unless so 1. That the actions were the sole and injury; weighed, jury direct cause of his or the is bound to find in accordance plaintiff presumption. 2. That the misused the heater/treat- with the instructions; er, as misuse is defined in these or contrary presented, and the If such evidence plaintiff danger whether, 3. That the was aware the light applied by you to be test risk; voluntarily and assumed such or circumstances, involved prudent per- a reasonable of all product it left 4. That the was modified after plaintiffs position would have refused son and control of the defendant and that such modi- using product he was to use the in the manner injury. of the fication was the direct cause warning adequate risk been if or had at the time you plain- If find from all the evidence that the given.” proved propositions has each of the he is tiff required prove, proposi- and that of the to none follows: 14.Instruction No. 8 reads as requried prove have tions the defendant is to product may of harm to "A that involve a risk proved, your been verdict should be in favor of by persons property an ordi- or when it is used you plaintiff questions liability. on the If nary it is intended or that user in a manner that find, your verdict should be for the do not so may reasonably expected and be is defective Company.” defendant Continental Tank dangerous accompa- unreasonably it is not if warning by that are suffi- Instruction No. 16 reads nied or instructions 13. Plaintiff’s ordinary user of a hazard as follows: cient to inform expect. Warnings reasonably or not user would inadequate, you warnings that the were "If find preventing possi- purpose instructions for inadequate warnings and that such an rendered improper injury owing or unintended to an ble product unreasonably dangerous, you then reasonably expected. partic- might If the use must also determine whether would ordinary apparent danger to an would be product adequate ular to use the have refused warning product itself or of the given. from the nature user had been to the user contrary, information known from other If absence of evidence to the there required." warning warnings thereof is not presumption have is a that such would (defendant’s “I no objection case when have ex- find the instructions We hibit) no. than the has fairly presented the other fact that it as a whole considered by by underlining altered counsel been applicable. (Tr. 266) portions red of it”. (which Defendant’s exhibits 3 and 4 were III. being photographs) were offered at the proposition plaintiff raises the The same time. All three exhibits were volun- ex allowed defendant’s the trial court that tarily by the counsel withdrawn defense formally intro not no. which was hibit During ruling from the court. without evidence, jury go into the into duced trial, photograph the course exhibit Negrate other exhibits. room with nos. 3 and were introduced into evidence (Okl.1955) Gunter, this 285 P.2d through conclu- another witness. At the said: Court case, all in the sion of evidence defendant’s jurisdictions, in most general is a rule “It 2no. delivered other ex- exhibit was with statute, in the of and under absence both juryroom. to the hibits on retire to deliberate jury when the distinguish Defense would Ne- counsel verdict, they may court’s their inasmuch as the exhibit in that case grate them and take with such books discretion presented, by never heard or known to in evi- introduced paper have been presented It jury. had been outside the action either in send- dence. court’s hearing support jury of a motion. documents to the ing refusing to send Conversely, no. 2 in exhibit this case was with room will not be interferred jury fully jury’s presence in the discussed appeal except in a case of abuse. sentences had been underlined documents, course, photographs and Of jury by read on said statement were not into papers admitted evidence expert, plaintiff’s objection all without jury room”. not be sent to the If ex- plaintiff’s counsel. allowance of the prepared a written statement Here go jury it was hibit to error jury, although it plaintiff went to the error not a for rever- harmless cause not admitted into evidence. had Clinic, Orthopedic sal. Karriman jury’s consideration Plaintiff claims the (Okl.1973). Finding no reversible P.2d 534 re- prejudicial, requiring this document is judgment of the district court error the objection that the has versal. upon defendant/appellee favor of the based document is not it was is affirmed. the verdict truth, that the defense counsel fact the but V.C.J., red, DOOLIN, C.J., HARGRAVE, portions underlined certain had LAVENDER, them, HODGES, pur- SIMMS emphasizing therefore WILSON, JJ., concurs. advancing interpretations or theo- pose of defendant. ries favorable to the J., OPALA, judgment; concurs *7 prejudicial that the sentences Defendant counters I find no reversible open court and underlined were read errors. hearing by plaintiff’s expert jury of KAUGER, J., dissents. of, inquiry objection. After due without KAUGER, Justice, dissenting: plaintiff's expert, defense and holding agree logic of the to- I sought introduce the exhibit counsel court with discretion only vests the trial exhibits. It was which

gether with other is concerning whether plaintiff’s counsel stated then warning given, manu- adequate is When an No. reads as follows: Instruction "A nary reasonably warning adequately ordi- as- inform the must and the distributor facturer heeded; any, must precautions, if he a user read and sume that will be risk, exposed any, he to in warning, take bearing is safe product product. warning must reason- followed, use ably condi- it is is not defective use if tion, extent of seriousness communicate the unreasonably dangerous." nor is it danger. result from the the harm could exempted requiring seques- the rule from However, I cannot as

tration witnesses. Mildred T.R. FORD and A. Ford, readily Appellants, the Okla- reach the conclusion that not change did homa Evidence Code therefore, am, I reluctant to law. common RAAB, Dorothy McCarty Riggs Sam S. language by reinserting amend the statute Riggs, and Oneita M. also as known deliberately Leg- deleted which was McCarty Riggs Oneita and also known incorporation Generally, the into islature.1 Riggs, Neudorff, McCarty as Oneta V.R. statutory of a portion state of a federal Fleetwood, known C.A. also as C.M. im- provision an intention not to indicates Fleetwood, Fleetwood, Nell M. Lelia Here, port portion.2 the more the omitted Bixler, Elizabeth Fleetwood Amanda legislative, remedy byis rather appropriate Moore, Payne Douglas Fleetwood S. action. by judicial than Evans, Evans, Compa S.R. Tenneco Oil appellant allegations raised three ny, corporation, a Continental Oil 1) of 12 appeal: error on violation O.S.1981 Company, corporation, a Natomas allowing appellee’s expert America, Inc., corporation, North a in the courtroom after witness to remain Phillips Company, corpo Petroleum appellant had the rule of ration, the unknown successors of M. exclusion; 2) faulty instructions which mis- McCarty, known as also Marcellus products stated of manufacturer’s the law McCarty, Deceased, Annie B. making ap- liability, thus verdict for Deceased, McCarty, Appellees. 3) pellant delivery impossible; No. 57540. document, prejudicially marked which had evidence, admitted into Supreme Court of Oklahoma. during Perhaps none of its deliberation. 20, 1987. Oct. standing prejudiced alone these errors appellant presentation of his case cumulative jury, but the effect of these

allegations requires that cause re- remanded for a

versed and new trial.

Opala, J., concurs the dissent insofar

as it conclusion reaches the that the Okla- legisla-

homa Evidence Code indicative of abrogate the pre-existing

tive intent sequestration.

common-law rule of *8 10, 1977, Revenue, on Sen- 2. Willmus v. Commissioner 371 When March Oklahoma SB-276, 210, (Minn.1985); passed equivalent Service ate the Oklahoma N.W.2d 214 AirWork Evidence, Director, Taxation, Division Division Federal Rules of the bill con- v. 729, (1984); issue When the NJ. A.2d State tained the subdivision at here. Greenwald, (Me.1982); Judiciary bill Committee of the House 454 A.2d Walk- exited 13, 1978, Wedgwood, April Representatives 64 Idaho 130 P.2d 856-857 the third er (1942). longer paragraph no §of 2615 was included.