Blossom Heath Operating Co. v. Pipkin, Case Number: 25809

• Decision Date: 24 November 1936
• Docket Number: Case Number: 25809
• Citation: 1936 OK 730,178 Okla. 617,63 P.2d 982
• Parties: BLOSSOM HEATH OPERATING CO. v. PIPKIN
• Court: Oklahoma Supreme Court

1936 OK 730
63 P.2d 982
178 Okla. 617

BLOSSOM HEATH OPERATING CO.
v.
PIPKIN

Case Number: 25809

Supreme Court of Oklahoma

Decided: November 24, 1936

Syllabus

¶0 1. PLEADING - Sufficiency of Defendant's Answer and Evidence to Require Instruction on Issue of Contributory Negligence.

An answer charging contributory negligence in general terms is sufficient when not assailed by a motion to make more definite and certain; and where a reply has been filed to such an answer, and where the evidence is conflicting, or different minds might reasonably arrive at different conclusions, on the question of contributory negligence, it is error to refuse to submit a proper instruction on that issue to the jury.

2. SAME - Judgment for Plaintiff Reversed.

Record examined: Cause reversed and remanded, with directions to grant a new trial.

Appeal from District Court, Oklahoma County; Geo. A. Henshaw, Judge.
Action by Nina Pipkin against the Blossom Heath Operating Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

T.G. Chambers, Jr., for plaintiff in error.

Nowlin & Conner, for defendant in error.

McNEILL, C. J.

¶1 The sole controversy for our determination is whether defendant below pleaded and proved contributory negligence.

¶2 Defendant in error, plaintiff in the trial below, brought this action of tort to recover damages against Blossom Heath Operating Company, a corporation, for certain injuries which plaintiff alleged she sustained as a result of defendant's negligence. Plaintiff alleged, in substance, that defendant and its employees permitted intoxicated patrons to dance on the pavilion floor and that two such persons ran into and knocked her down while she was dancing as a guest with paid admission at the advertised entertainment and dance given by defendant. The defendant filed an answer by way of general denial, and further specifically alleged:

"For further answer the said defendants allege that any injuries sustained or suffered by the said plaintiff, or on the occasion in the complaint referred to, were caused in whole or in part, or where contributed to, by the negligence and want of care of the said plaintiff."

¶3 The cause was submitted to a jury on the primary negligence of defendant. The trial court refused to instruct on the question of contributory negligence. In this we think there was error. Judgment was rendered in favor of plaintiff in the sum of $1,000. This appeal has been perfected and the defendant below, plaintiff in error herein, challenges as error the refusal of the trial court to instruct the jury on the question of contributory negligence. Defendant contends that it sufficiently pleaded the defense of contributory negligence; and that there was sufficient evidence on that question to submit the issue to the jury. Relevant to that question defendant urges that the evidence showed that the plaintiff was dancing on the occasion in question with a drunken partner in the wrong direction and into the oncoming dancers and that she tripped herself; that the plaintiff's injuries were sustained on account of her own conduct.

¶4 It is the theory of the...