McDonald v. Strawn

• Decision Date: 01 June 1920
• Docket Number: Case Number: 9569
• Citation: 1920 OK 223,190 P. 558,78 Okla. 271
• Parties: McDONALD, Adm'r, v. STRAWN.
• Court: Oklahoma Supreme Court

1920 OK 223

190 P. 558

78 Okla. 271

McDONALD, Adm'r, v. STRAWN.

Case Number: 9569

Supreme Court of Oklahoma

Decided: June 1, 1920

Syllabus

¶0 1. Appeal and Error--Review--Actions at Law--Questions of Fact.

In actions at law only alleged errors of law, and not matters of fact, are reviewable by this court on appeal. (See par. 1, Op.)

2. Same--Procedure to Preserve Grounds of Review.

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 par. 1, Op.)

3. Same--Review of Equity Cases--Sufficiency of Evidence.

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 par. 1, Op.)

4. Trial--Waiver of Exceptions--Failure to Demur to Evidence or Move for Directed Verdict.

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 par 2, Op.)

5. Principal and Agent--Authority of Agent--Duty to Ascertain.

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 par. 3, Op.)

6. Same--Actions--Burden of Proof.

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 alleged it.(See par.3, Op.)

7. Same--Evidence--Admissions and Acts of Agent.

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 par. 5. Op.)

8. Same--Evidence of Reputed Agency.

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 par. 5, Op.)

9. Same--Scope of Agency--Sales.

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 par. 5, Op.)

10. Trial--Sufficiency of Objections to Evidence.

Except as modified by section 5070. Rev. Laws 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 par. 4, Op.)

11. Same--Grounds for Rule.

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 do main of the law of evidence in an effort to discover why the evidence objected to is not admissible.(See par. 5 Op.)

12. Same.

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 par. 5, Op.)

13. Appeal and Error--Review--Admissibility of Evidence--Sufficiency of Objection.

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 ally 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 par. 5, Op.)

14. Same--Reversal.

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.

This is a replevin action commenced in the county court of McCurtain county, on March 11, 1915, by plaintiff in error, H. C. McDonald, as administrator of the estate of Paul Stephens, deceased, to recover certain cattle from defendant in error, Roscoe Strawn. The plaintiff alleged that the cattle involved belonged to Paul Stephens, deceased, during his lifetime, and sought their recovery as a part of the assets of the estate. Defendant contended that he purchased the cattle from John Noah, nephew of Paul Stephens, as the agent of the deceased. The case was tried to a jury on April 18, 1917, and a verdict returned for defendant. The plaintiff in due time fled a motion for a new trial, which was overruled on May 7, 1917, and exception thereto saved. Notice of appeal was given and the case is here on petition in error. Reversed.

Armstrong & Jones, for plaintiff in error.

J. M. Barrett and George T. Arnett, for defendant in error.

RAMSEY, J.

¶1 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 in 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.

¶2 Thus, 2 Standard Proc. 434, says:

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

¶3 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."

¶4 Speaking for the Eighth Circuit Court of Appeals in U.S. Fidelity & Guaranty Co. v. Board of Commissioners, 145 F. 144, 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."

¶5 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 exception saved, otherwise that question cannot he 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, 83 N.E. 898 (Ohio); Wakely v. Johnson, 73 N.W. 238 (Mich.); Val Blatz Brewing Co. v. Inter-State Ice and Cold Storage Co., 143 S.W. 542. (Mo.); Home Fire Ins. Co. v. Phelps, 71 N.W. 303 (Neb.); Seeman v. Levine, 205 N.Y. 514, 99 N.E. 158; Holder v. Giant Lumber Co. 76 S.E. 485 (N. C.); Landis Mach. Co. v. Konantz Saddlery Co., 116 N.W. 333 (N. D.); Fossett v. Boswell, 117 P. 302 (Or.); Molle v. Kewaskum Mut. F. Ins. Co., 114 N.W. 798 (Wis.); Keeley v. Ophir Hill Consol. Mining Co., 169 F. 598; Penn Casualty Co. v. Whiteway, 210 F. 782; U.S. v. Diamond Match Co., 115 F. 288; ...