Schaff v. Coyle

Decision Date27 January 1925
Docket Number15514.
Citation249 P. 947,121 Okla. 228,1925 OK 65
PartiesSCHAFF v. COYLE et al.
CourtOklahoma Supreme Court

Rehearing Denied July 13, 1926.

Application to File Second Petition Denied Sept. 21, 1926.

Syllabus by the Court.

A motion to make more definite and certain is addressed largely to the discretion of the court; and its ruling thereon will not be reversed, except for the abuse of such discretion that results prejudicially to the complaining party. And where the facts sought by such motion are within the knowledge and possession of the movant, it is not error to overrule the same.

The fact that a fire which destroyed property originated from the sparks of a passing locomotive may be shown by circumstantial evidence.

Circumstantial evidence in civil cases, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than that arrived at by the jury.

In an action against the receiver of a railroad company to recover damages on account of fire caused by sparks from one of its locomotives, evidence of the setting of other fires by other locomotives is competent, where it is made to appear that they were practically identical in construction to the locomotive supposed to have set the fire.

In an action against the receiver of a railroad company for setting fire from sparks from passing locomotives, where it appears that two engines with cars passed the point of the fire at about the same time, and going in opposite directions, and both working steam and throwing cinders, and it is not alleged in the petition, nor proved which one of the engines did set the fire, such facts do not constitute an identification of the particular engine that set the fire and evidence of previous fires, set by other engines of the defendant at other and different times, not too remote in point of time, is admissible, as tending to prove that sparks or cinders emitted from the defendant's engines on the particular occasion could and probably did carry to and ignite cotton on the compress platform, and as tending to prove a possibility and consequent probability that the fire in question originated from sparks or cinders emitted from passing locomotives of the defendant.

A compress situated about 218 feet from the track and filled with baled cotton was destroyed by fire, which caught on the south side of the platform near the tracks of the defendant. The compress was open on the sides. Two engines operated by the defendant passed the compress going in opposite directions, and both working steam and throwing cinders. The wind was blowing from the direction to carry the cinders and sparks from the engines toward the compress. No other cause for the fire was suggested by the evidence of the plaintiff than that it was set by one of these engines. Sparks from similar engines running on the same track set fire to cotton on the compress platform on previous occasions held, it was not error under these facts to overrule a demurrer to the evidence, and it was not error to overrule a motion for new trial based on the ground that the evidence was not sufficient to sustain a judgment against the defendant.

Section 3851, Comp. Okl. St. 1921, providing, "Any railroad company operating any line in this state shall be liable for all damages sustained by fire originating from operating its road" is valid and constitutional, and imposes upon railroad companies and receivers of railroad companies liability for all damages sustained by fire originating from the operation of the road, whether the same be due to negligence or not.

The admission of photographs in evidence is a matter addressed to the sound discretion of the trial court, and it is not error to receive in evidence a photograph for a limited purpose where the court instructs the jury that they shall consider it for the limited purpose only.

The deposition of a witness cannot be used as evidence in the trial of a cause, where it appears that the witness is within the jurisdiction of the court, except where such witness is disabled or sick or unable to attend court, or where the parties agree to the use thereof (Comp. St. 1921, § 612).

Under section 589, Comp. Okl. St. 1921, the competency or incompetency of a child under 10 years of age to testify is a question addressed to the sound discretion of the trial court, and, unless it clearly appears that there has been an abuse of that discretion, the ruling thereon will not be disturbed.

Where a witness has testified in part and has been by the trial court declared incompetent to testify, and the trial court has advised the jury to disregard such testimony, it is not error for the court to refuse to permit the witness to be further examined or cross-examined.

Statements of the witness, Shelby Bouknight, a boy 6 years old, made several minutes after the fire started, and after the boy had gone several hundred feet to the east edge of the compress platform, and after he had been removed therefrom and taken some 50 yards from said platform, which were made in response to the inquiry, "What did you set that cotton afire for," are not admissible in evidence as part of the res gestæ, the same not being induced by the happening of the fire and the surrounding circumstances, but by reason of said accusing question.

Agency cannot be proved against another by evidence of the declarations of an agent, and, where one purports to act as agent for another, that fact of itself is not sufficient evidence upon which to submit the question of agency to the jury.

In an action of this kind, it is proper for the plaintiff to establish that the duly authorized agent of the defendant had been guilty of misconduct in attempting to establish false and perjured testimony, as an admission by the defendant that it had a weak defense.

Evidence of persons that a negro boy had made statements that he set the fire in question is mere hearsay, and is not admissible.

Where the plaintiff has introduced evidence tending to establish that a duly authorized agent of the defendant had been guilty of misconduct in attempting to establish false and perjured testimony by a certain witness, evidence of statements and declarations of said witness in harmony with said alleged false testimony would not be admissible for the purpose of showing good faith of defendant's agent, unless it be first established that said agent knew that said statements had been made, and had reasonable grounds to believe the same to be true, and that relying thereon he did the acts complained of.

Where evidence is admitted as relevant to a particular issue, the court upon proper request, should limit such evidence, by proper instructions to the particular issue upon which it is competent.

Before the court will reverse a case because of the giving or the refusal to give instructions, it must clearly appear that the instructions complained of have caused a miscarriage of justice.

Instructions in the instant case examined and held to fairly state the law applicable to the case.

A judgment will not be reversed because of remarks made by counsel in the closing argument, where such remarks were mere conclusions drawn from the circumstances surrounding the case, and from testimony admitted without objection.

Where insurance companies pay to the assured a loss occasioned by the wrong of a third party, the assured may maintain an action in his own name, or he may maintain an action jointly with any or all of the assurers paying the loss, and as trustee for the use and benefit of such companies against the wrongdoer, and recover the full amount of the loss.

It is only where the errors complained of have resulted in a miscarriage of justice, or constitute a substantial violation of some constitutional or statutory right, that this court will reverse a cause, because of the admission or rejection of evidence, the giving or refusing of instructions, or alleged errors in matters of pleading or procedure.

Additional Syllabus by Editorial Staff.

In action for damage from fire alleged to have been set by engine, in which plaintiff claimed defendant's agent sought to procure false testimony, evidence of statement of person claimed to have set fire that he had set fire before such agent took certain affidavit, not communicated to agent, was not admissible, but, having been received, instructing jury to consider it only for purpose of deciding whether defendant through its agent sought to procure false testimony was proper.

Instruction that, if defendant attempted improperly to influence witness, jury could infer that their cause was not meritorious, but was not compelled to do so, was not error.

In action for damages from fire alleged to have been set by engines, evidence of previous fires set by engines was admissible for all purposes, and restricting purpose of such evidence to showing that it was possible for cotton on compress in question to be set afire by engine was improper, but, being favorable to defendant, was not prejudicial.

In action for damages from fire set by railroad engine, instructing that defendant would be liable, regardless of negligence, under Comp. St. 1921, § 3851, was not error.

Verdict for loss from fire set by railroad engine may be based on circumstantial evidence that plaintiff was owner of cotton destroyed, and that it was destroyed by fire set by engine.

Appeal from District Court, Pontotoc County; J. W. Bolen, Judge.

Action by Ed J. Coyle and another against Charles E. Schaff, as receiver of the properties of the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Nicholson C.J., dissenting.

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