Hobbs v. Smith

• Decision Date: 10 January 1911
• Docket Number: Case Number: 710
• Parties: HOBBS v. SMITH et al.
• Court: Oklahoma Supreme Court

1911 OK 32

115 P. 347

27 Okla. 830

HOBBS v. SMITH et al.

Case Number: 710

Supreme Court of Oklahoma

Decided: January 10, 1911

Syllabus

¶0 1. APPEAL AND ERROR--Evidence--Sufficiency. Where there is a conflict in the testimony introduced on the trial of an action, this court will not reverse the judgment of the trial court if the evidence of the successful party, when considered by itself, is sufficient to sustain the verdict.

2. TORTS--Contracts--Violation--Action in Tort. Where the relation between the parties to an action has been established by contract, express or implied, if the law imposes certain duties because of the existence of the relationship created, a violation of the contract obligations may be waived and an action in tort maintained for any violation of such imposed duties.

3. DAMAGES--Sale of Diseased Animals--Exemplary Damages. In an action in which it is alleged that defendant by fraud and deceit induced plaintiff to purchase certain hogs which at that time the defendant well knew were infected with cholera, it is not error, under the provisions of section 2887, Comp. Laws of Okla. 1909, to instruct the jury that if it found from the evidence that the defendant, knowing said hogs to be diseased with the cholera, falsely and wilfully represented to plaintiffs that the hogs sold and delivered were sound in health and condition and good stock hogs, and that plaintiffs had not examined them prior to the purchase, but relied upon such representations and such representations were false, and that said hogs were infected with cholera, that the defendant was liable to the plaintiffs, in addition to the amount of actual damages which had been sustained, a reasonable sum as exemplary damages for sake of example and punishment for the wrong done.

4. NEW TRIAL--Grounds--Newly Discovered Evidence--Diligence. Where from the face of a motion for new trial on the ground of newly discovered evidence, as well as from all of the facts in the case, it is manifest that movant had failed to exercise reasonable diligence to secure the alleged newly discovered evidence in time for the trial, and which it is reasonably apparent could have been secured had proper diligence been exercised, the denial of a motion for new trial based on this ground is not error.

Error from District Court, Kingfisher County; A. H. Huston, Judge.

Action by T. C. Smith and J. A. Blackford, as partners, against Lyman Hobbs. Judgment for plaintiffs, and defendant brings error. Affirmed.

F. L. Boynton and Robberts & Curran, for plaintiff in error.

Bradley & Bradley, for defendants in error.

DUNN, C. J.

¶1 This case presents error from the district court of Kingfisher county. October 7, 1907, defendants in error as plaintiffs filed their petition in the district court to recover of and from defendant, plaintiff in error in this court, actual damages in the amount of $ 642.37, and exemplary damages in the sum of $ 1,000.00, which said damages are alleged to have grown out of the sale by defendant to plaintiffs of hogs infected with cholera. It is alleged in the petition that the plaintiffs were partners engaged in the business of buying, selling, and shipping hogs at the village of Dover, Kingfisher county, Oklahoma Territory. That on or about March 10, 1907, the defendant represented to and informed plaintiffs that he had some good stock hogs in sound health and condition, and proposed to sell and deliver the same to plaintiffs at their stock yards in the village of Dover for the market price for such hogs. That the plaintiffs had not at that time seen the hogs, but relying upon the representation of defendant, and believing the same to be true, agreed at that time to buy from him about forty of such hogs at an agreed price per pound. That thereafter the defendant sent and delivered to plaintiffs at their stock yards twenty-seven hogs, for which plaintiffs paid in accordance with their contract. That after such payment the hogs purchased appeared to be sick, and plaintiffs were then informed that defendant's hogs had hog cholera and that many of them had died of cholera a few days preceding the delivery. That the defendant sent another load of hogs to plaintiff, all of which were diseased and sick, three being then in a dying condition. That plaintiff refused to receive and accept the same. That the hogs which were sold and delivered by the defendant to plaintiffs were diseased with hog cholera at the time of said sale and delivery, and that defendant well knew that such hogs had hog cholera at that time. That the hogs so purchased by plaintiffs communicated hog cholera to the other hogs of plaintiffs, a number of which died. Then follows a number of items of damage in the nature of expense incurred by plaintiffs for caring for the diseased animals and renovating their premises. To this petition defendants filed answer consisting of a general denial and a specific denial that at the time of the sale and delivery of said hogs the same were infected with the disease of hog cholera or that they were diseased, but were good, sound, healthy stock hogs, in good condition, and denied that they were responsible for the spread of any disease of any character to the other hogs owned by plaintiffs, and that plaintiffs were experienced dealers in hogs and were able to examine hogs purchased by them, and upon such examination were fully able to ascertain whether said hogs were diseased or not. That at the time of the delivery to plaintiffs they inspected and examined the hogs and knew that they were not so infected. For reply plaintiffs denied the averments of the answer and again alleged that the hogs were affected and diseased with a contagious and infectious disease and were not good, sound, and healthy hogs in good condition at the time of the purchase. Upon the issues thus made up, the cause was tried to a jury with instructions under which they returned a verdict embracing both actual and exemplary damages in the amount of $ 800. On the filing of a motion for new trial, plaintiffs remitted $ 100, whereupon the motion for new trial was denied, and defendant has brought the cause regularly to this court for review.

¶2 A number of questions of law are presented by counsel, but it is manifest that the chief complaint is that the jury, on the evidence, returned a verdict for plaintiffs when it should have been for the defendant. The evidence of the parties was in direct conflict and the question for the jury to determine was, on which side lay the truth, and to which side credit should be given. An examination of the abstract of the evidence, and also of the record itself, discloses that, in addition to the direct evidence, there was a considerable amount of circumstantial and inferential testimony which was necessary for the consideration of the jury, and counsel for plaintiff in error insist that only one conclusion can result from a proper consideration of this evidence, while counsel for defendants in error with equal vigor insist that the conclusion reached by the jury was the correct one. The verdict was challenged on the motion for new trial before the trial judge, whose duty in such cases is set forth by this court in the case of Hogan v. Bailey, ante, 110 P. 890. We therein noted that the function of the trial court was higher than to act merely as a moderator or umpire between contending adversaries before a jury; that, in addition to seeing that the conduct of the trial was fair and that the litigants each had a fair opportunity to present his cause and to have the facts weighed in the light of proper instructions, it was his duty, after the jury had returned its verdict, where the justness of the same was challenged, to carefully weigh the entire matter and, unless he was satisfied that the verdict was responsive to the demands of justice, to set the same aside and grant a new trial; and that, unless the conclusion reached by the jury met the affirmative, considerate approval of the conscience and mind of the court, it should not, when challenged, be permitted to stand. We must assume in this case that on the presentation of the motion for new trial this duty was performed by the learned trial judge who presided. So that the verdict determining the facts and awarding judgment in this case comes to us with the conscientious sanction and approval of the trial court. It is the duty of the trial court to be satisfied that no injustice has been done, and if not satisfied on this point, he should set the verdict aside and grant a new trial. But, in order for this court to set aside the verdict, it must be made affirmatively to appear that injustice has been done. There is evidence in this record sufficient, if credited, to support the theory of either party, and in such cases as this, notwithstanding the vigorous insistence of counsel that the evidence of the defendant was true and should have met with the approval of the jury, we are constrained to and must hold that the verdict, not lacking evidence to reasonably sustain it, must stand. Speaking to the question of the duty of courts and juries, Judge Caldwell, in the case of Gulf, C. & S. F. Ry. Co. v. Ellis, 54 F. 481, 4 C.C.A. 454, said:

"In common-law actions tried to a jury this court cannot review or retry the facts. If there is any evidence, direct or circumstantial, fairly tending to support the verdict, it must stand. Every presumption is in its favor, and all doubts must be resolved in its favor. This court will not weigh nor balance the evidence. * * * It was because the people thought the judges were poor judges of the facts that they committed their decision to a jury. Undoubtedly juries sometimes err in deciding the facts, but their errors are trifling in number and extent compared with the errors of the judges in deciding the law. The numerous appellate courts of the country are engaged principally in correcting their own and the errors of other courts on questions of law. The

...