Snyder v. Dominguez

¶1with whom KAUGER, J., joins, concurring.

¶2T1 I welcome today's reclarified exposition of Art. 23, See. 6, Ok. Const.,1 and concur in the court's pronouncement. Writing separately, I add my own gloss upon the critical issues in this case.

¶312 The single norm of the then-effective common law, which was excised from this state's legal system by the adoption of Art. 28, See. 6, OKI. Const., is that which conferred upon the trial judge the power to decide alone that a claim must fail as a result of plaintiff's contributory negligence. That trial judge's power came to be transferred to a jury. This is the sum total of changes effected by the section here under consideration.

¶413 Instructing the jury upon a non-existent issue of fact to be decided constitutes an unauthorized application of judicial force. Settled law eloquently so teaches.2 The rule governs us today. If, as it is the case here, there is no basis for assuming, from the *143proof admitted at trial, the presence of contributory negligence by the plaintiff, the trial court commits error when it makes mention in its jury instructions of that kind of negligence as though it were tendering an issue for the triers' decision. Submission of a non-existent defense invites the triers' unnee-essary diversion from the real issues in the case. It is manifestly prejudicial to the interests of the plaintiff. This is so because its mere injection into the case telegraphs that the claim is burdened by some legal weakness or defect that is capable of defeating its actionable quality

¶5T4 In sum, the phrase in § 6 which calls for its application to "... all cases whatsoeyer ..." means that its command shall govern all cases in which the admitted proof is sufficient to raise an issue submissible for the jury's consideration.3