Dunn v. Modern Foundry & MacHine Co. , 51 Okla. 465 ( 1915 )

This case comes from the county court of Garvin county. In that court the defendant in error, who will herein be designated as plaintiff, recovered judgment against the plaintiff in error, herein designated defendant. The action is brought to recover the value of certain machinery alleged to have been obtained by defendant from plaintiff. The original petition was amended, and the case finally determined upon the cause of action alleged in the amended petition. Counsel for defendant assign as error the overruling of a demurrer to the original petition; but, as that petition was superseded by the amendment, error in that particular, if such, would be harmless, and therefore will not be considered.

Sharp controversy was had between counsel as to several points in the record, and particularly as to the time and manner in which the amended petition was filed; but after a careful search and investigation of the record, as shown by the case-made, including the approvals and indorsements of the trial court, and under the wholesome and well-established rule that error is never presumed, but must be pointed out and clearly shown, we are unable to say that the defendant has been in any way prejudiced by the irregularities complained of, and will therefore pass them over, and consider the case from the record as presented, assisted by the briefs of counsel for both parties. It must be borne in mind that:

"Error is never presumed; it must always be shown; and if it is not affirmatively shown, it will be presumed that no error had been committed." (Grand Lodge A. O. U. W. v. Furman,6 Okla. 649, 52 P. 932; Same v. Edmonson, 6 Okla. 671,52 P. 939; County Com. v. Hubble, 8 Okla. 169, 56 P. 1058; Linsonv. Spaulding, 23 Okla. 254, 108 P. 747; Biard v.Laumann, 29 Okla. 140, 116 P. 796; Seaver v. Rulison,29 Okla. 128, 116 P. 802; Killough v. State, 6 Okla. Cr. 311,118 P. 620.)

"It is the general rule that all reasonable presumptions and intendments will be made in favor of the proceedings of a trial court." (Redman v. Territory, 2 Okla. 360, 37 P. 826.)

"Every presumption must be indulged in favor of the regularity of the proceedings in courts of record." (Funk v.Baker, 21 Okla. 402, 96 P. 608, 129 Am. St. Rep. 788.)

The second contention of defendant is under assignments 3 and 11, viz., that:

"The verdict and judgment are not supported by the evidence."

This contention cannot be sustained, for the reason that there is at least some evidence tending to support the verdict of the jury, and under the rule so well settled by this court the findings of the jury are conclusive.

"In the trial of a disputed question of fact in the district court, the jury are the sole judges of the weight and credibility of the various witnesses, and their decision of the question of fact will not be disturbed by this court, unless it is shown that they are in error as to such decision of fact, and this error must be clearly pointed out." (Ferguson v.Ragon, 15 Okla. 281, 81 P. 431.)

"A verdict will not be reviewed as to the facts on appeal, if there is evidence sufficient to sustain it." (A., T. S. F.Ry. Co. v. Calhoun, 18 Okla. 75, 89 P. 207, 11 Ann. Cas. 681.)

"Nor where the verdict is 'amply' sustained by the evidence." (Robinson v. Territory, 16 Okla. 241, 85 P. 451; Filson v.Territory, 11 Okla. 351, 67 P. 473.)

"Nor where the evidence 'strongly' tends to support the verdict." (Guthrie v. Harvey Lbr. Co., 9 Okla. 464,60 P. 247.)

"Nor where the verdict is supported by any evidence." (Fuller v. Territory, 2 Okla. Cr. 86, 99 P. 1098.)

After a careful consideration of the evidence, we are well satisfied, not only that there was sufficient evidence to sustain the verdict, but that it was clear and convincing, and fully supports the judgment of the court.

The third and last specific assignment of error, as set out in defendant's brief, is:

"The statement of the issues by the court were misleading and confusing to the jury, the instructions erroneous and misleading, and the requested instructions asked by the plaintiff in error should have been given."

This assignment, or rather these assignments, are entirely too indefinite, and counsel in no way complies with rule 15 of this court (38 Okla. viii, 137 Pac. x). If the statement of the issues of the court was misleading, and the instructions given by the court were erroneous and misleading, it was certainly the duty of the counsel to specify how and in what manner the jury was misled. This he does not do. We have gone over the instructions, and will admit that they are subject to some criticism; but we cannot say that they misled the jury — in fact, we feel confident that they did not, for the reason that the verdict of the jury is in full accord with, and clearly supported by, the evidence. In our opinion it is a most righteous and just verdict. The only instruction given in the brief under this assignment is as follows:

"If the jury find from the evidence in this case that the defendant represented to the plaintiff that he was a partner of R.A. Rogers, and that he would join in any contract for the purchase of the broom corn machinery declared upon herein that might be made between the plaintiff and said Rogers, and that after the execution of the contract entered into between the plaintiff and Rogers the plaintiff furnished the defendant with a copy of the same, to which he attached the name of J.W. Dunn, instead of his own name, and returned the same to the plaintiff, without informing the plaintiff that the name signed to said order was not the name of the defendant, and if the jury further finds that the representations made by the defendant to plaintiff, that Rogers was his partner, were false, and that the name signed to said order was not the name of the defendant, and if the jury further finds that the plaintiff believed the statement of the defendant that he was a partner of Rogers, and believed the name signed to said order was the name of the defendant, and that said plaintiff acted in good faith, as an ordinarily prudent and cautious business man would act, and relied upon such statements and representations on the part of the defendant, and parted with his property on the strength of such statement, and that it has been injured thereby, then it will be your duty to find for the plaintiff, and assess the amount of its recovery at the value of the property it was induced by such representations to part with, and did part with."

Taking into consideration the evidence and entire record, together with the other instructions and verdict, we believe the jury must have understood the meaning of this instruction; at least, it did not lead them away from the real issues in the case, nor induce them to return a verdict contrary to the evidence, nor against the right and justice of the case.

"The Supreme Court is required by statute to disregard any error in the pleadings or proceedings which does not affect the substantial rights of the adverse party appealing." (St. L. S. F. R. Co. v. Houston, 27 Okla. 719, 117 P. 184.)

"Proceedings," as here used, includes instructions to the jury.

"On appeal this court will render judgment without regard to errors or defects which are purely technical, and will not consider exceptions which do not affect the substantial rights of the parties." (Boggs v. U.S., 10 Okla. 424, 63 P. 969.)

"A judgment will not be reversed on account of errors committed upon the trial which do not affect the substantial rights of the party appealing." (Martin v. C., R.I. P. Ry.Co., 7 Okla. 452, 54 P. 696; Alton Dawson Mer. Co. v. Staten,19 Okla. 252, 91 P. 892.)

The controversy of counsel over the amendment of the petition seems to have been settled by the trial court, and the matter of amendment of pleadings is entirely within the discretion of that court, so long as it is permitted in furtherance of justice. No one was wrongfully prejudiced by the ruling of the lower court in that particular.

We are fully satisfied that full and complete justice has been done in this case. It should be affirmed.

By the Court: It is so ordered.

ON PETITION FOR REHEARING.