Lowe v. Hickory

• Decision Date: 12 November 1935
• Docket Number: Case Number: 23592
• Citation: 176 Okla. 426,55 P.2d 769,1935 OK 1112
• Parties: LOWE v. HICKORY.
• Court: Oklahoma Supreme Court

1935 OK 1112

55 P.2d 769

176 Okla. 426

LOWE v. HICKORY.

Case Number: 23592

Supreme Court of Oklahoma

Decided: November 12, 1935

Syllabus

¶0 1. TRIAL--Effect of General Finding of Court in Jury-Waived Case.

In a civil action triable to a jury, where jury is waived and the cause is tried to the court, the findings of the trial court have the force and effect of a jury verdict, and when the finding is a general one it is a finding of every specific thing necessary to be found sustaining the general judgment.

2. APPEAL AND ERROR--Sufficiency of Evidence to Sustain Judgment in Jury Waived Case.

In such case, as in the case of a jury verdict, there being no errors of law, the judgment will not be disturbed on appeal if there is any competent evidence reasonably tending to support the conclusion of the trial court.

3. SAME--Credibility of Witnesses and Weight of Evidence for Triers of Fact.

It is for the jury, or the trial court upon waiver of jury, to determine the credibility of the various witnesses, and the weight and value to be given to their testimony. The conclusion there reached upon these points will not be disturbed on appeal, unless appearing clearly to be based on caprice, or to be without any reasonable foundation.

Appeal from District Court, Hughes County; Geo. C. Crump, Judge.

Action to recover real estate by James Hawkins and others against Addle Hickory; Nicey Lowe intervening. From a judgment in favor of the defendant, the intervener appeals. Affirmed.

W. W. Pryor, James W. Rodgers, and Dudley E. Buell, for plaintiff in error.

Anglin & Stevenson, for defendant in error.

WELCH, J.

¶1 On and prior to March 30, 1928, the defendant, Addle Hickory, was in possession of certain land claiming to own the same as heir of the allottees, Simpson Hawkins and Bunnie Hawkins. On that date James Hawkins and several others, as plaintiffs, instituted this action to recover such lands, they claiming certain inherited interests therein. Thereafter, on the llth day of April, 1928, Nicey Lowe, intervener, flied her petition in intervention, she also claiming to be an heir and seeking to be adjudged the owner of the Bunnie Hawkins allotment, and to have possession of it and of an interest in the Simpson Hawkins allotment.

¶2 No further reference will be made to the original plaintiffs in the action, as they seem to have abandoned their claims of relationship, and the action proceeded between Nicey Lowe, intervener, on the one hand, and Addie Hickory on the other hand.

¶3 The relationship of the defendant to the deceased allottees is not disputed. The right of the intervener to recover is based upon her claim that from October, 1907, until April, 1908, she and Bunnie Hawkins lived together as common-law husband and wife, and that when Bunnie Hawkins died in April, 1908, she survived him as his widow; that thereafter, in August, 1908, a son was born who died four days after birth; that therefore she is entitled to inherit as the sole surviving heir of Bunnie Hawkins. That claim of the existence of the marital relation is controverted by the defendant. And it is clear that if this claim of the intervener is not established, the defendant is entitled to prevail. All of the parties are Creek Indians.

¶4 The cause was tried in the district court at considerable length, and that court found the issues in favor of the defendant and rendered judgment accordingly. From that judgment the intervener appealed, and urges that the findings and judgment of the trial court are contrary to the evidence.

¶5 In this case the rule is clearly applicable that a general finding for the defendant is a finding against the opposite party upon every material issue, and is a finding of each specific thing necessary to sustain the general finding. That rule is so stated in many decisions of this court.

¶6 The record is voluminous. Several witnesses testified for each party. Each of the several witnesses testified to some facts more or less supporting the theory of the party calling the witness, but the testimony of each witness is at times contradictory, and at times indefinite and uncertain. Much of the testimony was given in answer to leading questions, which adds to our difficulty in analyzing the proof presented on the vital question as to whether the relation of husband and wife existed between Bunnie Hawkins and Nicey Lowe, the intervener.

¶7 In checking the record in this case we are at once convinced of the wisdom of the rule which recognizes the fact that the trial judge, who sees the witnesses, observes their demeanor, and hears their testimony, is in better position to judge as to the true facts than the appellate court, making its review by an examination of the record.

¶8 The intervener herself testified to facts sustaining her claim. She stated that She and Bunnie were "married"; that "her father and uncle were present at the time," and that her uncle "talked," as did also her father. This would indicate some kind of private ceremony had in connection with the beginning of her claimed relation with Bunnie Hawkins. At the time of the trial her father had died. Her uncle was a witness, but he did not detail any such meeting or occasion between Nicey and Bunnie. The enrollment record introduced in evidence shows that Nicey Lowe was enrolled as being seven years of age in 1902. This would indicate her age in 1907 was twelve years. She established her birth date as September 5th, which might indicate, with the enrollment record, that she was thirteen during the six-month period she claimed to have lived with Bunnie as his wife, and at the time in August, 1908, when she said a child was born. In the course of the trial, over a period of days, she was asked several questions as to her age when she "married" Bunnie. Her first statement was that she was 25 years old. A few questions later she was specifically asked whether she was 25 years old or 15 years old, and stated again that she was 25 years old when she "married" Bunnie. In a later stage of the trial, that is, some days later, she was interrogated again and stated she was 15 years old when she married him. Nicey Lowe had a guardian, one Johnson Tiger, appointed by the county court of Hughes county in the year 1911. She said as a witness that her marriage to Bunnie occurred after Johnson Tiger was appointed her guardian. Undisputed facts are that Bunnie died about April, 1908, and that some years later the intervener, Nicey Lowe, married one Edmond Hobiah, and following his death some years later, married one Eunah Johnson.

¶9 From the death of Bunnie Hawkins in 1908, until the commencement of this action in 1928, the defendant continued to possess and claim his land, and although the intervener knew about this, she made no claim as being an heir or the surviving widow of Bunnie Hawkins, nor asserted any claim or right to his property until the commencement of this action.

¶10 Reference is made to those portions of the testimony of the intervener to point out some of the discrepancies in that part of the testimony upon which she seeks to reverse the findings of the trial court.

¶11 Various other witnesses made statements tending in part to corroborate portions of the testimony of the intervener. They were persons who lived within a few miles or several miles of the place where Nicey Lowe lived, and, of course, they were not so well advised as to details as was the intervener herself. There was some corroboration of the intervener as to the fact that she gave birth to a child, and as to the child's death and burial, and as to the fact that she was seen in company with Bunnie Hawkins. While various statements of the witnesses were contradictory and indefinite, we may well understand that when we bear in mind that the witnesses were testifying in 1931 as to facts claimed to have existed in 1907 and 1908, and since during that period there has been no intervening claim that this marriage relation existed between Nicey Lowe and Bunnie Hawkins, the testimony as to details of the action of the parties coming under the observation of disinterested neighbors might be expected to be somewhat indefinite.

¶12 There is no dispute as to the circumstances of the death and burial of Bunnie Hawkins. He was critically ill at the home of a neighbor a short distance from the home of Nicey Lowe's father. An uncle living 10 or 15 miles away learned of his illness and with two other men went to the place and took Bunnie in a wagon to the home of the uncle. It is uncertain where the intervener was at the time. The uncle and the two men with him did not see her at the place where Bunnie was ill, although she stated she was there: she further stated that Bunnie was moved from that place to his uncle's home without her knowledge. Bunnie was critically ill and died three or four days later, and was buried at or near the home of his uncle where he died. The intervener did not attend the funeral, and in fact did not know where he was buried, for the reason, as stated by her, that they never told her where it was, She also explained her failure to attend the funeral as being due to the fact that she did not know of his death until after he was dead and buried.

¶13 Various witnesses testified as to details contradictory to the statements and claims of the intervener, and inconsistent with the existence of any kind or character of matrimonial relation between Bunnie and Nicey, and from a careful consideration of the entire record we are forced to the conclusion that we can say no more from the record than that the relationship claimed by the intervener may have existed, as she claimed, or might have never so existed at all, as contended by the defendant.

¶14 In 1920, some years prior to the commencement of this action, a determination of the heirship of Simpson Hawkins was had in the county court of Hughes county, in which the defendant, Addle Hickory, claimed to be the sole heir of Simpson Hawkins and Bunnie...