Horton v. Early, Case Number: 2733

• Court: Supreme Court of Oklahoma
• Writing for the Court: SHARP, C.
• Citation: 1913 OK 508,134 P. 436,39 Okla. 99
• Parties: HORTON v. EARLY.
• Docket Number: Case Number: 2733
• Decision Date: 06 August 1913

1913 OK 508
134 P. 436
39 Okla. 99

HORTON
v.
EARLY.

Case Number: 2733

Supreme Court of Oklahoma

Decided: August 6, 1913

Syllabus

¶0 1. JUSTICES OF THE PEACE--Appeal--Pleading--Amendment. The right to file amended pleadings in the county court, on appeal from a justice of the peace court, depends upon whether it is in further ance of justice to permit them to be filed, and is to be determined by that court in the exercise of a sound judicial discretion.

2. SAME -- Appeal -- Pleading -- Amendment. Where damages are sought to be recovered, and the only amendment made is to increase the amount or to add a new element of damage, and no objection to such amendment is made other than to object to answers to questions propounded to witnesses during the trial, no available error is presented on appeal.

3. PRINCIPAL AND AGENT--Authority of Agent--Question for Jury. The apparent authority of au agent is to be gathered from all the facts and circumstances in evidence, and is a question of fact for the jury.

4. LANDLORD AND TENANT--Lease--Implied Warranties. In the lease of a building for mercantile purposes, there is no implied warranty that it is suitable or properly adapted for the uses to which it is applied, nor that it shall continue to be suitable for the lessee's use or business, or safe from exposure to danger from the elements.

5. SAME--Repairs--Negligence--Liability of Amendment. A lessor who, in the absence of a stipulation to repair, nevertheless, at the request of the lessee, gratuitously authorizes repairs to be made upon the leased premises, but does so in such a negligent and unskillful manner that damages therefrom result to the tenant, is liable to the latter for such loss and damage.

6. APPEAL AND ERROR--Review--Harmless Error. Where it appears from the evidence that a verdict is so clearly right that, had it been different, the court should have set it aside, such verdict will not be disturbed merely for the reason that there is error found in the instructions.

W. H. Ritchey and Phillips & Fowler, for plaintiff in error.

Deck & Elting, for defendant in error.

SHARP, C.

¶1 This case originated in a justice court in Bryan county. Plaintiff, in his bill of particulars, sought to recover judgment for $ 25 for the rent of a store building in the city of Durant for the month of April, 1910. Defendant filed a written answer, claiming damages to her stock of goods, by reason of the fact that the roof of the store building leaked, and that in consequence thereof her stock of goods was damaged in the sum of $ 50. A trial being had, the defendant prevailed, whereupon plaintiff appealed to the county court, and filed therein a motion to require defendant to make more definite and certain the allegations of her answer in reference to damages. An amended answer was filed in the county court on March 2, 1911, in which it appears that the defendant attempted to comply with the order of the court in the particular mentioned, but in which amended answer she sought to recover damages of plaintiff, on account of loss sustained by reason of the leaky roof, in the sum of $ 115. No objection to the filing of the amended answer was made by motion to strike or otherwise. Issue was joined thereon by written reply, and the case went to trial in the county court upon the issues as amended in that court. The only objection urged in regard to the amendment was during the examination of defendant, when she was asked the following questions:

"Q. At this time what was the condition of the floor on the inside? A. Water standing all over it and over my rubbers. Q. What effect did that have on your trade? (Objection.) Q. That is, could you carry on your trade? A. No, sir. (Objection.)"

¶2 It will be noted that in neither instance was any objection made until the witness had answered the question. It is a familiar rule of law that, although the question propounded to a witness be objectionable, opposing counsel cannot complain of the prejudicial effect thereof, where no objection was made until after the answer was given, and where no request was made to exclude the testimony from the consideration of the jury. The question is one that has recently been before this court in St. Louis & S. F. R. Co. v. Davis, 37 Okla. 340, 132 P. 337, where numerous authorities are cited in support of the rule announced. The right to file amendatory pleadings in the county court, where permitted by the court in furtherance of justice, is expressly authorized by section 5467, Rev. Laws 1910. The question of the right to file amended pleadings or new pleadings is one that must rest largely in the sound discretion of the trial court. While on appeal a new cause of action should not be permitted to be introduced by amendment to the pleadings, yet as the case is to be tried de novo in the county court, and as the statute expressly authorizes the filing of amended or new pleadings, amendments, where properly confined and made in furtherance of justice, will not form sufficient ground for reversal, at least where the only objection urged arises during the trial by objection made after answer to questions...