Norman v. Lambert
| Decision Date | 15 May 1917 |
| Docket Number | Case Number: 5574 |
| Citation | 167 P. 213,64 Okla. 238,1917 OK 227 |
| Parties | NORMAN v. LAMBERT. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Sufficiency of Evidence--Motion for New Trial. Where the plaintiff submits his case to the jury, without demurring to the evidence or asking an instructed verdict, or otherwise legally attacking its sufficiency, the question whether there is any evidence reasonably tending to support the defense is not presented for review by plaintiff's motion for a new trial.
2. New Trial--Motion for New Trial--Construction. A motion for a new trial upon the ground "that the verdict is contrary to law," because of the insufficiency of the evidence (considered for the purposes of the case as sufficient to raise the question), adds nothing to the further ground, urged in connection therewith, that the verdict is not sustained by sufficient evidence.
3. Trial--"Verdict Contrary to Law." Ordinarily a verdict is contrary to law when it is returned in disobedience or disregard of the court's instructions.
4. Appeal and Error--Review--Instructions--Exceptions. Where, after the submission of the instructions to the jury, the court stated that both plaintiff and defendant would be allowed to object, and were entitled to an exception, to the giving of each of the instructions submitted to the jury, but no objections were made or exceptions taken during the trial, and where there was included in the court's charge numerous correct instructions of law, to which no objections were ever made, this court, in reviewing the judgment, will not consider alleged errors in a part of the instructions, because of the failure of the losing party to except, as required in section 5003, Rev. Laws 1910.
Walter L. Owen, for plaintiff in error.
A. J. Titus, for defendant in error.
¶1 The first ground urged for reversal of the judgment of the trial court is that the verdict is not sustained by sufficient evidence, and is contrary to law. At the trial plaintiff neither demurred to the evidence nor asked for a directed verdict, and it is vigorously urged that he cannot in this court raise the question that the verdict was unsupported by the evidence. It is a rule very generally followed that questions not presented in the trial court in some appropriate manner will not be considered by proceedings in error; that objections must be made in the trial court in order to reserve questions for review; also that questions respecting sufficiency of the evidence to authorize the submission of the cause to the jury must be raised by proper objection in the trial court, and will not be considered if raised for the first time on appeal; that whether there is any evidence tending to support a verdict cannot be raised for the first time on appeal. The proper mode of raising the objection that the evidence is insufficient to authorize a recovery is by demurrer to the evidence, or by motion or request for a directed verdict in favor of the party objecting, or, in some jurisdictions, by motion for a nonsuit or dismissal. As a rule, such demurrer, request, or motion is necessary in order that the objection may be considered on appeal. Muskogee Electric Traction Co. v. Reed, 35 Okla. 334, 130 P. 157; Bank of Cherokee v. Sneary, 46 Okla. 186, 148 P. 157; Reed v. Scott, 50 Okla. 757, 151 P. 484; Oaks v. Samples, 57 Okla. 660, 157 P. 739; Rutledge v. Jarvis et al., 60 Okla. 66, 158 P. 586. As counsel for plaintiff in error contends that the decisions of this court defining the proper practice in such cases have been erroneously decided, we have made independent investigation of the question, with the result that we are firmly convinced of the soundness of the rule requiring that advantage of the point be taken during the trial as held in the former opinions of the court. A great number of cases in harmony with our former opinions may be found in 3 Corpus Juris, p. 839 et seq., and Bayless on New Trials and Appeals, p. 503. The fundamental principle upon which the proceedings of a trial court are brought to this court for review is to ascertain whether such trial court erred in passing on questions presented to it during the trial, or some proceeding in connection therewith. If the questions were not raised in the trial court, and no ruling had thereon, it cannot be said that the trial court committed error. Nor can hardship arise from an observance of this rule. It is a very simple procedure for counsel either to demur to the evidence or to request the trial court to direct a verdict in their favor. When this is done, the court determines as a matter of law whether or not the motion or request should be sustained; and, if not sustained, by proper exception the court's action is saved for review. To remain passive is not sufficient, for counsel may not speculate on the result of the verdict without being bound thereby, in the event it should prove to be adverse. The second ground of the assignment, "that the verdict is contrary to law," does not appear to be based upon the claim that the jury in reaching a verdict disregarded the court's instructions, but that, on account of the insufficiency of the evidence on the part of defendant, plaintiff was entitled to a verdict in his favor "as a matter of law." We are unable to make any substantial distinction between an assignment based upon the allegation that the verdict is not sustained by sufficient evidence and where--because of insufficiency of the evidence--the verdict is contrary to law. In such circumstance the latter furnishes no additional ground for a new trial; neither does it strengthen the ground that the verdict is not sustained by sufficient evidence. This assignment, it must be kept in mind, does not deal with the court's instructions, but instead argues, as though before a trial court, abstract propositions of law, which it is claimed determined the rights of the parties under the evidence. By it we are asked to say, in effect, that notwithstanding the neglect of the plaintiff to demur to the evidence, or to ask a peremptory instruction, and thereby afford the trial court an opportunity to rule upon the sufficiency of the evidence offered by the defendant, it is our duty to examine the evidence and determine its sufficiency to support the verdict, because of the action of the trial court in refusing to grant plaintiff a new trial. Such is not the province of a reviewing court, under the circumstances disclosed by the record. Statutes authorizing trial courts to grant a new trial of an issue of fact, after a verdict of the jury, including as ground therefor that the verdict rendered is...
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