Horton v. Early
| Decision Date | 06 August 1913 |
| Docket Number | Case Number: 2733 |
| Parties | HORTON v. EARLY. |
| Court | Oklahoma Supreme Court |
¶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.
¶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:
¶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 propounded to the witnesses. Where the only change effected is to increase the amount of damages or to add an element of damages, and where the original cause of action remains the same, we cannot say the trial court abused its discretion in permitting the amendment. St. Louis & S. F. R. Co. v. Steele, 37 Okla. 536, 133 P. 209; Stevens v. Perrier, 12 Kan. 297; Robbins v. Sackett, 23 Kan. 301; Kansas City, Ft. S. & G. R. Co. v. Hays, 29 Kan. 193; 24 Cyc. 727 et seq. It is next urged that the plaintiff's agent, Downing, was without authority in the premises, except to collect and receipt for the rents on the building occupied by defendant. The question of agency was one of fact to be gathered from all the facts and circumstances in evidence. Ricker Nat. Bank v. Stone, 21 Okla. 833, 97 P. 577; Minneapolis Threshing Machine Co. v. Humphrey et al., 27 Okla. 694, 117 P. 203; Port Huron Engine & Thresher Co. v. Ball, 30 Okla. 11, 118 P. 393; Allen v. Kenyon, 30 Okla. 536, 119 P. 960; Midland Sav. & Loan Co. v. Sutton et al., 30 Okla. 448, 120 P. 1007; Yukon Mills & G. Co. v. Imperial Roller Mills Co., 34 Okla. 817, 127 P. 422; Kelley et al. v. Wood, 32 Okla. 104, 120 P. 1110. At the time in question the plaintiff was in Mexico. Defendant made complaint to Colonel Downing about the condition of the roof. The complaint Downing communicated to the plaintiff, who answered, stating that he would be back home soon, and authorizing Downing to arrange the matter the best he could. An attempt was made to repair the roof, and the cost thereof was afterwards authorized by plaintiff to be deducted from the rents. So that, regardless of any express authority from the plaintiff to his agent, the evidence shows a ratification of the agent's acts. The fact that plaintiff instructed his agent to do the best he could toward a settlement of his tenant's complaint would alone be a sufficient authorization to the agent to exercise his judgment concerning the particular act in question, and when the agent did act, and his action was ratified and approved by the principal, by directing payment of the cost of repair, no room for question as to the liability of the principal can exist. It is urged that the court erred in instructing the jury as set out in instruction number O. The instruction is open to the objection urged against it, as it is a well-recognized principle of law that, in the absence of a statute or agreement, there is no implied warranty that leased premises are suitable for the purposes for which they are demised, or that the lessor will keep the property in repair. Hanley et al. v. Banks et al., 6 Okla. 79, 51 P. 664; Davidson v. Fischer, 11 Colo. 583, 19 P. 652, 7 Am. St. Rep. 267, and note; Petz v. Voigt Brewery Co., 116 Mich. 418, 74 N.W. 651, 72 Am. St. Rep. 531, and note; Minneapolis C. Co. v. Williamson, 51 Minn. 53, 52 N.W. 986, 38 Am. St. Rep. 473, and note; Gregor v. Cady, 82 Me. 131, 19 A. 108, 17 Am. St. Rep. 466; Ward v. Fagin, 101 Mo. 669, 14 S.W. 738, 10 L.R.A. 147, 20 Am. St. Rep. 650, and note; Landt v. Schneider, 31 Mont. 15, 77 P. 307; Hines v. Wilcox, 96 Tenn. 148, 33 S.W. 914, 34 L.R.A. 824, and note, 54 Am. St. Rep. 823. The building being one used for business or mercantile purposes, section 3813, Rev. Laws 1910, can have no application. Tucker v. Bennett, 15 Okla. 187, 81 P. 423; Edmison v. Aslesen, 4 Dak. 145, 27 N.W....
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