while the said Sims knew that said représentations were false and fraudulent, and with the intent to deceive the confidence bestowed upon him by the said defendant and his said associates, as a means to accomplish his false purpose, did induce the associates of this defendant to organize a company known as the Hunter Mining Company, and case." It may have been an oversight on the part of plaintiff to so testify. That we cannot tell, but it is in evidence and no effort was made to correct the statement or withdraw it from the consideration of the jury. Certainly it was proper to permit counsel to show it in his argument to the jury, just as any other fact or circumstance in the case might be shown. As was said hereto-to place in the hands of the said Sims $18,000, fore, the question of assignment before ma- which the said Sims falsely and fraudulently turity was one of the important and con- represented would be necessary to purchase trolling questions of the case, and for the the said mining property and the further reasons herein before stated, the court will sum of $2,000, which the said Sims agreed not interfere with the finding of the jury on to use in the development of the mine; that a material question of fact, especially when in truth and in fact said representations so the testimony reasonably tends to support made by the said Sims were false and unthe findings as it does in this case. The jury true, and known by him to be false and unby its general verdict for the defendant true when made, and were made by the said found that the note had been assigned after | Sims for the express purpose of deceiving maturity, or with knowledge of the equities defendant, and that defendant in consideraMiller had against Sims, and, this being tion thereof was deceived, and did rely upon true, then the defense of fraud and deceit said false representations, and was thereby were available to Miller, who in his answer induced to and did execute the note sued on. had pleaded that prior to the execution of [2] This stated a good defense to the note, the note sued on the said Bruce Sims had provided the jury first found that the note resided in Paris, Ill., and had resided there had been assigned after maturity, or with for many years, and had been well and fa- knowledge to Edwards of the equities, which vorably known to the defendant as an up- Miller claimed, against the obligation. It is right, honest, and fair-dealing citizen; that a settled rule in this court that a general shortly before the date of the note sued on verdict or finding includes the finding of said Sims came to defendant and others in all facts necessary to constitute the claims Paris and proposed the organization of a of the parties in whose behalf the judgment mining company, and represented to defend- was rendered, or in other words, it is a ant that he was an expert in mines and min- finding on all the controverted facts in faing and mining properties, and that he had vor of one party and against the other. De recently spent much time in the study of Vitt v. City of El Reno, 28 Okl. 315, 114 Pac. mines and mining in the lead and zinc fields 253; First Nat'l Bank v. Arnold, 28 Okl. 49, in Missouri, and was thoroughly conversant 113 Pac. 719, and cases cited. with that field and the value of mines and mining properties there, and the ores and methods of operation peculiar to that district, and that said Bruce Sims, pursuant to the design to organize a mining company for the purpose of taking property in said field, falsely and fraudulently represented to the defendant and his associates that he (Sims) had an option to purchase a valuable piece of mining property near Joplin for $18,000, which property he falsely represented to be well worth said sum; that the said Sims falsely and fraudulently represented that there was a workable shaft on said property, and that by the expenditure of $200 in the development of said mine the same could be put on a paying basis and earn a handsome profit in 30 days; that owing to the distance of the defendant and his associates from the proposed mining field it was impracticable and well nigh impossible for them to visit said field where the mine was alleged to be located; that they were not practical mining men and had no knowledge of mining, but owing to the representations made by Sims that he was a practical mining expert and that he had just come from said field, this defendant and his associates relied upon and believed in the ability of the said Sims, and the representations he then and there made, and by virtue thereof and We are therefore warranted in saying that the jury found that the note had been transferred after maturity, or, if before, then with knowledge of the equities existing between the parties, and that therefore Miller was entitled to his defense of fraud and deceit, etc., as pleaded in his answer. [3] This plea of the defendant in his answer, and issue joined thereon, by reply of plaintiff, raised, squarely, the question of fraud and deceit, which was, with other questions of fact, properly submitted to the jury, under the instructions of the court, which were not objected to by the plaintiff in error; and where there is evidence tending reasonably to support the verdict of the jury, this court will not disturb such finding on appeal, nor search the evidence to determine where the weight lies. Hobbs v. Smith and other cases cited, supra. See, also, in support of such defense the following cases: Gilpin v. Netograph Machine Co. et al., 25 Okl. 408, 108 Pac. 382, 29 L. R. A. (N. S.) 477; Clark et al. v. O'Toole et al., 20 Okl. 319, 94 Pac. 547; Prescott & Farrar v. Brown, 120 Pac. 991, not yet officially reported. Finding no error in the record, the judgment of the county court of Oklahoma county should be affirmed. PER CURIAM. Adopted in whole. ST. LOUIS & S. F. R. CO. v. YOUNG. of May, 1907, plaintiff shipped over defendant's railroad from Vernon, Tex., to Snyder, (Supreme Court of Oklahoma. Jan. 9, 1912.) Okl., a distance of 40 or 50 miles, 35 head of (Syllabus by the Court.) 1. EVIDENCE (§ 543*) — OPINION EVIDENCE – VALUE OF LIVE STOCK. One witness testified that he was a farmer; had handled cattle for 18 years; had experience in buying and selling and estimating value of cattle; and knew the value of cattle such as those in question; and testified that the cattle in question were worth from $50 to $75 per head. Another testified that he was a stockman, and had handled cattle for 13 years, and had experience in buying and selling, and that he examined the cattle in question after they were injured, and that had it not been for the injuries they would have been worth from $40 to $65 per head. Held that, while perhaps not the best class of evidence obtainable on the subject, yet it was competent, and no error was committed in allowing said, witnesses to testify; the weight and sufficiency of such evidence together with the credibility of the witnesses being matters to be determined by the jury under proper instructions by the court. cattle. The contract of shipment was in writing, and is attached to plaintiff's petition as an exhibit and made a part thereof. Therein the agreed value of said cattle was fixed at $30 per head, and the reasonable value of the entire shipment at $1,050. It also appears that defendant agreed to safely transport said cattle to the agreed destination in consideration of a stated price, which had theretofore been paid the railroad company by the plaintiff; that defendant did not comply with its contract, but was careless and negligent in the handling of said cattle, and as a result thereof eight head of said shipment died, four dying the day following their arrival at Snyder, and four. others within a short period of time thereafter; that by reason of the death of the eight head of cattle plaintiff was damaged $240; that one cow was damaged $25; that all the others were more or less injured, and that plaintiff's time in caring for and look [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 23562-2368; Dec. Dig. § 543.*1 2. APPEAL AND ERROR (§ 1001*)-REVIEW-ing after said cattle, occasioned by the neg SUFFICIENCY OF EVIDENCE. Where there is some evidence tending reasonably to support the allegations of the petition, the issues should be submitted to the jury under proper instructions, and in such case the verdict will not be disturbed on ap peal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3928-3934; Dec. Dig. 8 1001.*] 3. CARRIERS (8 218*)-LIVE STOCK SHIPMENT -NOTICE OF INJURY. A provision in a contract of shipment requiring as a condition precedent to a recovery of damages to live stock, that the shipper will give notice in writing of the claim therefor, to some general officer or station agent, at the nearest station, before such stock is removed, or before such stock is allowed to be mingled with other stock, such notice to be served within one day after delivery of stock at destination, is a reasonable and valid provision, and will be upheld by the courts, but a substantial compliance with the terms of such provision will be sufficient. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 938; Dec. Dig. § 218.*] Commissioners' Opinion, Division No. 1. Error from Kiowa County Court; J. W. Mansell, Judge. ligence of the railroad company, was of the reasonable value of $100-making a total of $635, for which plaintiff prayed judgment. Defendant answered by general denial, and also alleged that by virtue of the contract of shipment set up in plaintiff's petition as Exhibit A, plaintiff agreed to give a written notice to the company within one day after the delivery of the cattle at the point of destination, and before the cattle were removed from the place of destination, showing the extent and character of any damages which they may have received, and that no such notice had been given, and the company by reason of such failure was not liable for any damages; and as a further defense the railroad company alleged that by reason of a mistake of one of its agents there had been an undercharge on the freight of said car in the sum of $23, for which it prayed judgment against plaintiff. Plaintiff replied by general denial, and further alleged full compliance with the terms of the contract set up in his petition. Trial was had to a jury, and a verdict was returned in favor of the plaintiff in the sum of $487. Motion for new trial was made, overruled, and judgment entered on the verdict; time was given to make and serve a case for this Action by T. H. Young against the St. Louis & San Francisco Railroad Company, to recover damages on account of negligence in shipping cattle. Judgment for the plain-court; and the railroad company prosecutes tiff. Defendant brings error. Affirmed. this appeal to reverse said judgment. O. B. Rie This action was begun in the county court W. F. Evans, R. A. Kleinschmidt, and J. of Kiowa county on the 25th day of Febru- H. Grant, for plaintiff in error. ary, 1909, by T. H. Young, hereinafter desig- gel, for defendant in error. nated as plaintiff, against the St. Louis & San Francisco Railroad Company, a corporation, to recover $635, as damages for alleged injuries to certain live stock, shipped over its road. It appears that on the 21st day ROBERTSON, C. (after stating the facts as above). Plaintiff in error, hereinafter called the railroad company, relies upon five assignments of error for reversal, the first being: "The court erred in admitting incompetent, irrelevant, and immaterial testimony in said cause, over the objections of the defendant." The record shows, without question, that the cattle were delivered to the railroad company, at Vernon, Tex., in good condition. That they left there about 9 o'clock a. m. and arrived at Snyder about noon of the same day; that while the car was standing stationary on the main track at Frederick, the engine being engaged in switching, a freight car escaped from the train crew and ran wild down the track and struck the train, which contained the car occupied by the cattle, with terrific force, knocking the cattle down and injuring them in various ways, such as, "horns knocked off, shoulders out of place, breasts bruised, ribs broken, hind parts crippled, legs dragging, briskets mashed, abrasions of the skin," etc. (Record, pp. 27, 28, 29.) The evidence further discloses that by reason of such injuries all the cattle (35 head) were more or less injured, while 8 head died, and 1 cow lost a calf. The fact of the injury, as well as the reasons thereof, are undisputed. [1] It became necessary for plaintiff to prove the value of the cattle, both before and after the accident, and for that purpose T. H. Young, the plaintiff, testified that he was a farmer, and had worked with cattle on a range for 18 years, and had experience in buying and selling cattle and estimating their value, and knew the value of the cattle in question; that they were worth from $50 to $75 per head before they were injured; that eight head died as a result of the injuries so received, making as to them, a total loss; that all were badly bruised, and several permanently crippled. He testified with great particularity as to the nature and character of the injuries. Mr. Ferrell, a witness for the plaintiff testified that he was a stockman, and had handled cattle for 13 years, and was experienced in the buying, selling, and handling of the same; that he examined the cattle in question after the injuries, and that had it not been for such injuries the cattle would be worth from $40 to $65 per head, but, as delivered, 12 head were worth not to exceed $5 each, and the others not to exceed $15 per head. Another witness, J. W. Chitwood, testified that he lived at Vernon, Tex., and was engaged in handling Jersey cows such as these in question; that he had seen 12 head of the cattle in question, and knew that they were worth from $30 to $50 per head, at Vernon, Tex. The railroad company complains that the testimony of the witness Chitwood should be stricken because he testified of the value of the cattle at Vernon, Tex., and not at Snyder. This phase of the case was properly cared for by the court in his instructions to the jury, in which they were told that in determining plaintiff's damage they should not consider any evidence as to the market value of the cattle in question at Vernon, Tex., but that they might consider the physical condition of said cattle when they were received by the defendant at Vernon, Tex., and there was evidence introduced showing the condition of the cattle at the time they were delivered to the company at Vernon, Tex. The railroad company did not attempt seriously to contradict this testimony as to the value of the cattle, but relied seemingly upon the incompetency of the witnesses to testify as to value. Our courts have passed upon the admissibility of this character of testimony, and have held that such witnesses as those who testified were competent and that such testimony was admissible. In C., O. & G. R. R. Co. v. Deperade, 12 Okl. 367, 71 Pac. 629, it was held that a person who had been a farmer for 20 years was competent to testify as to the value of animals killed by the railroad company, and that the weight of evidence being a matter to be determined by the jury, it was for the jury to give the proper credit to the testimony of the witness. See, also, Filson v. Territory, 11 Okl. 351, 67 Pac. 473, and cases therein cited; Lawson on Expert and Opinion Evidence, p. 15. In this class of cases the qualification of witnesses is largely a matter of discretion for the trial court. Without a doubt there was some competent evidence before the jury on the subject of the value of the cattle before and after the injuries complained of. The court covered this phase of the case by fair and comprehensive instructions. The evidence as to the value and damages, while perhaps not as strong and conclusive as it might have been, presented controverted questions of fact which were submitted to the jury under proper instructions, and we cannot say there was no competent evidence before the jury on the subject. There was some, without a doubt. [2] In such case it is proper to submit the issue to a jury, and it is not the policy of this court to disturb the verdict on appeal. Edwards v. Miller, 120 Pac. 996 (not yet officially reported); Hobbs v. Smith, 27 Okl. 830, 115 Pac. 347, 34 L. R. A. (N. S.) 697; Harrill v. Parkinson, 27 Okl. 528, 112 Pac. 970; Ellison v. Bank, 27 Okl. 782, 117 Pac. 199. The next assignment of error to be noticed is that the court erred in overruling defendant's demurrer to plaintiff's evidence. The main point relied upon by the railroad company under this assignment is that there was no evidence offered showing a compliance with the terms of the written contract of shipment, in so far as a written notice for damages having been presented to the company within one day after the arrival of the stock at its destination. That such a provision in a contract of this character is reasonable and binding upon the parties we do not think there can be any question, but we do not agree with the conclusion of counsel for the railroad company that there was no compliance with the terms of the The next assignment of error complains of the refusal of the trial court to give a certain instruction. No effort has been made to comply with rule 25 of this court (95 Pac. viii), in this connection and therefore it will not be considered. Nor is there any argument made or authorities cited in support of this alleged error; hence the company is deemed to have waived its right to have the same considered here. The next assignment of error deals with the ruling of the court in refusing to grant a new trial and the same reasons, heretofore assigned and considered, are urged by counsel in this behalf. The jury found, as shown. by its verdict, for the plaintiff, in the sum of $510, and for the defendant on its counterclaim in the sum of $23, making a total of $487 for plaintiff. The verdict was right. We find no error in the record of sufficient importance to warrant an interference; on the contrary, we are satisfied that substantial justice has been done, and that the judgment of the county court of Kiowa county, should, in all things, be affirmed. contract in this particular. The evidence | tial compliance with its exact terms was shows that the plaintiff, as soon as the ship- shown by plaintiff. ment arrived at Snyder, unloaded the cattle in the company's stock pen, and immediately went to the depot and informed the agent of the damage done the cattle, and told him that he wanted to put in a claim for damages; that the agent said, "All right"; that the agent in company with plaintiff, and other witnesses returned to the stock pen and examined the cattle; and that they talked about what it would be and finally decided upon the amount of damages plaintiff claimed; that the agent took down the number and description of each animal and the nature of the injury, together with the amount of the damages, making an itemized statement; that said statement was in writing; that the agent retained the same. In corroboration of this testimony the witness Hellwig testified that on the day of the arrival of the cattle, to wit: May 21, 1907, he was present at the stock pen, and overheard a conversation between Mr. Young and the agent in which the plaintiff, Mr. Young, said that he would not accept those cattle in a mangled condition, and that he claimed damages and insisted on his claim being filed before he would accept the cattle; that he saw the agent make a list of the cattle and their condition at the time, at Mr. Young's request; that said list was in writing; that the agent had it in his hand and walked to the depot with it; that he saw the paper and what it contained; that he knew it was a claim for damages in the shipment of stock; that he accompanied the agent to the depot; that the agent still had the claim in his hand at the depot; that he conversed with the agent with reference to what he was going to do with it, and that the agent said he "would send it to the company; that it was undoubtedly a just and meritorious claim." PER CURIAM. Adopted in whole. BROWN & BRIDGEMAN v. WESTERN CASKET CO. (Supreme Court of Oklahoma. Nov. 14, 1911.) (Syllabus by the Court.) 1. APPEAL AND ERROR (§ 281*) REVIEW OBJECTIONS NOT MADE BELOW-MOTION FOR NEW TRIAL. Errors occurring during the trial of a cause will not be reviewed in this court unless first presented to the trial court, by a motion for a new trial, and an opportunity there given to correct the same. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661; Dec. Dig. § 281.*] 2. APPEAL AND ERROR (§ 291*) - REVIEW MOTION FOR NEW TRIAL-NECESSITY. In a case where both parties introduced evidence and a motion to direct a verdict was interposed and sustained, in order that alleged errors occurring at the trial may be reviewed in this court it is indispensably necessary that the same be presented to the trial court by a motion for a new trial, and where no such motion has been filed this court will not review the alleged errors. This, without doubt, is a substantial compliance with the terms of the contract complained of by the railroad company. The only purpose of such a provision in a contract is to compel the shippers to immediately inform the company of alleged damages, in order that proper steps may be taken to protect the parties and to prevent fraud. The reason for this rule has been fully met and complied with in the present case, and surely no reasonable person could expect a more full and complete compliance with the requirements of the contract than was performed by the plaintiff in the case at bar, and there is no merit in the contention of the railroad company in this particular, but there was, to say the least, a substantial Where issues of fact are presented by the compliance by the plaintiff, with the re- pleadings and supported by evidence and the quirements of the contract of shipment. facts are disputed, or the credibility of witThere was no effort, on the part of any one, nesses is drawn in question, or a material fact is left in doubt, or there are inferences to be to modify, amend or waive the provisions of drawn from facts proven, the case, under propthe contract. On the contrary a substan-er instruction, should be submitted to the jury, [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1707-1712; Dec. Dig. 8 291.*] 3. TRIAL (§ 143*)-DIRECTING VERDICT-CONFLICTING EVIDENCE. and it is reversible error in such a case to sustain a motion to direct a verdict. [Ed. Note. For other cases, see Trial, Cent. Dig. 342; Dec. Dig. § 143.*] Commissioners' Opinion, Division No. 1. Error from District Court, Carter county; Stilwell H. Russell, Judge. Action by the Western Casket Company against Brown & Bridgeman to recover $58.85, alleged to be due on open account. Judgment for plaintiff. Defendant brings error. Reversed and remanded. Apple & Franklin and Sigler & Howard, for plaintiff in error. Ledbetter & Bledsoe, for defendant in error. ROBERTSON, C. We are met at the threshold of this case with a motion to dismiss the appeal, interposed by the defendant in error, the grounds being as follows: used by counsel for defendant in error. The motion was sustained and the jury was instructed by the trial court to return a verdict for the plaintiff, and such a verdict was returned by the jury, and a judgment rendered in accordance therewith. [1, 2] It is a principle so well settled in this state that citation of authority is almost unnecessary that errors occurring on the trial of the cause will not be reviewed in this court unless first presented to the trial court, and an opportunity there given to correct the same, by a motion for new trial. Kuhlman v. Williams, 1 Okl. 136, 28 Pac. 867; De Berry v. Smith, 2 Okl. 1, 35 Pac. 578; Carson v. Butt, 4 Okl. 133, 46 Pac. 596; Hardwick v. Atkinson, 8 Okl. 608, 58 Pac. 747; Beperstein v. Territory, 8 Okl. 467, 58 Pac. 641; Boyd v. Bryan, 11 Okl. 56, 65 Pac. 940; Osborn & Co. v. Case, 11 Okl. 479, 69 Pac. 263; Menten v. Shuttee, 11 Okl. 381, 67 Pac. 478; S. W. Cottonseed Oil Co. v. Bank, 12 Okl. 168, 70 Pac. 944. A motion for a new trial in the case at bar was absolutely necessary in order to secure either in the trial court or this court a review of the errors occurring at the trial, and they could not, by any other "(1) That this court is without jurisdiction to hear and decide this case for the reason that judgment was rendered in the district | Pac. 205; Glaser v. Glaser, 13 Okl. 389, 74 court of Carter county, Okl., in favor of the plaintiff (defendant in error) on the 27th day of May, 1909, and the case-made was not prepared and served on plaintiff (defendant in error) within three days from the date of said judgment, and no order was made with-means, be reviewed in this court. The Kanin said time extending the time in which defendant (plaintiff in error) should prepare and serve a case-made for appeal to the Supreme Court of Oklahoma. "(2) The motion for a new trial, filed on May 28, 1909, and which was overruled July 1, 1909, did not operate to extend the time in which the defendant (plaintiff in error) could prepare and serve a case-made for the reason that the trial court at the conclusion of the testimony of plaintiff and defendant sustained a demurrer to the evidence of defendant (plaintiff in error) and upon motion of plaintiff (defendant in error) instructed the jury to return a verdict for the plaintiff (defendant in error). "(3) A motion for a new trial was not necessary for the reason that the ruling of the court presented only questions of law and there were no facts to be reviewed which required a motion for a new trial." The motion must be overruled. The record plainly shows, and it is admitted by counsel for the defendant in error in the above motion, that at the trial of the cause in the court below, witnesses were examined by both plaintiff and defendant, and a jury was impaneled and heard the evidence, and at the close of defendant's evidence, plaintiff offered, what its counsel is pleased to call, a demurrer to the evidence (Record, p. 39), which was sustained by the court. This so-called demurrer was nothing more or less than a request for a peremptory instruction to direct a verdict in favor of plaintiff and against defendant, and was not a demurrer to the evidence in the sense that the term is sas cases which counsel for defendant in error relies upon to sustain his motion are not in point. In those cases, especially in the case of Wagoner v. A., T. & S. F. Ry. Co., 73 Kan. 283, 85 Pac. 299, where a demurrer to plaintiff's evidence had been sustained, the Kansas court held that in such case no motion for new trial was necessary. Even if the case at bar was parallel to that case, which it is not, we would not be disposed to follow the ruling of that court, for our statute provides, and this court has uniformly held that, in order to secure in the Supreme Court an examination of errors occurring at the trial, a motion for a new trial is indispensably necessary. The only other assignment of error in the brief of plaintiff in error that we need to consider is the one charging error on the part of the trial court in taking the case from the jury. We have examined the record, and find that the court erred in directing a verdict for the defendant in error, for the reason that there was conflicting testimony offered on the issues involved, and the defendant in error had a right to have the issues of fact decided by the verdict of the jury. We find that this was an action to collect money due on open account. The defendants below answered and admitted the account as correct, but alleged, by way of set-off and counterclaim, that on the day the purchase was made the agent of the defendant in error, W. E. Miller, who sold the goods to plaintiffs in error, made a banker's draft on defendant in error in the sum of $50, and secured the in For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |