McDonald v. Strawn

• Decision Date: 01 June 1920
• Docket Number: 9569.
• Parties: MCDONALD v. STRAWN.
• Court: Oklahoma Supreme Court

190 P. 558

78 Okla. 271, 1920 OK 223

MCDONALD v. STRAWN.

No. 9569.

Supreme Court of Oklahoma

June 1, 1920

Syllabus by the Court.

In actions at law only alleged errors of law, and not matters of fact, are reviewable by this court on appeal. See paragraph 1, opinion.

Whether or not there is sufficient evidence to go to the jury in a law case is a question of law, and that question must be presented: (1) To the trial court by a demurrer to the evidence or motion to direct a verdict, a ruling made, and exception saved; (2) the alleged error in sustaining or overruling the demurrer to the evidence or motion to direct a verdict must be preserved by a motion for a new trial, ruling thereon by the trial court, and exception saved. Then this court on appeal will review the alleged error of law committed by the trial court in sustaining or overruling such demurrer or motion to direct a verdict; otherwise the sufficiency of the evidence to support the verdict cannot be inquired into by this court. See paragraph 1, opinion.

Neither a demurrer to the evidence, nor a motion to direct a verdict (if tried to a jury), nor motion for a declaration of law nor finding of fact, nor conclusion of law, is a necessary prerequisite to a review of the evidence in an equity case by this court on appeal; it being well settled that in equity cases this court will review the evidence as a question of fact, apply the law and the principles of equity thereto, and pronounce such judgment as the pleadings, the facts, and the principles of equity demand, and, if the judgment of the trial court is clearly against the weight of the evidence its judgment will be reversed or modified accordingly. See paragraph 1, opinion.

The failure to demur to the evidence in a law case or move to direct a verdict does not operate to waive exceptions to the instructions to the jury, or to the refusal to give certain instructions to the jury, or to the rejection or admission of evidence, or any other erroneous ruling, during the progress of the trial. See paragraph 2, opinion.

It is incumbent upon a person dealing with an alleged agent to discover at his peril whether the assumed agency be general or special, that such pretended agent had authority, and that such authority is in its nature and extent sufficient to permit him to do the proposed act. See paragraph 3, opinion.

The law itself makes no presumption of agency, and the burden of proving agency, including not only the fact of its existence but its nature and extent, rests ordinarily upon the party who alleges it. See paragraph 3, opinion.

The fact of agency being in issue, evidence of the alleged agent's own declarations, statements, or admissions, as distinguished from his sworn testimony as a witness, is not admissible against an alleged principal for the purpose of establishing, enlarging, or renewing his authority, nor can his authority be established by showing that he acted as agent, or that he claimed to have the powers which he assumed to exercise. See paragraph 5, opinion.

The authority of a private agent to represent his principal is a fact, if in issue, that cannot be established by proof that he was generally reputed to be the agent. See paragraph 5 opinion.

General repute that one is agent for a farmer "in handling his cattle, stock, and other stuff during the latter part of his life" is no evidence that such alleged agent had authority to sell the farmer's cattle, stock, and other stuff. See paragraph 5, opinion.

Except as modified by section 5070, R. L. 1910, making an objection to evidence on the ground that it is incompetent, irrelevant and immaterial sufficient in the absence of a request from the trial judge or opposing counsel for more specific reasons, the general rule is that an objection that evidence "is immaterial," or is "incompetent, irrelevant and immaterial," or is "incompetent," is considered no objection. See paragraph 4, opinion.

The rule that objections should always state the grounds thereof, and should present to the trial court the precise point relied upon by the party objecting, is based on two grounds: (1) To show the trial judge the exact point on which the ruling is asked, in order that he may act advisedly and not be misled; (2) that counsel for the opposing party may have an opportunity to obviate the objection if well taken, and that it is not the duty of the trial judge and opposing counsel to explore the whole domain of the law of evidence in an effort to discover why the evidence objected to is not admissible. See paragraph 5, opinion.

The proper test for determining whether or not a thing is within a rule is to ascertain whether it is within the reason of the rule, and, if not within the reason of the rule, it is not within the rule; thus, if the inadmissibility of the evidence offered is clearly apparent on its face, no casting around by the court or opposing counsel for a ground of exclusion is necessary. See paragraph 5, opinion.

If it is apparent that the general objection, to wit, "Objected to," could not have been obviated, and that the evidence is clearly inadmissible for any purpose, this court, more as a favor than as the recognition of a right, may notice it, and will do so when it clearly appears the evidence admitted was highly prejudicial. See paragraph 5, opinion.

Record examined, and case reversed for error in overruling such general objection to the introduction of evidence.

Error from County Court, McCurtain County; J. D. Parks, Judge.

Replevin by H. C. McDonald, administrator of Paul Stephens, deceased, against Roscoe Strawn. Verdict and judgment for defendant, motion for new trial denied, and plaintiff appeals. Reversed, with direction to grant plaintiff a new trial.

Armstrong & Jones, of Idabel, for plaintiff in error.

G. M. Barrett, of Hugo, and George T. Arnett, of Idabel, for defendant in error.

RAMSEY, J. (after stating the facts as above).

1. The plaintiff in error contends that there was not sufficient evidence to sustain the verdict of the jury. This assignment of error is overruled because plaintiff failed to move the trial court to direct the jury to return a verdict in his favor. There is no direct appeal to this court from the verdict of a jury in an action at law. In actions at law this court on appeal considers only alleged errors of law, and not questions of fact.

Thus 2 Standard Proc. 434, says:

"An appellate court, in connection with appeals for the review of errors, is not a trier of facts."

And on page 409 the same authority says:

"The distinction between hearings de novo and statutory appeals in the nature of proceedings in error at common law has also an important bearing upon the subject of review. In the technical appeal, as in equity, the whole case is brought up, and all inference of fact, as well as conclusions of law, are before the appellate court, but a writ of error brings up only errors of law."

Speaking for the Eighth Circuit Court of Appeals in U.S. Fidelity & Guaranty Co. v. Board of Commissioners, 145 F. 151, 76 C. C. A. 121, Circuit Judge Sanborn said:

"The question whether or not at the close of a trial there is substantial evidence to sustain a finding in favor of a party to the action is a question of law which arises in the progress of the trial. In a trial to a jury it is reviewable on an exception to a ruling upon a request for a peremptory instruction. In a trial by the court without a jury it is reviewable upon a motion for a judgment, a request for a declaration of law, or any other action in the trial court which fairly presents this issue of law to that court for determination before the trial ends."

In the absence of statutory modification, the rule is well settled that the question whether or not there is sufficient evidence to go to the jury is a question of law, and must be presented first to the trial court, by demurrer to the evidence, or by motion to direct a verdict, or motion for nonsuit (the method varies in different jurisdictions), ruling thereon had and exceptions saved; otherwise that question cannot be reviewed by writ of error, appeal, petition in error, or whatever name the particular method of appellate review bears in different jurisdictions. Reavely v. Harris, 239 Ill. 526, 88 N.E. 238; State v. Young, 77 Ohio, 529, 83 N.E. 898; Wakely v. Johnson, 115 Mich. 285, 73 N.W. 238; Val Blatz Brewing Co. v. Interstate Ice & Cold Storage Co., 161 Mo.App. 531, 143 S.W. 542; Home Fire Ins. Co. v. Phelps, 51 Neb. 623, 71 N.W. 303; Seeman v. Levine, 205 N.Y. 514, 99 N.E. 158; Holder v. Giant Lumber Co., 161 N.C. 177, 76 S.E. 485; Landis Mach. Co. v. Konantz Saddlery Co., 17 N.D. 310, 116 N.W. 333; Fassett v. Boswell, 59 Or. 288, 117 P. 302; Molle v. Kewaskum Mut. F. Ins. Co., 134 Wis. 404, 114 N.W. 798; Keeley v. Ophir Hill Consol. Mining Co., 169 F. 601, 95 C. C. A. 99; Penn. Casualty Co. v. Whiteway, 210 F. 782, 127 C. C. A. 332; U.S. v. Diamond Match Co., 115 F. 288, 53 C. C. A. 90; Foster v. Crawford (C. C.) 80 F. 991. This court has adopted this rule. Muskogee Electric Traction Co. v. Reed, 35 Okl. 334, 130 P. 157; Reed v. Scott, 50 Okl. 757, 151 P. 484; Schmucker v. Clifton, 162 P. 1094; Holland Banking Co. v. Dicks, 170 P. 253; Oaks v. Samples, 57 Okl. 660, 157 P. 739; Norman v. Lambert, 167 P. 213.

The rule in Oklahoma is this: Whether or not there is sufficient evidence to go to the jury in a law case is a question of law, and that question must be presented: (1) To the trial court by a demurrer to the evidence or motion to direct a verdict, a ruling obtained, and exceptions saved; (2) the alleged error in sustaining or overruling the demurrer to the evidence or motion to direct a verdict must be preserved by motion for a new trial, ruling thereon by ...