Kaufman v. Boismier , 25 Okla. 252 ( 1909 )

It is not essential for the disposition of this case to determine whether or not the affidavit was defective, for section 4313 (chapter 66, art. 8, § 115), Wilson's Rev. Ann. St. 1903, provides that the verification required by section 4312 shall not apply to a guardian defending for an infant or person of unsound mind. In this instance the answer was filed jointly by the administrator and the guardian, denying the execution of the instrument. The answer on the part of the guardian, though unsupported by an affidavit, properly raises the issue of non est falcum. The administrator, however, is a real party to the action (section 1692 [chapter 22, art. 9, § 216], Wilson's Rev. Ann. St. 1903), and verifies the pleadings as such party and not as agent of the intestate. Lawrence v. Schaefer, 19 Misc. Rep. 239, 42 N.Y. Supp. 992; Wilson v. Min-ne-chas, 40 Kan. 648, 20 P. 468. A verification of belief by an administrator is sufficient. Section 4315 (chapter 66, art 8, § 117), Wilson's Rev. Ann. St. 1903. It would seem, however, that when the plaintiff in error (plaintiff below) joined issue on the joint answer of the administrator and guardian by filing a reply and treated the issue of non est factum as properly raised, introducing evidence tending to show the execution of the instrument, and then offering it in evidence, that that waived any defect in the affidavit or verification. Hoopes v. Buford George Implement Co., 45 Kan. 549, 26 P. 34; Warner v.Warner, 11 Kan. 121; Johnson v. Douglass Co., 8 Okla. 594,58 P. 743.

2. The allegations of defendants' answer do not seem to be inconsistent. But see Covington v. Fisher, 22 Okla. 207,97 P. 615, and Clowers et al. v. Snowden et al., 21 Okla. 476,96 P. 596. The pleas of non est factum, failure of consideration, fraud, and incapacity of the intestate to contract, are therein pleaded as a defense. However, a reply was filed by the plaintiff in error (plaintiff below) and issue joined thereon without any objection, and, if such pleas were incompatible, the error was waived.

3. That the allegations as to fraud, being legal conclusions, are not sufficient unless supported by some specific averment as to fact, is a general rule. No objection having been taken by demurrer, motion or proper and timely objection to the introduction of evidence on such ground, but issue having been voluntarily joined thereon, the pleadings will be treated as having been amended to conform to the proof. Triple Tie Ben,Ass'n v. Wood, (Kan.) 98 P. 219.

4. It is insisted that the instructions as to the execution of the instrument were erroneous, as no issue was joined by proper affidavit raising such question; but, that contention having been heretofore determined against the plaintiff in error, this assignment also falls with it, and this applies equally to the instruction as to the issues of fraud and incapacity to contract.

5. Did the court err in instructing the jury as follows:

"You are instructed that, if you find and believe from the evidence that any one of the witnesses has testified falsely as to any material fact, then and in that event you will be warranted in disregarding the whole of the testimony of such witness, except such as may be corroborated by other witnesses who are credible, if you should find such to be the case. The fact that one witness testified one way concerning a transaction, and another witness testified directly opposite to the same transaction, does not necessarily mean that each is entitled to the same weight in your judgment. You are the ones to pass upon that question and say which you will believe, under all the facts and circumstances as disclosed here."

Is it erroneous, in that the court failed to require the jury to find that the witness had willfully, or intentionally, or with design to conceal or mislead, testified falsely as to some material fact? The cases of Childs v. State, 76 Ala. 93, Peoplev. Strong, 30 Cal. 151, Ivey v. State, 23 Ga. 576, Skipper v.State, 59 Ga. 65, and Barney v. Dudley et al., 40 Kan. 247, 19 P. 550, are cited by the plaintiff in error. The Kansas case contains an obiter expression tending to support such contention. And the following cases holding to the contrary are cited by the defendant in error: People v. Sprague, 53 Cal. 494;People v. Righetti, 66 Cal. 184, 4 P. 1063, 1185. It is not necessary, however, to determine that question, for, under the evidence, there seems to have been neither any unintentional misstatement nor the correction of testimony nor refreshing the memory of any witness, and this instruction could not have misled the jury. When a witness makes a false statement, he is presumed to intentionally and willfully do so, and unless there is testimony raising the question as to whether or not the false statement had been intentionally made, or in good faith though in error, there could be no well-founded hypothesis that the instruction could be prejudicial.

6. The question as to the misconduct of the attorney for the defendants in error by statements in his argument to the jury, neither objection nor exception being made thereto at the time, but raised for the first time in the motion for new trial, is not properly saved for review. 1 Thompson on Trials, § 962;Coalgate Company et al. v. Bross, ante, p. 244, 107 P. 425.

7. It has been held not only by this court, but also by the Supreme Court of the territory of Oklahoma, in numerous cases, that it will not disturb the verdict of a jury upon controverted questions of fact, and it is immaterial whether such questions arise from direct or circumstantial evidence. The jury had the opportunity of seeing the witnesses on the stand face to face and observing their manner, apparent fairness, and candor, or want of it. This is not available to this court in a re-examination of the evidence, and, where there is any reasonable evidence tending to support the verdict, it will not be disturbed here.

All the Justices concur.