Johnson v. Wade

JOHNSON, Richard Administrator of

Estate of Doris Marie

deceased, Appellant, WADE,

W. H. d/b/a Clean Car

Wash, Appellee.

No.

Supreme Court Oklahoma.

March

As Corrected March reversed, Having

сlaim. Ap- the Court of peals necessary not deem it to consider propositions presented the other of error "Wolfe, Lampkin, McCaffrey & Tawwater Appellant. Appellee sought certiorari only by Larry Tawwater, Oklahoma City, issue of burden of ain appellant. party negligence claim. Having previously Page McAlister, Dobson and William C. granted certiorari, portion we vacate that Rhodes, Hieronymus, Holloway Wil-& Appeals opinion of the dealing Court son, City, Oklahoma and Wright, Dale Ed- with said issue and affirm the jury verdict mond, appellee. for of the trial court. Johnson, accompanied by Doris her BARNES, Vice Chief Justice: friend, White, Dorothy drove to a self-ser- Johnson, Aрpellant, Richard Administra- vice, twenty-four operated hour coin car Johnson, tor estate of Doris Marie Edmond, wash in car Oklahoma. The was deceased, brought ac- wrongful this death placed in a wash stall and one of the women tion under the theories of machine, quarter placed a that manufacturers’ liability against soap turnеd on the that water and flow Wade, Appellee, W. H. d/b/a Clean through a house and wand. Before Doris court, Car Wash. finding The trial that wand, Johnson it got hold of flew out of products liability met, criteria were sus- holder, spraying soap. its water Appellee’s tained demurrer to the evidence flailing wand either hit Doris Johnson on on said theory and submitted the сase to ground her head or caused to fall to the

jury on theory only. The to or the side wall the wash stall. The a returned Ap- unanimous verdict for disputed woman, evidence is as to which pellee. Appellant following raised the six Doris actually Johnson or issues on appeal: put the coin in the machine. There was (1) The court in refusing apply erred to further a previous evidence that customer the doctrine of manufacturers’ prod- had improperly put wand back into its action; ucts present a ninety degree holder and had bent it to (2) The instructing trial court erred by angle. that Appellant had “no case” stated, previously As in products liability; petition only certiorari аsserted as error for (3) The instructing trial court erred in Appeals opinion that of the Court of the Appellee have that held that the trial court committed of proof burden on its failing reversible and fundamental error in of third party negligence; Appellee charge to had the (4) The trial court erred In- giving proof party negli burden to a аs third struction No. 8 it because had the Appellant claim. No answer effect imputing any negligence of Appellee’s petition for certiorari was filed. Johnson; party third to Doris granted July 18, This Court certiorari on (5) The trial court refusing erred in Following grant this Court’s of cer- give Appellant’s proposed instruction tiorari, Appellant requested permission on emergency; sudden supplemental a on the man to submit brief (6) The refusing trial court erred in products liability issue. ufacturers’ Such opinion allow on ultimate ‍‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​‌​​‌​‌​​​‌​​​​‌​​​‌​‌​‌‌‍fact is- supplemental September was on brief filed sue by expert witness. 30,1980. Appellant, respondent Appeals certiorari, The Court ques affirmed the trial cannot raise a рetition for court’s sustention of the petitions demurrer concern- tion on review unless he for relief ing products liability, manufacturers’ but assigns point, error and where reversed and application remanded the issue of bur- a not file such does den of in a party negligence rehearing Appeals third in Court of and does not defendant’s, petition ques- determining for certiorari and he cannot whether there contributory negligence.5 tion the judg- correctness of a ment or decree which challenged.1 is not Appellant appel- contends since the Any party who desires this Court to review proving by prepon- lee had the a a Appeals, any decision of the Court of аppellant, of evidence that Doris derance portion thereof, be he “winner” or “loser” contributorily negligent, Appeals in the Court of petition and must only logical place upon appellee the bur- for rehearing Appeals in the Court of proving negligence, den third petition 5, however, must this Court for certiorari.2 Is- well. Instruction No. did not impose proving the burden of petition sues not raised in for certiorari to appellant; simply Appeals review Court of decision will not be stressed the fact that must appellant considered.3 We therefore decline to re- prima facie case: view the Appeals’ ruling Court of “The jury trial shall consider the evidenсe as court had acted properly sustaining considering to this whether a appellant’s demurrer to action based on plaintiff’s allegations against or not the products liability. manufacturers’ proven by the defendant have been a Appellee, petition certiorari, in his (In- preponderance of the evidence.” cоntends that the Court of Appeals erred in 5). struction No. holding that the party neg- defense of third Appellee argues that the case of Cabiniss ligence by appellee was an “affirmative de- Andrews, (Okl.1953), v. 258 P.2d 180 holds fense,” carrying corresponding with it a a defensive claim of third duty proof, of and further contends that the theory is a of defendant’s casе raised trial court’s instruction to the purview general with the of a denial and is appellee had no proving burden of third not in the nature of an affirmative defense. party negligence was correct. Instruction Cabiniss, we stated that: No. 5 in reads: general plea “... under denial and a of “As to allegation by the defendant accident, unavoidаble defendant is enti that Dorothy White was negligent in not rely any tled to state of facts which following posted instructions fail- negligence upon tend to disclose lack of ing to turn the switch position to the ‘off’ necessity pleading his without the of before inserting turning the coin de- such as matters in the nature of an af vice held, before the wand was the de- (258 182).6 firmаtive defense.” P.2d fendant has no burden of proof....” require Since Oklahoma does not Contributory negligence in Oklahoma is party negligence specifically third to be an upon affirmative defense which the de- pleaded, neglig as contributory it does for fendant has the burden proof.4 The ence,7 party negli it follows that third plaintiff required is not thе ab- defense, gence is not an affirmative but sence contributory as a defense, negative goes which to causation case, of his but making has the burden of require and does not The Ne a burden. prima out his against facie case defendant: Court, Supreme braska v. John Schmidt duty, breach, jury may causation. The con- son, 643, (1969), 184 171 Neb. N.W.2d 64 evidence, sider all the plaintiff’s as well as stated: Eagie-Picher Mining Smelting 1. 14 C.J.S. & Co. Drink 5. Section 150. wine, 662, (1943). 192 Okl. 141 P.2d 66 1976, O.S.Supp. App. 2. 12 Ch. Rule 3.13. Melott, 6. See also Otis Elevator Co. v. P.2d 281 Berge Berge, 189 Colo. 536 P.2d 1135 Dairy, Hydrotex (Okl.1955); Gillette 408 ‍‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​‌​​‌​‌​​​‌​​​​‌​​​‌​‌​‌‌‍(1975). Industries, Inc., (8th 1971). 440 F.2d 969 Cir. Wilson, Hair v. (Okl.1964); ns 391 P.2d 789 Ka Thigpen, Hancock 208 Okl. 256 P.2d City Railway Marrow, Southern Co. v. (1953); 12 O.S. 1971 § (Okl.1958); City P.2d 817 of Hartshorne v. Car iomango, “Where it (Okl.1978) is claimed that conduct P.2d 1071 requiring the ] another, suit, not a slightly negligent party pay for а dis- sole, proximate cause of the proportionate part of the others not such an plea defense is not affirmative to the suit. a result should Such avoidance of cause of action permitted if arewe to remain true to the and poses proof no burden of on defend- Laubach, several see 12 O.S. thereto, аnt with relation but is one en- (624 69-70.) § Second.” P.2d tirely provable consistent with and under We hold that a claim of third general (171 67.) issue.” N.W.2d pleaded under a denial party negligence Since third con defense, not an goes affirmative but causation, cerns is the prov causation issue. trial court did not ince prima until a facie case commit error in Instructiоn No. 5. is made out.8 The defendant then has the affirming we are Since the trial court and burden going forward with the evidence reversing Appeals the Court of on the issue prima after the has made his facie proof burden in a third ease. claim, party negligence it now becomes nec- Appellant reads the recent case of Paul v. essary consider and address the other Industries, Inc., N. L. propositions presented by of error Appel- 1980), placing lant, order to ascertain if the Appellee when there is a alleged was effective. to be negligent. The Paul case holds only that negligence the non-party of tortfeasors Appellant complains that the tri should by bе considered the jury order to prejudiced al the Appellant by specifi court apportion negligence. The Paul case does cally instructing jury the Appellant that not expressly the of assign liability. had ease” in products Appel “no party, although either the result is that brought upon lant this action the theories plaintiff must non-joined bear the risk of products negligence liability. of Both parties: viable until the theories remained court sus hand, “On the one should evidence of tained the demurrer to negligence tortfeasor’s be ad- theory the liability Appellant’s at close of mitted into evidence for purpose the of duty It evidence. is the of the trial court to properly apportioning the of degree neg- properly define and limit the issues sub ligence, it would force the to not determination,9 for jury mitted only prove part negligence of the necessary this case it was for court defendant, but also to non-negli- it jury theory advise the that had ruled the gence part on the of parties. the third products liаbility applicable of was not aas hand, “On other should such third of matter law under the evidence in the party negligence not be admitted into they might case so that understand the evidence, the defendant runs risk of charge. boundaries of it might their While bearing the entire financial burden of appropriate have been more instruct that may misfortune when he only products liability issue was “withdrawn be slightly negligent causing injury consideration,” considering the in negligence when his compared whole, structions as a which instructed negligence upon total all parties. may This

defeat the purpose negligence several and the expressed Morgan, in Laubach of contributory negli- 588 affirmative defensе [v. Steel, Richardson, City 699, 8.Fisher Gate Schaff 190 Neb. 254 P. 496 Holland, (1973); Whisnant v. N.W.2d 914 392, (1956). Or. McIlrath, Clayton 241 Iowa N.W.2d (3) paragraph While it true that rights that the gence, appear it does not Dorothy negligence White’s suggests that Appellant prejudiced.11 were imputed Appellant’s decedent and can be alleges that the court erred Appellant (1) suggests Appellant paragraph giving Instruction No. because had fully if there was cannot recover any negligence of Doro- imputing effect of Doro Appellee’s, with either concurrent decedent, Doris thy Appellant’s White to Johnson, said instruc thy White or Doris four Johnson. Instruction No. 8 sets out harmless error inasmuch tions constitute jury determining alternatives for the finding which re did not make a negligence: Form No. 1 or quired use of the Verdict “(1) you If find that the accident was para Form No. 3. The used Verdict part solely by negligence caused (2) of the instruction and Verdict graph defendant, Triple H. Wade dba W. only was to be used if Form No. which Wash, by any negli- and not Clean Car ‍‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​‌​​‌​‌​​​‌​​​​‌​​​‌​‌​‌‌‍part of there was no on the decedent, Doris part on the of the stated, i.e., “and not Appellee, and which so Johnson, Dorothy part Marie or on the part of the de by any negligence on White, either of which contributed to the judgment A will not be dis fendant”. your cause of the an erroneous instruction turbed because of should be in favor of the appears was misled unless against you thе defendant and should use prejudice the com thereby, resulting in Verdict Form No. 1. plaining parties.12 hand, “(2) you the other if find that On case, Appellant was not In the instant solely by accident was caused 3rd giving harmed of the 1st and decedent, part on the alternatives in Instruction No. inasmuch Doris Marie or on the any findings make under as the did not partly by negligence such alternatives. them, on the both Appellant It is asserted on behalf of any negligence of the defend- emergency the sudden an instruction on ant, H. W. Wade dba Clean Car applicable doctrine was as a counter defense Wash, that contributed to the cause of Appellant’s decedent your the then should be verdict contributory negligence. guilty you in favor of the defendant and should (Okl.1973), 1101 511 P.2d Carnes use Verdict Form No. 2. on we affirmed the trial court’s instruction “(3) you If find that the accident was requi- emergency and reiterated the sudden by negligence caused on the of both doctrine: sites of said decedent, the Doris Marie Johnson and/or (1) There must be facts sufficient “.. . on the White and the emergen- an inference of sudden to raise defendant, W. H. Wade dba Clean (2) appear It made to cy; must be Wash, you Car must determine the emergency by the was not created the percentages of their as it com- party seeking the instruction.” pares to 100%and so indicate on Verdict Form No. 3. was not clear as Since the evidence

“(4) you If was re Appellant’s find that neither has to whether decedent the sponsible creating emergency, sustained its burden of the emergency instruction should have of the other in the sudden However, in causing question, you given. the in an erroneous accident been reversal, unless it may struction is not cause for find 0% misguided the parties probably both оn Form No. 3.” is shown to have Verdict Volkswagen (Okl.1977); Gray, Fields v. Gasko v. P.2d 831 America, Inc., (Okl.1976); 48 20 O.S. 555 P.2d Co., 3001.1; Wilkerson Motor § 12 O.S. § 580 Anderson, (Okl.1978); Hames v. P.2d 505 otherwise, vacated, jury; it is harmless.13 the is Since reversed and and the trial the returned unanimous verdict for court’s affirmed. compare negli- defendant and

gence of the parties non-party, or IRWIN, J., HODGES, LAVENDER, C. give Appellant’s proposed failure instruc- DOOLIN, OPALA, JJ., HARGRAVE tion emergency on sudden could not have CORNISH, Judge, Special concur. misguided jury. The error there- fore harmless. J., SIMMS, part, concurring dissenting part. complains

Lastly, Appellant the trial allowing Appel court erred in not The was ap- Honorable TOM CORNISH expert lant’s express witness to an opinion pointed special judge vacancy to fill the on the ultimate fact issue. According WILLIAMS, by created J. death of Code, the Oklahoma Evidence 12 O.S. 1, 1978,testimony effective § October SIMMS, Justice, concurring part, dis- by expert “in the opinion form of an or part. senting in inference objec otherwise admissible is not agree tionable because it an I with on majority accuracy embraces ultimate decided the trier of fact.” of Instruction No. Third Because this trial occurred before the evi gence an does constitute affirmative effective, dence code rely defense; became we must plain- merely controverts one of general Barger rule stated in allegations. tiff’s essential Mizel, (Okl.1967): P.2d dissent, however, resрectfully I . recognized generally “.. It majority’s treatment other instructions. that opinion held evidence an expert alone, correct, Standing Instruction No. 5 is regarding the ultimate fact issue is coupled but when with Instruction No. inadmissible.” misleading convey the instructions im exception rule is when pression a choice must make the conclusion to be drawn from the facts or as to whether defendant a third depends upon professional or scientific was the we stat cause of the accident. As knowledge and is not within capabilities Miller, ined Dismuke v. juries or ordinary training or intelli- 1959) regarding the issue of third gence.14 Buller, As said in Tuck v. 311 P.2d negligence: (Okl.1957): practice “... it would be much better “A wide given latitude of discretiоn is clarify express an instruction determining admissibility trial court in concerning negligence law and causal expert testimony expert opinion.” connection, inform thereby expressly jury though that even the third Since the operation of car wash might negligent ... the defendants technical, highly the expert’s concurring also liable if there ‍‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​‌​​‌​‌​​​‌​​​​‌​​​‌​‌​‌‌‍was be testimony jury allowed the to deduce part.” P.2d at negligence on their whether conditions were unsafe or 1052. defective, wand we hold there was no error

in testimony the court’s refusal of jury to im- charge When instructions ultimate fact issue. pute negligence inappropriately sug- reasons, solely negli-

For the above that portion gest stated that а defendant must be of Appeals opinion dealing liable, Court gent they to be do the instant case, with the reasonably issue of the will jury it is certain Appellee’s allegation of third misled. Reese, Co., Johnson, supra; Braggs (Okl. 1960); Wilkerson Motor 14. 357 P.2d 997 Anderson, supra. Hames v. v. Ed Missouri-Kansas-Texas Railroad Co. wards,

Furthermore, the trial court’s I believe advising

Instruction No. liability products had “no case” in considеring the prejudicial, especially manufactur intersecting concepts

often negligence.

ers’ has “no case”

statement sugges

products liability carries with it ‍‌​‌‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​‌​​‌​‌​​​‌​​​​‌​​​‌​‌​‌‌‍the case aspects plaintiff’s

tion that other alone,

are a statement also doomed. Such explanation of accompanying

without an vitality case

the continued emphasizes

negligence, singles out admo

fact to the exclusion of others. The

nition that a certain issue is “withdrawn belongs consideration” evidence, not as a

after a demurrer to the

prelude to numerous instructions. placed emphasis instructions should be evidence, presented the issues questions already of law decided Page Hardy,

court.

1958). Oklahoma, rel., ex OKLAHO

STATE ASSOCIATION, Petitioner,

MA BAR RASKIN, Respondent.

H. Richard

No. SCBD

Supreme Court of Oklahoma.

March

Rehearing Denied March

Case Details

Case Name: Johnson v. Wade

Court Name: Supreme Court of Oklahoma

Date Published: Mar 10, 1982

Citation: 642 P.2d 255

Docket Number: 51842

Court Abbreviation: Okla.