 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Athey v. Bingham7/30/1991
statutory right.
The opinion of the Court of Appeals is vacated. We do not affirm the trial court judgment, but rather remand the cause to the Court of Appeals for the following reason. The plaintiff briefed two issues on appeal, the one disposed of here plus the trial court's refusal to take judicial notice of certain proferred material. The Court of Appeals addressed only the first, and in determining that the unavoidable accident instruction should not have been given remanded the cause for a new trial. Our opinion herein resolves that issue in favor of the defendant. No adjudication of the second issue occurred in the Court of Appeals, nor in this court on certiorari. We have not reviewed the other issue briefed by the plaintiff on appeal and we remand to the Court of Appeals without any suggestion as to its merit. The Court of Appeals shall review and decide the remaining briefed but unadjudicated issue.
HODGES, V.C.J., and LAVENDER, SIMMS, DOOLIN and HARGRAVE, JJ., concur.
OPALA, C.J., and ALMA WILSON and KAUGER, JJ., concur in result.
OPALA, Chief Justice, Chief Justice, with whom KAUGER, Justice, joins, concurring in result.
The court concludes that the trial judge committed no error by instructing the jury on unavoidable accident. Unlike the court's opinion, I would not answer today the appellant's (plaintiff at nisi prius) argument that an unavoidable accident charge is improper under all circumstances. The settled-law-of-the-case doctrine clearly bars her from pressing this contention in the instant appeal.
In her earlier quest for corrective relief in this very case appellant had urged that an unavoidable accident instruction is improper under any proof. The Court of Appeals firmly rejected this notion as an incorrect exposition of our law. Its ruling conclusively adopts the norm to be followed in all stages of this litigation. Under the settled-law-of-the-case doctrine the appellant is clearly barred from relitigating any issue decided in the previous appeal of this case.
I would hence hold today that the appellant may not in this appeal press her argument for this court's condemnation of an unavoidable accident instruction as improper in all cases. I would confine our corrective process to a review of the evidence elicited at the most recent trial, and I would conclude that the record proof adduced at nisi prius is sufficient to support the questioned jury charge on unavoidable accident.
Page 1 2 3 4 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|