Hall Oil Company v. Barquin

Decision Date02 June 1925
Docket Number1041
Citation33 Wyo. 92,237 P. 255
CourtWyoming Supreme Court

Rehearing denied October 5, 1925 without opinion.

ERROR to District Court, Fremont County; RALPH KIMBALL, Judge.

Action by James Barquin and another against the Hall Oil Company and others. Judgment for plaintiff and defendants bring error. The material facts and points in controversy are fully stated in the opinion.

John D Clark, Hagens & Murane and Frederick D. Anderson for plaintiffs in error.

The alleged trespass occurred while defendants held a lease on the premises, though the lease was subsequently decreed to be void. Punitive damages are not allowable for acts under a supposed right and without malice; Philadelphia B. & W. R. Co. v. Green (Md.) 71 A. 986; Jopling v. Co. (W Va.) 29 L. R. A. (N. S.) 814; Rhyne v. Turley (Okla.) 131 P. 695; Kibler v. So. Ry. (S. C.) 40 S.E. 556; Gwynn v. Co. (S. C.) 48 S.E. 460; 2 Sutherland (4th ed) 1288; West. Union Co. v. Reeves (Okla.) 126 P. 216; Phelps v. Owens, 11 Cal. 23 Inman v. Ball (Iowa) 22 N.W. 668; Lyles v. Perrin (Cal.) 51 P. 332; Kuehne v. Allen, 148 F. 666; Barry v. Edmonds, (U. S.) 29 L. ed. 733; Phil. Co. v. Quigley (U. S.) 16 L. ed. 77; M. St. P. Ry. Co. v. Arms (U. S.) 23 L. ed. 374; L. S. & M. C. R. R. Co. v. Prentice, (147 U.S.) 101; Kestor v. Wagner, 22 Wyo. 516; the lease was not void except as to the homestead value; Jones v. Losekamp, 19 Wyo. 83; the Midwest Co. was obligated under its lease from the Hall Oil Co. to commence drilling within a fixed time and its failure to do so would have subjected it to damages for not protecting the lease. Exemplary damages are not allowable in the absence of malice; 2 Sutherland (4th ed.) 1288; West. Union Co. v. Westmorland (Ala.) 44 So. 382; C. R. I. P. Ry. Co. v. Whitten (Wis.) 119 S.W. 835; Unfried v. Libert, (Ida.) 119 P. 885; malice in such cases is defined in State v. Johnson, 7 Wyo. 510; plaintiff made no case for punitive damages; Yazoo & M. V. R. Co. v. Hardie, (Miss.) 34 L. R. A. (N. S.) 740; the judgment between the same parties is not judicata as to other controversies between the same parties; 15 R. C. L. 450-469; Moser v. Phil. H. P. R. Co. 40 L. R. A. (N. S.) 519; it is impossible to determine from the decree, upon which of two or more of the issues involved the judgment was entered; it was not therefore conclusive; Russell v. Place, 4 Otto (U.S.) 606, 24 L. ed. 214; Wentworth v. Co. (Wis.) 74 N.W. 551; Matson v. Poncin (Ia.) 132 N.W. 970; Berenio v. Co. (Calif.) 61 P. 958; Watts v. Watts (Mass.) 23 L. R. A. 187; Routh v. Board Commissioners (Kans.) 113 P. 397; Clifton v. Meuser, 129 P. 159; the parties to the two suits were not the same; the first was a suit in equity for cancellation of a lease; the second a suit at law for trespass; it is uncertain as to which of the findings judgment was rendered. Instructions numbered 2, 4 and 5 were erroneous; their effect was to lead the jury to believe that it was their duty to award punitive damages.

John J. Spriggs for defendants in error.

The appeal should be dismissed; there were two motions for new trial; the petition in error is insufficient; the Barquin lease was void on account of a prior lease; the 2nd motion for new trial had no standing; the first motion having been overruled; Wolbol v. Steinhoff, 168 P. 251; State v. Kimes, 20 O. C. D. 403; a motion to vacate a judgment is a motion for new trial; 5870 C. S. Floyd v. C. F. & I. Co., 50 P. 864; U. S. F. & G. Co. v. Nash, 124 P. 269; Hartley v. Chidister, 13 P. 578; Morgan v. Keller, (Mo.) 92 S.W. 75; Reid v. Filmore, 12 Wyo. 72; the substance and not the form of a motion governs; Stanton v. C. B. & Q. Ry. Co., 165 P. 993; Campbell v. Weller (Wyo.) 164 P. 881; motion for directed verdict was not renewed at the close of the evidence. The first motion was for a new trial; Barnhil v. Miller, 217 P. 274; the second motion contains no new matter. Jurors cannot impeach their verdict; Pullman v. Finlay (Wyo.) 125 P. 386; Gustavensen v. State, 10 Wyo. 300; State v. Whipple, 215 P. 14 prejudice will not be presumed from error; Linderberg v. Howe, 215, 230; the affidavits of the jurors show no prejudice; the evidence will be viewed in a light most favorable to sustain the verdict; Bank v. Bank, 215 P. 473; the second motion for a new trial is forbidden if not authorized by statute; 201 P. 164; defendant was entitled to but one motion; Doran v. Kennedy, 237 U.S. 362; Dorland v. Cunningham, 6 P. 135; Thompson on Trials, 2727; decision on first motion was res judicata; Rogers v. McCord, 91 P. 865; no error is assigned in overruling the first motion; petition and error is void since it was based on the second motion, which was without authority, leaving nothing before the court for review; excessive damages is not ground for new trial, unless shown to be given under influence of passion or prejudice; Kelley v. Co., 181 P. 331; 5870 C. S.; the assignment for excessive punitive damages is insufficient. There is no assignment as to excessive damages for acts of trespass which were wilful and malicious; Guffy v. Smith, 237 U.S. 119; Moseback v. Sheep Co., 210 P. 910; the acts of trespass had been forbidden; Cent. C. & C. Co. v. Peny, 173 F. 343; Henderson v. Coleman, (Wyo.) 115 P. 439; the Midwest Co. had notice; Thornton O. & G. 121; Seaman v. Canal Co., 213 P. 938; question as to sufficiency of evidence is addressed to the sound discretion of court; State v. Brantingham, 212 P. 501; and cannot be reviewed, unless directed verdict was requested; Allen v. Shepherd, 169 P. 1115; McVey v. Jemison, 207 P. 633; defendant's claim of good faith is unsupported; Guffy v. Smith, supra; Bolles v. Co., 106 U.S. 432; the evidence of malice is conclusive; Scott v. McDonald, 165 U.S. 58; Cochran v. Miller, 13 Iowa 128; prior judgment is res judicata, 23 Cyc. 1215; Vickers v. Vickers, 202 P. 31; Hawkins v. Ferguson, 193 P. 36; Mason v. Ruby, 204 P. 1071; Freeman on Judgments 249; facts decided in first suit cannot be disputed; Bigelow on Estoppel, 110-112; Floershien v. Board of Co. Com., 212 P. 453; Waters v. Bank, 150 P. 1126; Smith v. Peters, 188 P. 811; Davis v. Ramsdell, 181 P. 96; Holleman v. Cushing, 202 P. 1031; corporation acquiring subject matter pending suit is bound by decree, 163 F. 914; Smith v. Clark, 106 P. 659; principal of estoppel extends to all points litigated; Smith v. Clark, supra; Benson v. Harriman, 205 P. 257; Bigelow on Estoppel, p. 8; Curtis v. Lennes, 208 P. 81; Goodeagle v. Moore, 214 P. 725; punitive damages are imposed on the theory of punishment; Jones Co. v. Woody, 169 P. 879; Rhyne v. Turley, 37 Okla. 150, 131 P. 695; the financial standing of defendant may be considered; White v. White, 76 Kan. 82, 90 P. 1087; exemplary damages cannot be excessive, unless it be shown that the jury acted from passion or prejudice; Mallory v. Bennet, 15 F. 365; Smith v. Pittsburgh, 90 F. 783; Cornelius v. Smith, 175 P. 754; Jensen v. Co., 138 P. 1192; Torea Co. v. Yutich, 206 P. 595; Webb v. Co., 180 N.W. 263; Hunt v. Van, 202 P. 574; Cronberg v. Johnson, 208 P. 448; error does not presume injury; State v. Wells, 202 P. 7; presumption is that the jury understood instructions; Schwertz v. Co., 205 P. 217; a juror's statement cannot be heard to impeach his verdict; State v. Cook, 194 P. 404; Okla. & Co. v. McGhee, 202 P. 277; the cross appeal challenges the right of defendants to move improvements which were placed on the premises; Hurd v. Ry., 176 Mo. 115; Martin v. Bartmus, 207 P. 550; H. & L. S. & R. Co. v. P. Ry., 205 P. 229; having been placed there by trespassers, plaintiffs are entitled to recover their value thereof; Cosgriff v. Miller, 10 Wyo. 190; dismissal of defendant's appeal does not preclude consideration of plaintiffs cross appeal; Crane v. Oregon Short Line, 133 P. 811.

John D. Clark and Hagens & Murane in reply.

Section 5870 C. S. does not restrict the number of motions that may be filed after verdict; 5895 permits certain motions; Grover v. Lovella, 131 P. 43; Sections 5896-5897 also authorize certain motions. The court reserves control of its judgment during the term; juries may be sent back to correct their judgments; Abbott's Jury Trials 850; Smith v. Bank, 63 N.W. 796; Co. v. Skoman, 29 P. 21; a motion will not be called one for a new trial unless it be such in fact; U. P. R. R. Co. v. Bryne, 2 Wyo. 109; Boburg v. Prahl, 3 Wyo. 325; Mitter v. Coal Co., 27 Wyo. 72, 28 Wyo. 439; Stanton v. Co., 25 Wyo. 138; motion for directed verdict or judgment notwithstanding the verdict, differs from a motion for new trial; Slokum v. Ins. Co., 58 L. ed. 879, 13 L. R. A. (N. S.) 790; motion in arrest cannot take the place of motion for new trial; Thompson on Trials, 1974; Eugemoen v. C. & St. P. R. Co., 210 F. 896; Wagner v. Co., 126 P. 434; Davis v. Co., 134 P. 180; motion to vacate judgment is not motion for new trial; McCartner v. Shepherd, 117 P. 814; Cont. Gin Co. v. Arnold, 167 P. 614; after motion to vacate verdict is overruled, a motion for new trial is the proper practice; Campbell v. Weller, (Wyo.) 164 P. 881; counsel for defendants in error failed to answer the authorities submitted; there was no evidence justifying the submission of the question of damages to the jury; there was no evidence of gun threats. The doctrine of punitive damages has been so much abused that it has been repudiated in a number of states; Winkler v. Roeder, (Nebr.) 37 N.W. 607; Bank of Commerce v. Goos, (Nebr.) 58 N.W. 84; most of the authorities cited on the subject of punitive damages by defendant in error are not in point. The cross appeal seeks to reach movable chattels, which do not come within rule contended for; Van Ness v. Pacard, 7 L. ed. 374; Scudder v. Anderson, (Mich.) 19 N.W. 775; Carpenter v. Walker, (Mass.) 5...

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