Reed v. Scott

• Citation: 151 P. 484,50 Okla. 757
• Decision Date: 20 July 1915
• Docket Number: 4992. [a1]
• Parties: REED v. SCOTT.
• Court: Supreme Court of Oklahoma

151 P. 484

50 Okla. 757

REED v. SCOTT.

No. 4992. ^[a1]

Supreme Court of Oklahoma

July 20, 1915

Syllabus by the Court.

In the absence of a motion for a directed verdict, the insufficiency of the evidence to sustain the verdict is not presented to this court on appeal. Muskogee Electric Traction Co. v Reed, 35 Okl. 334, 130 P. 157.

If there is any evidence, including every reasonable inference the jury could have drawn from the same, reasonably tending to support the verdict, this court will not reverse a case for insufficient evidence.

A jury may, if they so decide, accept circumstantial evidence upon one side, and reject positive testimony presented on the same point by the other side.

Commissioners' Opinion, Division No. 4. Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Action by Mary Scott against R. E. Reed for personal injuries. Judgment for plaintiff, and defendant brings error. Affirmed.

Chas F. Runyan and J. Fentress Wisdom, both of Muskogee, for plaintiff in error.

Bert G Wood and O. T. Gilbertson, both of Muskogee, for defendant in error.

MATHEWS C.

Action by Mary Scott against R. E. Reed. Judgment for plaintiff, and defendant brings error.

This is an action to recover damages for a personal injury, alleged to have been occasioned by the employés of defendant, who were working on the front of a certain building in the city of Muskogee, dropping a piece of iron, which struck plaintiff on the hand, causing certain injuries, for which she seeks to recover damages. Defendant answered by general denial. The parties hereto will be designated as in the court below.

The only assignment of error presented by the defendant is stated by him as follows:

"The question presented to the court upon this appeal is a simple one; it being the contention of plaintiff in error that the plaintiff below failed to prove her case, and that therefore the judgment should be reversed and a new trial granted."

An inspection of the record shows that no demurrer was presented to the testimony of plaintiff, and no motion was made by defendant for an instructed verdict at the close of the testimony. The sufficiency of the evidence to support a verdict for plaintiff was not challenged in any way until the motion for a new trial was filed. This case comes within the rule laid down in Muskogee Electric Traction Co. v Reed, 35 Okl. 334, 130 P. 157, in which case we find the following:

"Where the plaintiff permits issues joined to be submitted to the jury upon the evidence without objection and exception, the verdict on review in this court is conclusive, so far as such evidence is concerned, except as to 'excessive damages, appearing to have been given under the influence of passion and prejudice.' "

The rule appearing in that case is based upon the proposition that a motion for a new trial is for the purpose of bringing again to the notice of the court rulings of the court during the trial which were properly excepted to at the time. If the defendant did not, in some way, challenge the sufficiency of the evidence to support a verdict for plaintiff during the trial, and permitted the case to go to the jury unchallenged, then nothing was saved to present to this court. It appears that this court has never passed upon this point, except in the above-cited case; but an examination of the authorities from other states finds the same well supported. In Fassett v. Boswell, 59 Or. 288, 117 P. 302, is the following:

"In the absence of a motion for a directed verdict, the insufficiency of the evidence to sustain the verdict is not presented to the court on appeal."

From Wakely v. Johnson, 115 Mich. 285, 73 N.W. 238, we take the following:

"Although there was no evidence to sustain a verdict for plaintiff, a reversal cannot be had therefor, when defendant's counsel did not request the court to direct a verdict."

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