Wallace v. Skinner

• Decision Date: 11 January 1907
• Parties: WALLACE v. SKINNER
• Court: Wyoming Supreme Court

88 P. 221

15 Wyo. 233

WALLACE v. SKINNER

Supreme Court of Wyoming

January 11, 1907

ERROR to the District Court, Sheridan County, HON. CARROLL H PARMELEE, Judge.

Suit by Alice Wallace for personal injuries caused by an alleged wild and dangerous elk owned and kept in captivity by the defendant, Charles W. Skinner. The vicious nature of the animal was denied, and by way of separate defense a settlement of the claim sued on was pleaded. Judgment for defendant. The plaintiff prosecuted error, but the evidence was not brought into the record. The facts are stated in the opinion.

Affirmed.

M. B Camplin, for plaintiff in error.

The court should have instructed the jury what the issues were. Its failure to do so constitutes reversible error. (11 Ency. Pl. & Pr., 153-155; Blashfield on Instructions, 95; R Co. v. Eagan, 67 P. 887; Stevens v. Maxwell, 70 P. 873; Meyer v. Moon, 26 P. 40; R. Co. v Dalton, 72 P. 209; Kamm v. Sloan, 83 P. 1103; Maxwell Pl. & Pr. (5th Ed.), 430, 431; Dexter v. McCready, 54 Conn. 174; Mimms v. State, 16 Ohio St. 221.) The court is required to give such instructions upon the law as may be necessary, even without specific requests. (R. S. 1899, Sec. 3644; Ry. Co. v. Jarvi, 3 Wyo. 375; Blash. Instr., 131; 11 Ency. Pl. & Pr., 158; Maxwell Pl. & Pr. (5th Ed.), 430, 431.) Erroneously, none of the instructions placed any duty as to proof upon defendant, though he pleaded an affirmative defense. The jury should have been instructed to disregard the second defense if they found for defendant on the first defense, for though a defendant may plead inconsistent defenses he cannot have an inconsistent recovery. (Galloway v. Hicks, 26 Neb. 531.) Plaintiff's reply put the burden upon defendant as to the affirmative defense, and also as to the affirmative allegations of the first defense. Although instructions were given in the case, they are wholly inadequate to state the issues raised by the pleadings, and do not instruct upon the law, as to the issues so raised. There should have been some requirement of the defendant as to his affirmative allegations to defeat plaintiff's cause of action, and denied by the plaintiff in her reply. (Brinkley v. Dewall, 58 P. 1028; Whipple v. Preece, 56 P. 296, 298-9; 2 Ency. Ev., 794; 3 Elliott's Ev., 2076.)

The defendant does not rely upon the terms or consideration of the release set forth; but, on the contrary, upon another contract; upon different terms; a different consideration, made at a different time; the proof disputing the terms, and the expressed consideration of the paper set forth. Such allegations of accord and satisfaction he is required to establish by a preponderance of the evidence. (Simmons v. Oullahan, 17 P. 543; Board v. Durnell, 66 P. 1073; 1 Kinkead Code Pl., 130.)

Whether plaintiff had returned or offered to return the $ 250 paid to her was immaterial, and a special finding thereon was erroneously requested. (Meyer v. Haas, 58 P. 1042; Sanford v. Ins. Co., 40 P. 609; Bjorklund v. Elec. Co., 77 P. 727; 11 Ency. Pl. & Pr., 158-162.) The general verdict is in conflict with the special findings as to the release, because they refer to a different instrument from the one pleaded. Judgment should have gone for plaintiff under the special findings. (55 Neb. 656.) The submission of the special questions (without the qualifying words of the statute that said questions were only to be answered, in case the jury render a general verdict in favor of the defendant) was error. The jury were compelled to answer the questions whether they found in favor of the defendant or not. (Sec. 3656, R. S. 1899; 15 C. C. (Ohio), 355; 66 O. S., 400.) Question No. 1 is indefinite and uncertain, in as much as the case was not tried on the defendant's "amended answer," as that document was found by the court to be insufficient; but it was tried upon the "seconded amended answer"; reference therefore to any "instrument set forth in the amended answer" is indefinite and uncertain. (Woodworth v. Thompson, 44 Neb. 311.) Question No. 2 should not have been submitted, for the further reason that it assumes as proven that the said $ 250 was a payment, instead of a donation, as alleged in plaintiff's reply; and for the further reason that it states the instrument to be a release. The court erred in submitting questions number 3 and 4, as incompetent and not binding on the plaintiff; and for the further reason the court excluded testimony offered by plaintiff of one of the alleged committee that the plaintiff refused to accept the sum of $ 250 in full settlement of her claim against the defendant. Questions number 7 and 8 were incompetent and should not have been submitted, without instructions from the court defining agency and what in law constitutes employment. The court erred in submitting question No. 9, as it calls for an opinion upon the law. Questions number 10 and 12 and question No. 14 should not have been submitted, as they call for evidence, in violation of the statute. (Sec. 3655, R. S. 1899.) In short, it was error to submit these questions to the jury, without a statement of what the issues were, and without the necessary instructions upon the law to guide and assist the jury in their deliberation.

It was error to permit the jury to separate during the trial. (R. S. 1899, Sec. 3643; Cantwell v. State, 18 Ohio St. 477; Stix v. Pump, 37 Ga. 332; Richards v. Page, 81 Me. 563; Shepard v. Baylor, 5 N.J.L. 954; Nickelson v. Smith, 15 Ore. 200; 12 Ency. Pl. & Pr., 537.) It was also error to permit a story to be read to the jury by defendant's attorney which was intended to reflect upon plaintiff's character, and deprive plaintiff of a fair trial. (Ins. Co. v. Cheever, 36 Ohio St. 201; Stratton v. Nye, 45 Neb. 619; Crapsey v. Averill, 8 Neb. 151.) The release set up by defendant was at best only a receipt. (Allen v. Mill Co., 51 P. 372.) The second defense of the defendant's second amended answer does not contain facts sufficient to constitute a defense. It shows there was no claim made for which settlement is pleaded. It alleges consideration for said pretended release, other than money; namely, "other good and valuable considerations," and does not state that the plaintiff has received the same, nor allege that the defendant has performed the same, or what said "other good and valuable considerations" consist of, and does not allege that there is nothing due from the defendant to the plaintiff. The court erred in allowing the jury to consider the first defense, and in submitting to the jury any instructions relating thereto, and submitting to the jury any questions for special findings relating thereto, and the court erred in basing its judgment, or finding any conclusions upon the said findings, for the reason that the second defense admits all the facts set forth in the petition to be true. (1 Ency. Pl. & Pr., 82; 16 id., 168, 170.) Denial of liability and plea of payment inconsistent. (Id., 185; Hartwell v. Paige, 14 Wis. 49; Dale v. Burleigh, 1 Dak., 227; 46 N.W. 692; Beard v. Silgham, 49 N. Y. St. 508; 20 N.Y.S. 736; Fleishman v. Sterns, 90 N.Y. 110; Wood v. Whiting, 21 Barb., 190.) The special findings, verdict, decision and judgment are not supported by the pleadings; but are contrary to the pleadings. (Nichols v. Board, 13 Wyo. 1.)

Lonabaugh & Wenzell, for defendant in error.

Having made no request for an instruction defining the issues, the plaintiff cannot now complain. But the court did fully cover the issues in the instructions. The issues were simple, and the jury clearly understood them as shown by the special findings. Mere non-direction is not ground for new trial where there is merely an exception to a charge generally. (1 Thomp. Tr., 2341; 2 id., 2341, 2349; Hay v. Peterson, 6 Wyo. 419.)

Where the evidence is not in the record, the judgment will not be reversed on account of instructions given if, on any supposable state of facts relevant to the issues, the instructions might have been correct. (Downing v. State, 10 Wyo. 373; id., 11 Wyo. 86; Lovell v. Davis, 101 U.S. 541; Frost v. Creamery Co., 102 Cal. 525; De Hart v. Comrs., 143 Ind. 363; Wallace v. Robb, 37 Iowa 192; Cook v. Hopper, 23 Mich. 511; Day v. Raguet, 14 Minn. 273; Douglas v. Stephens, 18 Mo. 362; Parchen v. Peck, 2 Mont., 567; Rowell v. Chase, 61 N. H., 135; Berry v. Smith, 2 Okl., 345; Pryor v. City, 79 P. 240; State v. Mason, 61 P. 861; Parker v. Monteith, 7 Ore. 277; McGavock v. Ward, 3 Tenn., 403; Bass v. Alford, 22 Tex. 399; Kinsley v. Monongalia County Court, 31 W.Va. 464.) It must be presumed that the instrument referred to in the instructions was admitted by the plaintiff to have been signed by her and that she was in her sound mind; and the burden then devolved upon her to show by evidence clear, cogent and convincing that she was induced to sign the same by fraudulent representatations. (Ry. Co. v. Wilcox, 116 F. 913.) The criticism of plaintiff that the consideration was in fact $ 250 while it is expressed as one dollar and other good and valuable consideration, is without merit, as it is a release in the absence of evidence to the contrary whether the consideration was in fact $ 1.00 and other good and valuable consideration or $ 250. If from an examination of all the evidence, it is clear that an erroneous instruction was not considered in arriving at the verdict, no reversal will be directed. (Leidigh v. Keever, 97 N.W. 801; Ry. Co. v. Borson (Neb.), 94 N.W. 617.)

If it appears from the evidence that even under a correct construction the result could not have been otherwise, error is deemed harmless. (4 Curr. Law., 155; Mehuren v Stone, 37 Ohio St. 49; Quinn v. Coal Co., 76 P. 552; Wilhelm v. Donegan, 76 P. 713.) In the absence of the evidence the legal presumption is that the result...