Woodall v. Chandler Material Co., 63930

• Decision Date: 13 March 1986
• Docket Number: No. 63930,63930
• Citation: 1986 OK 4,716 P.2d 652
• Parties: Carl Cleon WOODALL, Appellant, v. CHANDLER MATERIAL COMPANY, Appellee.
• Court: Oklahoma Supreme Court

Page 652

716 P.2d 652

1986 OK 4

Carl Cleon WOODALL, Appellant, v. CHANDLER MATERIAL COMPANY, Appellee.

No. 63930.

Supreme Court of Oklahoma.

March 13, 1986.

Rehearing Denied April 15, 1986.

Earl W. Arnold, Tulsa, for appellant.

John Caslavka, Tulsa, for appellee.

MEMORANDUM OPINION

SUMMERS, Justice.

Plaintiff's brother worked for the defendant company which operated an aggregate processing plant. While visiting his brother plaintiff accompanied him into the kiln area where the brother was needed for business reasons. On the way and while passing through a darkened room the plaintiff walked off into an unguarded 14 foot deep pit, and was seriously injured.

One of the company's defenses was that plaintiff was a trespasser, which plaintiff controverted. The trial court properly submitted that issue to the jury with instructions defining invitees, licensees, and trespassers, and the duties of the landowner/defendant to each. The jury's verdict was for the defendant, and plaintiff appeals.

At issue is the sufficiency of Instruction No. 12, as follows:

"The owner of premises has a duty to a licensee, whose presence on the premises is known or reasonably could have been anticipated, not to injure him by a willful or wanton act, or by needlessly exposing him to danger by a failure to warn of hidden defects in the premises."

The instruction is from Oklahoma Uniform Jury Instructions Civil No. 11.8 verbatim.

The record demonstrates how this instruction, and more specifically the words "hidden defects", came to be the focal point of the trial. Our first clue is plaintiff's request for the following instruction to go along with No. 12:

"You are instructed that the term 'hidden danger within the terms of rules governing liability of owner or occupant of premises need not be totally or partially obscured from vision or withdrawn from sight." (Citation: Jack Healy Linen Co v. Travis, 434 P.2d 924 (Okl.1967))

This requested instruction was noted and refused by the trial court.

Our second clue is the note from the jury to the judge:

"Can the judge instruct us as to what the legal definition of 'hidden defect' is in regard to instruction No. 12? Is the pit a hidden defect?"

The court's response squarely completed the focus:

"There is no legal definition of 'hidden defect.' The question you ask is the issue to be determined by you considering all the evidence and the instructions in the case." (emphasis ours)

This court by per curiam order of November 15, 1981 directed that all trial courts use the OUJI-Civil instructions unless determined to be inaccurate. That order, however, clearly allowed the giving of proper instructions not contained in the published manual by this:

"IT IS FURTHER ORDERED THAT whenever the Recommended Oklahoma Uniform Jury Instructions--Civil do not contain an instruction on a subject which the trial court determines should be submitted to the jury or whenever a recommended instruction cannot be modified to cover the subject being submitted, it shall then be the duty of the trial court to submit that subject to the jury upon an instruction which will be simple, brief, impartial and free from argument."

This order has been codified in 12 O.S. 1981, § 577.2.

It is the duty of the trial court on its own motion to instruct the jury on the decisive issues raised by the pleadings and the evidence, but where the court instructs upon the issues in a general way and a party desires a more specific instruction, it becomes the duty of that party to request such instruction. 12 O.S. 1981 § 577(5); Binning v. Safeway Stores Inc., 532 P.2d 1198 (Okl.1975).

It has been said that the giving of a general instruction which covers the subject in an abstract way does not justify the refusal of a particular instruction correctly applying the law to a specific situation, when such instruction was properly requested. Barnett v. Garrison, 93 Cal.App.2d 553, 209 P.2d 426 (1949). Putting it another way, although a proposition of law applicable to the facts has been given to the jury in one instruction, the court should not deny a party relying thereon another instruction covering the same subject, but which defines with greater particularity and clearness the rights of the party depending thereon. Chaney v. Moore, 101 W.Va. 621, 134 S.E. 204 (1926)

Although we have held that a requested special instruction should be given where its effect is to increase the clearness of the issue, Livingston Oil Corp. v. Shefts, 92 Okl. 292, 219 P. 101 (1923), we have many times held the refusal to submit special requested instructions not to be in error where the instructions as a whole fairly and reasonably presented the issues in the case. Okla. Tax Commissn. v....