Sutton v. Jondahl

• Decision Date: 21 January 1975
• Docket Number: No. 2,No. 46662,46662,2
• Parties: Earl W. SUTTON and Lavon R. Sutton, Appellees, v. John JONDAHL and John Jondahl, III, Appellants
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 478

532 P.2d 478

Earl W. SUTTON and Lavon R. Sutton, Appellees, v. John JONDAHL and John Jondahl, III, Appellants.

No. 46662.

Court of Appeals of Oklahoma, Division No. 2.

Jan. 21, 1975 Released for Publication by Order of Court of Appeals Feb. 27, 1975.

John W. Raley, Jr., Northcutt, Northcutt, Ellifrit, Raley & Gardner, Ponca City, for appellees.

Lana Jeanne Tyree, Benefield, Shelton & Johnson, Oklahoma City, for appellant John Jondahl.

BRIGHTMIRE, Judge.

Landlords' fire insurance carrier sued a tenant and his 10-year-old son (in the name of the property owners) to recover a $2,382.57 fire loss. A jury returned a verdict favoring the insurance company against only the father. From a judgment on the verdict the father appeals claiming it resulted from some fatal judicial mistakes--two instructional and one evidentiary. We agree and reverse for a new trial.

The pertinent background and operative facts include these. Once upon a time the elder Jondahl rented from the Suttons a home for his family in Ponca City, Oklahoma. For Christmas 1968 he gave an inexpensive chemistry set to his 10-year-old son--a co-defendant--who performed experiments for about a year without mishap.

Then, on January 11, 1970, the budding scientist took an electric popcorn popper to his bedroom and while using it to heat some chemicals a flame suddently flared upward igniting nearby curtains causing damage to the house in the amount of $2,382.57.

Central Mutual Insurance Company which covered subject premises with fire insurance, paid the loss, and then, as subrogee, brought this suit against John Jondahl and his boy, alleging, in substance, that the father contributed to the cause of the fire by breaching a duty to prohibit his son from carrying on unsupervised chemical experiments in the bedroom.

Later, at the request of defendants, the court required Central to substitute itself for the Suttons since it paid the full loss and therefore the landlords were not real parties in interest.

Defendant first says the trial court committed an error of a fundamental nature by telling the jury in Instruction No. 9--'. . . Unless the Defendants prove to your satisfaction that they, or either of them, was not negligent, you should find in favor of Plaintiffs in the sum of $2,382.57.' This instruction, he argues, cast upon defendants the burden of proving their innocence--an especially egregious error when considered in light of the fact the jury was never advised that plaintiff had the burden of proving negligence on the part of each defendant. We agree. No other instruction mentions anything about who has the burden of proof in the case. The first one--given at the beginning of the trial--informed the jurors in a general way about their duties and certain elementary features of the proceedings irrelevant to the problem here.

The second instruction--given along with ten others at the close of the evidence--stated simply: 'This is a civil action prosecuted by Central Mutual Insurance Company against John Jondahl and John Jondahl III. The Plaintiff alleges that a fire which occurred at 1713 Cedar Lane, Ponca City, Oklahoma, on January 11, 1970, was the result of the negligence of the Defendants. More specifically the Plaintiff alleges that John, III, improperly conducted his chemistry experiment and that his father failed to exercise proper supervision. Plaintiff alleges that the negligence of both Defendants caused a fire resulting in damage in the amount of $2,382.57. The Defendants have filed separate answers in which they deny negligence on their part.'

Instruction No. 3 defined 'ordinary care,' suggested what 'negligence imports,' defined 'actionable negligence' as consisting of three elements (duty, its breach, injury to the party suing 'proximately' caused by the breach), repeated that negligence must be 'the proximate cause of the injury and damage,' and explained what proximate cause is.

The fourth charge discussed the meaning of the phrase 'preponderance of the evidence.'

Number five told the jury that if they found defendants 'guilty of negligence, the fact that the owners of the property have been reimbursed by insurance for the resulting damages does not relieve the Defendants of their negligence.' The impropriety of this instruction will become manifest later on.

The sixth instruction stated a separate standard of care for minors, while the seventh informed the jury that 'a parent must exercise reasonable control and supervision over his minor child.'

Charge number eight explained that the 'original Plaintiffs,' the Suttons, owned the property in question and that when the fire occurred it was occupied by the Jondahls who as tenants had a duty not to negligently injure the property.

The ninth instruction begins as a 'finding' one and before it ends takes on the character of res ipsa loquitur. In substance it advised that if the fire damage was caused by things solely under the control of 'either' defendant, and such fire damage would not have occurred but for negligence on the part of 'either' defendant, then a 'presumption of negligence on the part of (both) Defendants has been established. Unless the Defendants prove to your satisfaction that they, or either of them, was not negligent, you should find in favor of the Plaintiffs in the sum of $2,382.57.'

The remaining three advise that the father alone can be found guilty, that the amount of damages is agreed to, and that it will take the concurrence of at least five jurors to return a verdict.

The assailed ninth instruction, we think, is fundamentally wrong and misleading in a way that even a consideration of instructions as a whole fails to cure. Its form and substance has the effect of making a 'presumption of negligence' under the doctrine of res ipsa loquitur--and a preliminarily conclusive one at that--in that without placing any burden on plaintiff of proving anything it told the jury that if they found two predicatorial facts then the law presumes defendants were negligent on the basis of which plaintiff 'should' have a verdict 'unless the Defendants prove to your satisfaction that they, Or either of them, was not negligent.' ¹

In the first place the law does not do the presuming or inferring in connection with subject rule of evidence. All it does is permit the jury to infer or presume negligence from the mere happening of the accident under certain circumstances. Lawton Coca-Cola Bottling Co. v. Shaughnessy, 202 Okl. 610, 216 P.2d 579 (1950). Except for unusual circumstances the...