Diamond Cattle Co. v. Clark

• Decision Date: 23 December 1937
• Docket Number: 1994
• Parties: DIAMOND CATTLE CO. v. CLARK
• Court: Wyoming Supreme Court

74 P.2d 857

52 Wyo. 265

DIAMOND CATTLE CO. v. CLARK

No. 1994

Supreme Court of Wyoming

December 23, 1937

Rehearing denied March 22, 1938.

ERROR to the District Court, Carbon County; V. J. TIDBALL, Judge.

Action by Neil Clark against the Diamond Cattle Company. To review a judgment for plaintiff, defendant brings error.

Case remanded to modify judgment.

For the plaintiff in error there was a brief by Corthell, McCollough and Corthell of Laramie, Wyoming, and oral argument by N. E Corthell.

The action was one in the nature of deceit. The court erred in refusing defendant's requested instructions as to the nature or elements of plaintiff's cause of action, or the material allegations which the jury were to consider and determine. Plaintiff's petition was insufficient to state an action of deceit. A concise statement of the essential facts in an action for deceit is found in 26 C. J. 1062. The following cases affirm this doctrine. Colo. Springs v Wight, (Colo.) 98 P. 820; Byard v. Holmes, 34 N. J. L. 296; Cobb v. Peters, (Ore.) 136 P. 622; Raser v. Moomaw, 139 P. 622; Derry v. Peek, 14 A. C. 337. The only material variation from this statement will be found in states where the doctrine is affected by statute. Tangible facts must be alleged. Smith v Stone, 21 Wyo. 62. Special damages were insufficiently pleaded. Huylers v. Hotel Co., 6 F.2d 404; Lumber Co. v. O'Neal, 160 F. 596; Western Union v. Hearne, (Tex. Civ. App.) 26 S.W. 478; Metal Co. v. Tank Car Co., (Del.) 123 A. 131; McCready v Bullis, (Cal.) 210 P. 638. It was not alleged that plaintiff was evicted or ousted. Globe Refining Co. v. Oil Company, 190 U.S. 540, 545; Mitchell v. Clark, (Cal.) 11 P. 882; Bradford v. R. Co., 195 U.S. 243. There was a failure of proof of deceit. Kahn v. Ins. Co., 4 Wyo. 419; National Bank v. Ford, 30 Wyo. 110; Worth v. Worth, 48 Wyo. 441; Coffman v. Christensen, (Minn.) 113 N.W. 1064; Hampton v. Webster, (Nebr.) 77 N.W. 50; Lepay v. Anderson, (Wis.) 125 N.W. 433. Suspicion or conjecture cannot take the place of proper proof. Millard v. Hall, (R. I.) 135 A. 855; Banker v. Miller, 7 F.2d 293; James v. Company, (Cal.) 36 P. 401; Woulfe v. R. Co., (Kan.) 223 P. 817; Holliday v. Company, (R. I.) 107 A. 86. Positive and uncontradicted evidence cannot be disregarded by either court or jury. Chicago Trust Co. v. Tr. Co., (Ill.) 144 N.E. 185; DeKalb Co. v. Power Company, (Tenn.) 67 S.W. 555; James v. Truck Company, (Cal.) 36 P. 401; State v. Banker, 160 N. J. L. 339; Tarver v. Lindsey, (Miss.) 137 S. 93; Barnes v. Hampton, (Va.) 141 S.E. 836; Shoe Company v. Hitchens, (Ky.) 22 S.W.2d 444; Alabama Title & Tr. Co. v. Millsap, 71 F.2d 518. The true theory of the case was obscured by confusing and contradictory instructions. Reference is made to instructions numbered 1, 2, 3, 4, 6, 12, 13, 15, 17, 18, 19 and 20. Plaintiff's alleged losses were shown to be due to unusual and unanticipated storms. There was no competent evidence that the damages claimed were the proximate natural result of any action of the defendant. When the evidence to a fact is positive and not disputed, it ought to be taken as an established fact and the charge of the court should proceed upon this basis. Kahn v. Traders Ins. Co., 4 Wyo. 419; Boswell v. First National Bank, 16 Wyo. 161; Calkins v. Wyo., 25 Wyo. 409; Tisthammer v. U. P. R. R. Co., 41 Wyo. 382. Pertinent illustrations of this doctrine are found in the following cases. R. R. Co. v. Chamberlain, 288 U.S. 333; Pollock v. Pollock, 71 N.Y. 137; Laidlow v. Sage, (N. Y.) 52 N.E. 679; Parkinson v. Kortum, (Iowa) 127 N.W. 208. The relation of proximate cause and effect is fully discussed in 17 C. J. 741, 750. The error and confusion in this case arose through the mistaken application of the general rule to the facts established. Cole v. Loan Co., 124 F. 113; Teis v. Mining Co., 158 F. 260; Mitchell v. Rochester Ry. Co., (N. Y.) 45 N.E. 354; Hoag v. R. R. Co., 85 Pa. 293; Ry. Co. v. Trich, (Pa.) 11 A. 627; Pelke v. Ry. Co., (Dak.) 41 N.W. 669; Texas Co. v. Mercer, (Tex.) 90 S.W.2d 557; Utilities Co. v. Dunnally, (Tex.) 10 S.W.2d 391; Ry. Co. v. Hasty, (Okla.) 233 P. 218; State v. Dahl, (Wis.) 162 N.W. 186; Sharp v. Powell, (1872) L. R. 7 C. P. 253. Under the general rule, liability is limited to cases where the course of evidence is the normal, usual, ordinary course according to common experience. Vedder v. Hildreth, 2 Wis. 427; Sabine v. Johnson, 35 Wis. 185; Grocer Co. v. Crandall, (Ark.) 199 S.W. 551; Morrison v. Davis, 20 Pa. St. 175; Amies v. Stevens, Stra. 128, 93 Eng. Repr. 428. The following cases illustrate the application of the general rule; 17 C. J. 767; Woolen Mills v. Greer, 49 Ia. 490; City of Crete v. Childs, (Nebr.) 9 N.W. 55; Story v. Robinson, 32 Cal. 206; Cannon v. Or. Moline Plow Co., (Wash.) 197 P. 39. Plaintiff followed the theory that the notice of termination of the lease was the natural and proximate cause of the losses, rather than the storm, which was the proximate moving cause. In the absence of such proof, there was no question to submit to the jury. Humphrey v. Hoppe, (Me.) 145 A. 748; Gausman v. Pearson Co., 131 A. 247. The issues presented were shifting, obscure and uncertain. The element of good faith with reference to a sale which will support notice of cancellation of the lease is illustrated in the following cases: Molzon v. Carroll, (Conn.) 100 A. 1057; Glenn v. Inouye, (Cal.) 216 P. 418; Yontz v. McDowell, (Ky.) 247 S.W. 948; Luse v. Elliott, (Ia.) 213 N.W. 410; Lumbers v. Furniture Co., 30 Can. S.Ct. 55. One of the most puzzling elements injected into this case for the first time is found at the end of Instruction 3, which converted an action for deceit into one for breach of contract. Brook v. Cole, (Ga.) 33 S.E. 849; Cobb v. Peters, 68 Ore. 14, 136 P. 656; Griggs v. Meek, 37 Wyo. 282. Errors relating to the admission of incompetent or immaterial evidence are assigned in our motion for a new trial, which was overruled. The record presents a state of confusion as to whether plaintiff predicated his damages upon the storm or upon sales or to some unexplained cause. The burden rested upon plaintiff to prove the nature of his damages with certainty. Quinlan v. Jones, 27 Wyo. 410; Rhodes v. Baird, 16 O. S. 573; Carman v. Mont. Ry. Co., (Mont.) 79 P. 690 and cases cited. Instruction 14 seems to have left the question of interpretation of the lease in some respect to the jury, whereas it was solely a question of law for the court. Bosler v. Coble, 14 Wyo. 423; Tribble v. Collins, (Colo.) 172 P. 421; Power Company v. Gibson Lumber Co., (Colo.) 176 P. 318. The instructions refused clearly defined the issues to be determined. The obligation of the court to give such or similar instructions in the case has often been affirmed by this court. Ry. Co. v. Jarvi, 3 Wyo. 375; Plaster Co. v. Westman, 20 Wyo. 143; Taylor v. Stockwell, 22 Wyo. 492; McClintock v. Ayers, (Wyo.) 253 P. 658; Justice v. Brock, 21 Wyo. 281; Fed. Land Bank v. Sells, 40 Wyo. 498. The petition lacked definiteness and clarity in stating the elements of deceit or that the loss subsequent to the termination of the lease was anticipated or foreseeable at the time, or what was done by the plaintiff to avoid loss. There was a failure of proof that the notice of sale was false, or given in bad faith, or that the losses claimed were proximate or conseqential in character, and especially that the defendant had knowledge of the conditions or any possibility of the anticipated loss. The instructions given, while clearly stating some of the controlling principles of law, were wholly lacking in others, and especially those requested by the defendant and refused. The chief item of loss--that realized on the sale of the cattle--was left unallocated and suspended uncertainty, between the storm and the stress of independent conduct and dealings of Clark and Goldberg.

For the defendant in error, there was a brief and oral argument by J. R. Armstrong of Rawlins.

Defendant in error has filed a motion herein to dismiss the petition in error and the proceedings in error, on the ground that the petition in error fails to describe the cause wherein the errors are alleged to have occurred, or the judgment or final order sought to be reviewed, as is required by Rule 10 of this court. The petition in error was insufficient. Fitzpatrick v. Rogan, (Wyo.) 197 P. 565; Board of Commissioners v. Shaffner, (Wyo.) 68 P. 14; Hall Oil Co. v. Barquin, (Wyo.) 201 P. 160; Fryer v Campbell, (Wyo.) 28 P.2d 475. The requirement that the petition in error be filed is jurisdictional. North Laramie Land Co. v. Hoffman, (Wyo.) 184 P. 226; Sterling v. Boucher, (Okla.) 190 P. 1090; Smith v. Montgomery, (Tex. Civ. App.) 259 S.W. 1007; Sec. 89-4805, R. S. 1931. A petition in error failing to describe the judgment or final order, or the cause in which entered, with reasonable certainty, is insufficient to confer jurisdiction on the appellate court. Bank v. State Bank, (Okla.) 140 P. 1150. The requirement that the petition in error describe the cause and the judgment or final order, is found in the rules of the court, and not in the statute, but the rules of the court are as binding on the court and parties as statutory enactments. Sec. 31-107, R. S. 1931; Cronkhite v. Bothwell, 3 Wyo. 739; Robertson v. Shorow, (Wyo.) 69 P. 1; Bank of Chadron v. Anderson, (Wyo.) 48 P. 197. The refusal of the trial court to direct a verdict or to instruct as to the sufficiency of the evidence, or granting a motion for judgment, notwithstanding the verdict and denying a new trial, are not appealable orders. Hahn v. Bank, 25 Wyo. 467; School District No. 3 v. Western Tube Co., (Wyo.) 80 P. 155; Mitter v. Black Diamond Coal Co., (Wyo.) 193 P. 520. The following cases relate to the sufficiency of a petition...