Garvin v. Harrell

• Decision Date: 16 November 1910
• Docket Number: Case Number: 617
• Citation: 27 Okla. 373,1910 OK 329,113 P. 186
• Parties: GARVIN v. HARRELL.
• Court: Oklahoma Supreme Court

1910 OK 329

113 P. 186

27 Okla. 373

GARVIN v. HARRELL.

Case Number: 617

Supreme Court of Oklahoma

Decided: November 16, 1910

Syllabus

¶0 1. PLEADING--Particularity--Justice Courts. The same degree of particularity, in pleadings, is not required in actions before a justice of the peace that is required in courts of record and a pleading that is sufficient in a justice's court, is sufficient in the appellate court where the cause is tried de novo, upon appeal.

2. FRAUD--False Representations. A party is guilty of fraud and deceit where, with intent to induce another to enter into a contract, he makes a positive assertion, which is material, in a manner not warranted by his information, or where he is not shown to have reasonable grounds for believing it true, where the assertion so made is not true, even though believed by the party making it. In such a case the definite assertion as a fact of that which is untrue. concerning that which the party has no knowledge, is tantamount to the assertion of something which the party knows to be untrue.

3. NEW TRIAL--Misconduct of Jury--Treating Jurors. The verdict of a jury in favor of a party will be set aside where, after the empaneling of the jury and before verdict, he treats or entertains the same or any member thereof.

4. SAME--After the jury has been selected and sworn to try the issues in the cause, the successful plaintiff entertained at dinner at his expense three jurors at a restaurant kept by a fourth juror; a motion for new trial setting this up as one of the grounds was denied. Held, error.

Error from Sequoyah County Court, W. N. Littlejohn, Judge

Action by S. A. Harrell against Ben F. Garvin. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

T. F. Shackelford, for plaintiff in error.

DUNN, C. J.

¶1 This case presents error from the county court of Sequoyah county. It was tried originally on a bill of particulars filed before one of the justices of the peace of that county. After trial, appeal was taken to the county court, and a trial de novo had before a jury, which resulted in a verdict for plaintiff, defendant in error in this court. Motion for new trial was filed and denied, and the case has been regularly brought here for review by petition in error and case-made.

¶2 It is insisted by plaintiff in error, who was defendant in the trial court, that the court erred in overruling a demurrer to plaintiff's bill of particulars and in denying a motion to make the same more definite and certain. Without setting out the bill of particulars, we will say that, had the action fallen within the jurisdiction and been filed in the district court and governed by that procedure, there might perhaps be some merit in the pleas filed, but being a case within the jurisdiction of a justice of the peace, the rules of pleading are far less strict than in the district court. The rule obtaining was announced by the Supreme Court of the territory of Oklahoma in the case of Brewer & Stannard v. Black, 5 Okla. 57, 47 P. 1089, as follows:

"The same degree of particularity, in pleadings, is not required in actions before a justice of the peace, that is required in other courts. It is sufficient if the bill of particulars states, in a plain and direct manner, the facts constituting the cause of action or the claim to be set off; and a pleading that is sufficient in a justice's court is sufficient in the district court, where the cause is tried de novo upon appeal."

¶3 See, also, Honnold's Justice, sec. 175, p. 91.

¶4 The bill of particulars filed sets out in ordinary language the fact that the parties plaintiff and defendant made an exchange of mules, and that the defendant fraudulently represented his mule to be sound and all right and caused the plaintiff to believe and rely upon such representations; that they were made by the defendant knowing them to be false and knowing that the mule was diseased with the glanders, or some similar ailment, but that the mule was wholly worthless; whereupon plaintiff averred he was damaged in the amount of $ 196.00. This pleading in our judgment was sufficient, and the court committed no error in overruling the demurrer and denying the motion.

¶5 Counsel next complains of the admission of certain evidence, which it is contended involves, both hearsay and conclusions, and which is not confined to statements of facts within the knowledge of the witnesses. We have considered the evidence complained of, and, while in no wise sanctioning or approving the admission of all of it, yet, if it were the only defect in the trial, it would hardly be error prejudicially sufficient to effect a reversal; for, considering the whole case, in our judgment the verdict returned would have been the same, notwithstanding the errors complained of in regard to the incompetent testimony. We do not regard it necessary to further notice the same, believing that on another trial counsel for plaintiff will eliminate the objectionable features.

¶6 Exceptions are likewise taken to certain instructions given, requested, and refused, involving the gravamen of the bill. A reading of the instructions shows them to be somewhat involved, a portion being in fact too favorable to the defendant, while other parts are more favorable than plaintiff was entitled. The rule fixing the measure of proof required to establish deceit is that a party is guilty where, with intent to induce another to enter into a contract, he makes, a positive assertion which is material in a manner not warranted by his information, or where he is not shown to have had reasonable grounds for believing it to be true, where the assertion so made is not true, even though believed by the party making it. In such a case the definite assertion as a fact of that which is untrue concerning that of which the party has no knowledge is tantamount to the assertion of something which the party knows to be untrue. Our statute on this matter is clear and explicit. Sec. 14, art. 1, chap. 15 (par. 743), Wilson's Revised and Annotated Statutes of Oklahoma, 1903, sec. 1052, Compiled Laws of Oklahoma 1909, provides:

"Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true. 2. The positive assertion in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true. * * "

¶7 Sec. 105, art. 5, c. 15 (par. 834), Wilson's, etc., Stats., sec. 1144, Comp. Laws of Oklahoma, 1909, provides:

"One who wilfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers."

¶8 And sec. 106, art. 6, c. 15 (par. 835), Wilson's, etc., Stats., sec. 1145, Compiled Laws of Oklahoma, 1909, provides:

"A deceit, within the meaning of the last section, is either: First, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true. Second, the assertion as a fact of that which is not true, by one who has no reasonable ground for believing it to be true. * * *"

¶9 On another trial of this cause, the rule adduced from the foregoing statutes as laid down in Howe v. Martin, 23 Okla. 561, 102 P. 128, should be the guide for the instructions to the jury, and by following it there need be no error.

¶10 One of the grounds of the motion for new trial is misconduct of the jury and prevailing party. In support of this an uncontroverted showing was made that after the jury for the trial of the cause was empaneled, and during the noon recess, the plaintiff took John Keith and W. L. Patrick, jurors in the cause, to a restaurant kept by John Hoggard, another one of the jurors, and after arriving there, W. R. Griffity, another of the jurors, entered, and that the plaintiff paid for the dinners of all of said jurors. The court refused to set aside the verdict and grant a new trial on this showing, and this is alleged as one of the errors. We believe, without exception and uniformly, the courts of this country have held conduct of this character on the part of the prevailing party sufficient to avoid the trial. See authorities noted in 29 Cyc. 803 and Thompson on Trials, sections 2560 and 2564. Instances of, and the grounds on which the rule has been applied where the entertainment was furnished the jurors by the successful party during the trial, may be noted as follows: Marshall et al. v. Watson, 16 Tex. Civ. App. Rep. 127 (plaintiff paid for the dinners of two jurors); Walker v. Walker, 11 Ga. 203 (one of the jurors spent a night at the home of the successful party); Walker, Ex'r, v. Hunter et al., 17 Ga. 364, 414 (counsel for the successful party entertained at his house two of the jurors); Redmond v. Royal Insurance Co., 7 Phila. 167 (several jurors received entertainment at a restaurant kept by a person interested in the result of the verdict); Ensign v. Harney, 15 Neb. 330, 18 N.W. 73 (counsel for successful party loaned his buggy to two jurors Saturday night on the adjournment of court, that th...