*1 purpose of 940.A. to used in a restric- §
tive and limited sense. We held that attor-
ney provisions fees recoverable under the prevailing 940.A. §
party contemplate only those actions for
damages physi- negligent willful property. nothing
Inasmuch as Harris us shows persuades holding
which us our in Woods followed,
should not we find the award attorney’s
herein of fees under 940.A. to
have in error. judgment awarding of the trial court
attorney’s fees this case is REVERSED.
HARGRAVE, V.C.J., and
LAVENDER, SIMMS, OPALA, SUMMERS, JJ.,
WILSON and
HODGES, J., dissents. J.,
KAUGER, dissents: “I would Flanagan,
overrule Russell v.
(Okl.1975).”
Catholyn M. STUDEBAKER and Robert Studebaker, Jr., individually
L. and as
co-guardians of Robert Barrett Stude
baker, infant, Appellants,
Eugene COHEN, M.D., and Tulsa Inc.,
Appellees.
No. 61369.
Oct.
Rehearing Denied Nov. *2 monitor,
lize an electronic fetal the sole purpose of which is to detect fetal distress during labor. physician
The professional and his corpo- ration contend no distress was noted and it impossible to determine that the child’s condition occurred oxygen as a result of deprivation. parents The counter-argue, because the doctor employ failed to device, monitoring appellees are not in a position to assert there was no fetal dis- tress labor. jury
The returned a verdict for the doc- professional tor corporation. and par- The appealed ents and Appeals the Court of affirmed.
Appellants assert the trial court erred in jury on an unavoidable cas- ualty language which contained concerning God”, “Act of depriving appel- lants of a fair trial. Instruction No. 13 given by the trial court reads as follows: “An casualty is one which Walker, Jackman, Pray, Williamson & occurred without part on the Jackman, by Marlar J. Warren and John F. of either party. An unavoidable casual- McCormick, Jr., Tulsa, appellants. for ty includes an Act God which is some inevitable accident as could not have byHill Secrest & W. Michael Hill and prevented II, Tulsa, appellees. James K. Secrest for foresight, which from HODGES, Justice. cause. find from the evidence in this case casualty dispositive issue to be dealt with on verdict should be certiorari is whether the casu- (Emphasis added). for the defendant.” alty” instruction which included “Act of language God” constitutes error. reversible The Court of ruled that the challenged instruction neg does not excuse We answer in the affirmative and find ligence physician and that there was that an Act of God instruction in a medical no evidence that the instruction within the malpractice case should not be pleadings, context of the evidence and in malpractice This medical action was whole, substantially structions as a preju brought by Catholyn M. Studebaker and agree. diced case. We do not Studebaker, (appellants) Robert L. Jr. indi- improperly gave vidually and on behalf of Robert Barrett impression separate there is a defense Studebaker, son, against their infant Eu- God, of Act of non-negli as distinct from gene Cohen, M.D., the board certified case, gence in negligence a which insulates child, specialist who delivered the and Tul- liability notwithstanding defendant from (appellees). sa Inc. finding proximate permanent The child’s and severe brain injury. City cause of the Tucson v. alleged oxy- to be the result of 570, 575-76, Wondergem, Ariz.App. gen deprivation during the mother’s labor 82-83 delivery. They allege negligence physician violating pur- of the instruction in a medi ported hospital by failing standards malpractice clearly improper. to uti- action is ty, provided approximate Instructions —Civ- as well as the sole cause of (OUJI-Civil) injury an Act of il does not contain However, states with God instruction. OUJI-Civil the defendant regard to unavoidable accidents: liable is caused an Act of in connection with which the “10.9 UNAVOIDABLE ACCIDENT concurring is one which unavoidable accident the injury would not have *3 the of occurs without on except negligence.” occurred for such party. If either find from the evi- added). (Emphasis in this case the accident was dence that verdict should be The natural event sole cause of must be the (name).” There for the Defendant the can no of combination negligence of a the and an Act defendant perA curiam order of the Oklahoma synonymous of God. God is not Court, 14, Supreme adopted December an unavoidable with accident that it states, 1981, “IT IS ORDERED THAT ef must arise from natural causes 1, January 1983, all courts in fective trial agency. unconnected with human Al- shall use con the instructions though all Acts of acci- God are inevitable the tained within Recommended Oklahoma dents, agency no because human can avoid Instructions —Civil.” it, every inevitable accident is not an Act of court determines that the recom God. accident” is a accurately instruction mended does not King term than an broader “Act of God.” law, it must include state within Co., Richards-Cunningham v. Wyo. 46 declining its reasons for use the record to 355, 492, 28 P.2d 494 recommended instruction. This order has prior as our Inasmuch cases limit what 12 Woo codified in 577.2. properly constitutes an Act of Co., 716 P.2d dall v. Chandler Material problems. doctrine does not include medical 652, (Okla.1986). trial court 653 Here the problems complica Medical as a result used should have the “unavoidable acci delivery labor an tions are not written, as dent” instruction without unexpected occurrence of such and extraor unrecognized inclusion “Act of God” character, dinary they frequently happen instruction. ordinarily beyond and cannot be viewed as Furthermore, an Act of God instruc Moreover, human control unforeseen. has been limited to natu tion this Court view, in our a defendant should not be such as In ral disasters storms and floods. allowed to claim that the cause of because Lemmons, Corp. 596, Oil v. 198 Okl. Gulf unknown, necessarily a disease is 568, (1947) 570 181 P.2d this Court cited Consequently, Act of God. the term “Act approval City Purcell v. Stubble with not encompass physical of God” should af 562, (1914) field, 41 139 Okl. P. 290 problems. Cox Ver flictions or medical requirements necessary two to establish an nieuw, 1353, (Wyo.1980) 604 P.2d 1358 “(1) defense: Act of God that nature’s act (also finding the defense of an Act of God (2) injury, was the sole upon in a founded case natural cause that the was of such charac negligence theory as superfluous). expected consequently to ter as not Accordingly, we hold trial court com- by precautions.” Generally, an avoided giving mitted reversible error in the Act of is some as Act of God inevitable accident This rec- God instruction. Court has never prevented by could not have been ognized ex- an instruction on Act of God foresight, but which cept in relation to dis- catastrophic natural exclusively from as asters. lightning, tempest and also stat flood. We Sonagerra, ed in Public Service Co. v. 208 The test instruction review of an (1953): Okl. 253 P.2d given improperly whether there unprecedented probability jurors “An Act of God is that the misled and such an were storm or flood as will from liabili- reached a result than excuse different they would have reached but the error. That no “unavoidable accident” instruc- Woodall, prob- general 716 P.2d at find a 654. We tion be instructions ability prejudiced adequately that case on cover challenged this by the Act of instruction. area. an erroneous
Where habit defenses which the effect of depriving appellants has categorized properly are as denials of alle- trial, the fair case will be reversed for a gations, can lead to incorrect burdens Metropolitan Insurance trial. new proof, arguing that Life so Fisher, Company v. as a defense (Okla.1963). faced with becomes the burden proving though the defense as it were an light of our determination that affirmative defense. improper, Act of God instruction was case is remanded for a new trial. The *4 remaining appellants issues raised Because, need
certiorari not be addressed.
however, the trial court’s admission into testimony concerning the moth
evidence prior teenage
er’s two could con abortions review, par reversible error
stitute judge word of caution ticular Oklahoma, rel., ex STATE OKLA- trial, if here warranted. At the new ASSOCIATION, BAR HOMA again proferred, evidence the trial court Complainant, objection upon timely should exclude it un there is medical less evidence some caus Harry EVANS, Respondent. C. al connection between the abortions suffered reason the al SCBD Nos. OBAD 734. leged negligence. having grant- previously Certiorari foregoing ed and for the above and rea- Nov. sons, opinion Court Rehearing Denied Dec.
VACATED; REVERSED; the trial court is pro- the case REMANDED for further ceedings opinion. consistent with this
DOOLIN, C.J., OPALA, KAUGER JJ., SUMMERS,
HARGRAVE, V.C.J. and ALMA
WILSON, J., concur result. SIMMS, JJ.,
LAVENDER and
dissent. WILSON, Justice, concurring
ALMA
in result.
The “unavoidable accident” instruction rarely It is only
in this case. Unavoidable way denying negligence.
another Instructions, Civil, Uniform Jury comment is made num- after instruction recommending 10.9
ber to this Court: