Mosley v. Truckstops Corp. of America

Mosley v. Truckstops Corp. of America
1993 OK 79
891 P.2d 577
64 OBJ 1859
Case Number: 77916
Decided: 06/02/1993
Modified: 06/02/1994
Supreme Court of Oklahoma

RICK MOSLEY, APPELLEE,
v.
TRUCKSTOPS CORPORATION OF AMERICA D/B/A TRUCKSTOPS OF AMERICA, APPELLANT.

[891 P.2d 578]
Certiorari to the Court of Appeals, Division 1; Thomas C. Smith, District Judge.

¶0 The appellee, Rick Mosley (Mosley/employee) incurred an injury while working for the appellant, Truckstops Corporation of America (Truckstops/employer). The employee neglected to return to work as scheduled and was terminated for voluntary job abandonment. Mosley filed an action against Truckstops alleging retaliatory discharge because he filed a workers' compensation claim. The trial judge, Honorable Thomas C. Smith, refused to allow a jury instruction which would relieve liability of the employer if the employee engaged in misconduct, although the misconduct was discovered after the employee was terminated. The Court of Appeals reversed. We find that: 1) a jury instruction relieving an employer of liability for terminating an employee engaged in misconduct discovered after the employee is terminated is contra to Oklahoma retaliatory discharge jurisprudence and giving the instruction is reversible error; and 2) the instructions given were consistent with Oklahoma retaliatory discharge law.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED IN PART AND MATTER REMANDED TO COURT OF APPEALS FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

G. Thorne Stallings, Jr., Blanchard, for appellee.

Melvin C. Hall, Oklahoma City, for appellant.

KAUGER, Judge:

[891 P.2d 578]

¶1 Two issues are presented: 1) whether the trial court's refusal to give a jury instruction relieving an employer of liability for terminating an employee for misconduct discovered after the employee was terminated is grounds for reversal;

FACTS

¶2 Truckstops Corporation of America (Truckstops/employer) hired Rick Mosley (Mosley/employee) as a mechanic in November of 1989. On April 5, 1990, Mosley slipped in a pit and injured his ankle. He worked the remainder of his shift and all the next day. The employee received treatment for the injury on April 7, 1990; and he contacted Truckstops on April 9, 1990, concerning his injury and medical treatment. The employer sent Mosley to a doctor who gave the employee a release to return to work;

¶3 At this juncture, the employee and employer differ on the facts. The employee's version is that he attempted to contact Truckstops on April 16, 1990, in reference to his visit to the doctor, but that he was unable to reach the employer. The employee insists that on April 17, 1990, he discussed his injury with Truckstops and informed them that he needed time off to recuperate. Later that same day, the employee returned to the doctor and received another limited work release.

¶4 The employee further asserts that he informed Truckstops on April 24, 1990, that his condition had not improved and that he consulted a lawyer in reference to a workers' compensation claim. On that same day, the employee noticed that he was not on the next weeks work schedule. On April 25, 1990, the employee retrieved his tool box from Truckstops for safekeeping. He attempted to contact Truckstops again on April 26, 27, and 30, 1990. The employee insists that because he had not received a full paycheck for several weeks, on May 1, 1990, he inquired concerning his eligibility to obtain food stamps. It was at this time that the employee learned that he had been fired.

¶5 The employer contends that it requested that the employee work on April 20, 1990, and that he refused. Truckstops alleges that the employee did not contact them, and that he continually neglected to return to work or [891 P.2d 580] to call in. Truckstops also contends that it was not aware that the employee had filed a workers' compensation claim until 6 to 8 weeks after his termination on May 1, 1990,

¶6 It is undisputed that the employee, when filling out his application for employment on November 13, 1989, neglected to list a guilty plea to a March 20, 1981, felony. Furthermore, the employee listed a wife and two children as dependents on his health insurance enrollment, when in fact the woman was married to someone else at the time. These facts were not discovered by Truckstops until after Mosley was discharged. On July 13, 1990, the employee filed suit seeking compensation pursuant to 85 O.S. 1981 §§ 5 -7 ,

¶7 The Court of Appeals reversed and remanded. It found that: 1) because the trial court failed properly to instruct the jury that evidence of an employee's misconduct should be considered in determining the amount of damages, the jury was misled; 2) that the proposed instruction should not have been given, but instead, should have stated that a claimant may recover if retaliatory motivation comprised a significant factor for the termination even when other legitimate reasons are present;

I.

A JURY INSTRUCTION RELIEVING AN EMPLOYER OF LIABILITY FOR TERMINATING AN EMPLOYEE ENGAGED IN MISCONDUCT DISCOVERED AFTER THE EMPLOYEE IS TERMINATED IS DISCORDANT WITH OKLAHOMA RETALIATORY DISCHARGE JURISPRUDENCE AND GIVING THE INSTRUCTION IS REVERSIBLE ERROR.

¶8 The employer asserts that under 85 O.S. 1991 § 5 ,

¶9 Truckstops' proposed jury instruction based upon Summers would bar any relief to the employee, if he engaged in serious misconduct, even if the misconduct were not discovered until after the employee's termination.

¶10 In Summers, an employee filed suit against a former employer under Title VII for age and religious discrimination. The employer asserted that the reason for [891 P.2d 582] Summers' termination was a bad attitude and a poor rapport with co-workers and customers. Before being fired, Summers had been placed on probation for falsifying several claims documents; and he was warned that he would be fired if he engaged in further falsifications. Four years after discharging the employee, the former employer discovered 150 instances in which the employee had falsified company records. The employer argued that the 150 falsifications, unknown at the time of discharge, should be considered in determining the remedy available to the employee.

¶11 The Tenth Circuit agreed with the employer, holding that "while after-acquired evidence cannot be said to have been a `cause' for Summers' discharge in 1982, it is relevant to Summers' claim of `injury,' and does itself preclude the grant of any present relief or remedy to Summers." Thus, the Summers case fashioned a rule that an employer may avoid all liability for a discharge based solely on unlawful motives by proving that it would have discharged the worker if it had possessed full knowledge of the circumstances existing at the time of the discharge.

¶12 While the Court of Appeals recognized that Summers differed factually from the present action, the Court found that the same issue was presented: whether an employee should be allowed to recover for wrongful termination when it is later discovered that the worker committed misconduct which would warrant termination. Although, the Court of Appeals recognized that Summers was not precedential authority, it found that it was highly persuasive and that it should be incorporated into Oklahoma's retaliatory discharge law.

¶13 The Summers rationale has not been extended beyond the context of civil rights employment discrimination violations.

¶14 We have never applied the Summers rationale to a retaliatory discharge action based on 85 O.S. 1991 § 5 . In Buckner v. General Motors Corp., 760 P.2d 803, 806 (Okla. 1988), this Court adopted jurisprudence developed in the law of employment discrimination pertaining to order and burdens of proof under 85 O.S. 1981 § 5 .

¶15 The rule of law concerning retaliatory motivations under § 5 is stated in Thompson v. Medley Material Handling, Inc. 732 P.2d 461, 463 (Okla. 1987). In Thompson, we held that when retaliatory motivations comprise a significant factor in an employer's decision to terminate an employee, even though other legitimate reasons exist to justify the termination, the discharge violates the intent of § 5. This holding was reaffirmed in Buckner.

¶16 The employee relies on Mantha v. Liquid Curbonic Indus., 839 P.2d 200, 203 (Okla. App. 1992) to illustrate how Truckstops instruction would clearly violate principles set forth in Buckner and Thompson. The facts of Mantha are substantially similar to those presented here. The Mantha Court recognized that a ruling which would allow post-termination reasons for the employee's discharge to bar an employee's right to recover, regardless of the employer's wrongful conduct, would stand in direct conflict with our holdings in Buckner and Thompson. Even though it is not controlling,

II.

THE INSTRUCTIONS GIVEN WERE CONSISTENT WITH OKLAHOMA RETALIATORY DISCHARGE LAW.

¶17 The employer asserts that without the requested instruction, the jury was misled as to the legal significance of the employee's misconduct. Truckstops insists that the jury heard evidence regarding Mosley's admitted falsifications of his employment application and his health insurance form, and that without the proposed instruction it could not fully consider the employee's misconduct contrasted to his claim for relief. The employee contends that the instructions that were given allowed the jury to fully consider evidence of his misconduct.

¶18 Instructions are explanations of the law of a case which enable a jury to understand its duty and to arrive at a correct conclusion.

¶19 Here, the jury was instructed that: 1) the burden is on the employee to establish by a preponderance of the evidence the elements necessary to establish a claim under § 5;

¶20 The standard of review is whether there is a probability that the jury was mislead and thereby reached a different result than it would have reached but for the error.

CONCLUSION

¶21 This Court has promulgated decisions related to employment discrimination under 85 O.S. 1991 § 5 . We have not adopted a Summers rationale, nor has Summers been extended to workers' compensation actions. Applying a Summers-based jury instruction to retaliatory discharge actions would clearly violate established Oklahoma retaliatory jurisprudence. A jury instruction which relieves an employer of liability for terminating an employee engaged in misconduct discovered after the employee was terminated is inopposite to Oklahoma law and giving the instruction is reversible error.

¶22 Testimony and evidence presented at trial may have suggested a retaliatory motive. Because the instructions that were given fairly reflected Oklahoma retaliatory discharge law, we cannot say that a jury relying on the instructions given would have been misled or reached a different result had the instructions been worded differently.

¶23 We do not affirm the trial court judgment. Instead we remand the cause to the Court of Appeals. We do so because, in addition to the instruction issue, Truckstops challenged on appeal the propriety of awarding punitive damages. Because the Court of Appeals reversed and remanded based on the instruction issue, the issue of punitive damages was not visited. We note that our recent decision in Hough v. Leonard, 867 P.2d 438, 445-446 (Okla. 1993) revising Rule 3.15 of the Rules on Practice and Procedure in the Court of Appeals and on Certiorari to that Court, 12 O.S.Supp. 1993, Ch. 15, App. 3, is not applicable to the instant cause. Hough and the revised rule provide that should we vacate an opinion of the Court of Appeals, we may address the matters not decided or remand for determination of issues left unresolved by the Court of Appeals' decision. Prior to the revision of Rule 3.15, this Court had followed two procedures on certiorari. Johnson v. Wade, 642 P.2d 255, 257 (Okla. 1982) required any party desiring review of the Court of Appeals' decision, whether "winner" or "loser", to petition for certiorari. In Handy v. City of Lawton, 835 P.2d 870, 874 (Okla. 1992) and Athey v. Bingham, 823 P.2d 347, 350-351[891 P.2d 586] (Okla. 1991), the causes were remanded to the Court of Appeals for adjudication of assignments of error left unresolved. Today, we invoke the doctrine of Handy & Athey and exercise our discretion to remand the punitive damages issue to the Court of Appeals for adjudication. We express no view as to the merits of the issue nor as to the extent of Truckstops' preservation of arguments in regard thereto.

¶24 CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED IN PART AND MATTER REMANDED TO COURT OF APPEALS FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

¶25 LAVENDER, V.C.J., and HARGRAVE, SUMMERS and WATT, JJ., concur.

¶26 SIMMS, OPALA and ALMA WILSON, JJ., concur in part and dissent in part.

¶27 HODGES, C.J., dissents.

Footnotes:

1 Truckstops' proposed jury instruction based on the holding of Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 708 (10th Cir. 1988) provides:

"If you find that the Plaintiff committed acts which constituted serious and pervasive misconduct and if you further find that the defendant employer would have been justified in terminating the employment of the plaintiff based upon this serious and pervasive misconduct, you must find the plaintiff is not entitled to any relief. In considering the acts of the plaintiff, you should consider acts which were committed by the plaintiff, even if those acts were not discovered by the defendant employer until after the plaintiff's employment terminated." (Emphasis supplied.)

2 The instruction given on the issue of other legitimate reasons which the employer may discharge an employee provides:

"You are further instructed that the applicable statutes do not prohibit an employer such as Defendant from discharging an employee such as Plaintiff because the employee is absent from work, even when the absence is caused by compensated injury and medical treatment.

Also, Defendant may show that the Plaintiff's discharge was for additional legitimate non-retaliatory reasons, such as Plaintiff's inability to perform assigned duties, Plaintiff's job abandonment and/or Plaintiff's bad faith pursuit of a Workers' Compensation claim."

The instruction given was taken from Buckner v. General Motors Corp., 760 P.2d 803, 806-807 (Okla. 1988), and Pierce v. Franklin Elec. Co., 737 P.2d 921, 924 (Okla. 1987). In Buckner, we held that after a prima facie case is established, the burden shifts to the employer to rebut the inference that its motives were retaliatory by articulating that the discharge was for legitimate non-retaliatory reasons. Two of these reasons include the employee's inability to perform the assigned duties and the bad faith pursuit of a compensation claim. In Pierce, we held that §§ 5-7 of title 85 do not prohibit the discharge of an employee because he is absent from work, even when the absence is caused by compensated injury and medical treatment.

3 On April 9, 1990, the doctor gave the employee a limited work release allowing limited lifting and walking for a one-week period.

4 On April 17, 1990, the doctor revised the previous work release to limited walking only.

5 There is further dispute as to the date of termination. The employee asserts that prior to trial the employer answered interrogatories identifying an actual discharge date of April 17, 1990, for voluntary job abandonment. Truckstops contends that the employee was not terminated until May 1, 1990.

6 The 1981 version is unchanged from the 1991 version of 85 O.S. 1991 § 5 , see note 9, infra. Title 85 O.S. 1981 § 6 provides:

"Except as provided in Section 29 of this act, a person, firm, partnership or corporation who violates any provision of Section 5 of this title shall be liable for reasonable damages, actual and punitive if applicable, suffered by an employee as a result of the violation. An employee discharged in violation of the Workers' Compensation Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee."

Section 6 was amended effective November 1, 1986. The statute remains identical to its 1981 counterpart except that it provides that exemplary or punitive awards made pursuant to this title shall not exceed $100,000.00. Section 6.1 was contacted effective November 1, 1986. This section limits the State's liability to claims filed pursuant to § 6 in accord with the Governmental Torts Claims Act, 51 O.S. 1991 § 151 et seq. Title 85 O.S. 1981 § 7 provides:

"The district courts of the state shall have jurisdiction, for cause shown, to restrain violations of this act."

Section 7 was amended effective September 1, 1990. This statute remains identical to its 1981 counterpart except that it provides, "unless otherwise provided for by law," the district courts have jurisdiction.

7 The award included $75,000 in actual damages and $90,000 in punitive damages.

8 Truckstops did not argue in the trial court, in its petition in error or in its initial merit briefs that the trial court should have instructed the jury that employee misconduct discovered after the employee was terminated should be considered as it may or should lead to a reduction, or really limitation, on the allowable damages. Some courts have sanctioned such a reduction or limitation on the allowable damages. See e.g. Wallace v. Dunn Construction Co., Inc., 968 F.2d 1174 (11th Cir. 1992) (although evidence of employee misconduct discovered post-termination could not serve as legitimate cause for terminating employee and, consequently, as a ground in normal circumstances for denying all relief or defeating a claim by an employee as to liability of an employer, such evidence could legitimately be considered to limit backpay and eliminate prospective remedies of front pay, reinstatement or injunctive relief). It was the majority of the Court of Appeals that on its own, reversed the jury verdict because they felt a modified version of the instruction requested by Truckstops should have been given in so far as the after-acquired evidence of grounds for termination would have an effect on damages, i.e. it might have the effect of convincing the jury to reduce or limit damages. In essence, the majority of the Court of Appeals believed it was error for the trial court to fail to give an instruction no one requested. In doing so the Court of Appeals erred because the instruction requested by Truckstops did not accurately state the law (as we decide here) and in normal circumstances reversal of a jury verdict should only be predicated on refusal to give an instruction that is correct in both form and substance. It cannot generally be based on failure to give an instruction that would have to be modified to accurately reflect the law. Timmons v. Royal Globe Ins. Co., 653 P.2d 907, 918 (Okla. 1982). The exception to this general rule arises when a trial court wholly fails to instruct about an area covering a parties' theory of the case. Pacific Insurance Company of New York v. Frank, 452 P.2d 794 (Okla. 1969). In that Truckstops' theory before the trial court did not include the defense damages should merely be reduced or limited by virtue of the after-acquired evidence, but that all relief should be denied, the exception does not apply and it was error for the Court of Appeals to reverse and remand for new trial based on an issue concerning an instruction Truckstops did not argue embodied its theory of the case. Accordingly, in our view, failure of the trial court on its own to give an instruction no one requested was not fundamental error and it did not probably result in a miscarriage of justice or constitute a substantial violation of Truckstops' constitutional or statutory rights, which under 20 O.S. 1991 § 3001.1 , would be required to set aside this jury verdict. Thus, a decision on whether such after-acquired evidence should have the effect of reducing or limiting damages in this type of case will have to await another day. Such issue was not properly before the trial court or the Court of Appeals and such issue is not properly before us.

9 Title 85 O.S. 1991 § 5 provides:

"No person, firm, partnership or corporation may discharge an employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim, instituted or caused to be instituted, in good faith, any proceeding under the provisions of Title 85 of the Oklahoma Statutes, or has testified or is about to testify in any such proceeding. Provided no employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties."

Section 5 was amended effective September 1, 1992. The new statute does not allow an employer to discharge an employee during a period of temporary total disability solely on the basis of absence from work.

10 See discussion note 1, supra.

11 Cimarron Feeders v. Tri-County Elec. Coop., Inc., 818 P.2d 901, 902 (Okla. 1991); Messler v. Simmons Gun Specialties, Inc., 687 P.2d 121, 129 (Okla. 1984).

12 Smicklas v. Spitz, 846 P.2d 362, 367 (Okla. 1992); Sellars v. McCullough, 784 P.2d 1060, 1069 (Okla. 1990).

13 Phillips v. Williams, 608 P.2d 1131, 1135 (Okla. 1980) cert. denied, Shabazz v. Williams, 449 U.S. 860, 101 S. Ct. 162, 66 L. Ed. 2d 76 (1980) (Pronouncement on a federal law question by an inferior federal court is not necessarily binding on a State Supreme Court, but it is highly persuasive.). The question before us is not one of federal law, but rather one of state statutory law.

14 Post-termination discovery of employee misconduct has traditionally been no defense in employee's claim of discrimination. Shea, "Post-termination Discovery of Employee Misconduct: A New Defense in Employment Discrimination Litigation," 17 Empl.Rel.L.J. 103 (1991). Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 708 (10th Cir. 1988), involved falsification of company records; however, courts have applied Summers in contexts of employee misconduct in an employment discrimination action. Some courts have adopted Summers and allowed relief of liability if the employer could show that it would have discharged the employee had it known about the after-acquired evidence of employee misconduct. DeVoe v. Medi-Dyn, Inc., 782 F. Supp. 546, 552 (D.Kan. 1992); O'Day v. McDonnell Douglas Helicopter Co., 784 F. Supp. 1466, 1468 (D.Ariz. 1992). Other courts have merely limited the employee's possible remedies. Wallace v. Dunn Const. Co., Inc., 968 F.2d 1174, 1181-83 (11th Cir. 1992) (After-acquired evidence that employee lied on job application affects reinstatement or front pay, injunctions against further unlawful practices, and may reduce an award of attorney fees; it would not affect availability of declaratory relief for Title VII claims, nominal damages for hostile-environment sexual harassment claim, or liquidated damages.): Powers v. Chicago Transit Auth., 890 F.2d 1355, 1360 (7th Cir. 1989) (Circumstances surrounding questionable ethical conduct may be relevant to injunctive relief, even if not discovered until after the termination.).

Summers has been applied in cases involving omissions or misrepresentations on job applications as well. Johnson v. Honeywell Information Sys., Inc., 955 F.2d 409, 415 (6th Cir. 1992); Reed v. AMAX Coal Co., 971 F.2d 1295, 1298 (7th Cir. 1992). Some courts have denied the worker relief if either the employer would not have hired the worker absent the misrepresentation or if the employer would have discharged the worker if the misrepresentation had been discovered during employment. Washington v. Lake County, Ill., 762 F. Supp. 199, 202-203 (N.D.Ill. 1991); Churchman v. Pinkerton's Inc., 756 F. Supp. 515, 521 (D.Kan. 1991); Mathis v. Boeing Military Airplane Co., 719 F. Supp. 991, 994-95 (D.Kan. 1989). Others have only inquired whether the employee would be discharged had the misrepresentation been discovered during employment. Bonger v. American Water Works, 789 F. Supp. 1102, 1106-07 (D.Colo. 1992); O'Driscoll v. Hercules, Inc., 745 F. Supp. 656, 659 (D.Utah 1990). At least one court refused to apply a Summers rationale to preclude an employee who falsified his resume when applying for employment from establishment of a prima facie case for an action under the Age Discrimination in Employment Act. Smith v. General Scanning, Inc., 876 F.2d 1315, 1319 (7th Cir. 1989).

15 One purpose of civil rights employment discrimination is to achieve equality of employment opportunity to members of a constitutionally protected class or engaged in protected conduct. Wallace v. Dunn Const. Co., Inc., 968 F.2d 1174, 1180 (11th Cir. 1992).

16 Wright v. Fiber Indus., 60 N.C. App. 486, 299 S.E.2d 284, 287 (1983); Annot., "Recovery for Discharge from Employment in Retaliation for Filing Workers' Compensation Claim," 32 A.L.R.4th 1221, 1224-25 (1984).

17 See, Smith v. General Scanning, Inc., 876 F.2d 1315, 1317 (7th Cir. 1989) (Narrowly focusing on the plaintiff's initial burden distracts the district court from the real issue of the case - lawfulness of the termination.).

18 The 1981 version is unchanged from the 1991 version of 85 O.S. 1991 § 5 , see note 9, supra.

19 Other courts have similarly recognized the Thompson v. Medley Material Handling, Inc., 732 P.2d 461, 463 (Okla. 1987) and Buckner v. General Motors Corp., 760 P.2d 803, 810 (Okla. 1988) rationale. White v. American Airlines, Inc., 915 F.2d 1414, 1421 (10th Cir. 1990) (In order to fall within a public policy exception to the employment at-will doctrine, a discharge must be significantly motivated by the employee's refusal to violate established public policy.); Abrumson Assoc. v. Department of Emp. Serv., 596 A.2d 549, 553 (D.C.App. 1991) (An employee's informal reporting of work-related injuries as an attempt to claim compensation advances the purpose of workers' compensation by preventing retaliation by the employer.).

20 Mantha v. Liquid Carbonic Indus., 839 P.2d 200, 203 (Okla. App. 1992) was not approved for publication by this Court; and it has no precedential value pursuant to 20 O.S. 1991 § 30.5 .

21 Smicklas v. Spitz., see note 12 at 367, supra.

22 Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1297 (10th Cir. 1989); Dutsch v. Sea Ray Boats, Inc., 845 P.2d 187, 189 (Okla. 1992).

23 The jury instruction given on the issue of the establishment of a claim under Title 85 O.S. 1981 § 5 , see note 9, supra, provides:

"To establish a claim under Section 5 of the Workers' Compensation Act against the defendant, the burden of proof is upon the Plaintiff to establish the following by a preponderance of the evidence:

(1) Employment of Plaintiff by the Defendant;

(2) Plaintiff sustained an on-the-job injury;

(3)(a) Plaintiff received treatment for such injury under circumstances which put the Defendant employer on notice that treatment had been rendered for a work-related injury, or

(3)(b) Plaintiff in good faith instituted, or caused to be instituted, proceeding under Workers' Compensation Act (85 O.S. 1981 § 1 et. seq), and

(4) Plaintiff's consequential discharge from employment by Defendant, that is, Plaintiff must establish by a preponderance of evidence circumstances giving rise to an inference that discharge was significantly motivated by retaliatory exercise of statutory rights." (Emphasis supplied.)

24 See discussion note 2, supra.

25 Ankney v. Hall, 764 P.2d 153, 155 (Okla. 1988); Woodall v. Chandler Material Co., 716 P.2d 652, 654 (Okla. 1986).

26 Hart v. McVay, 832 P.2d 822, 824 (Okla. 1992); Eversole v. Oklahoma Hosp. Founders, 818 P.2d 456, 459 (Okla. 1991); Walker v. St. Louis-San Francisco Ry. Co., 646 P.2d 593, 597 (Okla. 1982).

27 See discussion, note 5, supra.

28 Central Plastics Co. v. Goodson, 537 P.2d 330, 335 (Okla. 1975).

29 Title 20 O.S. 1991 § 3001.1 provides:

"No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."