Wilson v. Sherman

• Decision Date: 25 November 1969
• Docket Number: No. 42266,42266
• Parties: Letta WILSON, Adah Wilson, Addie Wilson and Beecher Wilson, Plaintiff in Error, v. Delbert SHERMAN, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 606

461 P.2d 606

Letta WILSON, Adah Wilson, Addie Wilson and Beecher Wilson, Plaintiff in Error, v. Delbert SHERMAN, Defendant in Error.

No. 42266.

Supreme Court of Oklahoma.

Nov. 25, 1969.

Appeal from the District Court of Coal County; Honorable Lavern Fishel, Trial Judge.

George & Kenan, Oklahoma City, for plaintiffs in error.

Dennis H. Petty, Dick A. Blakeley, Coalgate, for defendant in error.

LAVENDER, Justice.

This appeal arises out of an action by the defendant in error, Delbert Sherman (hereinafter called plaintiff) against the plaintiffs in error (three of whom are sisters, with the fourth one, Beecher Wilson, being their brother), jointly and severally, on four causes of action for actual damages in the sum of $987.50 and for exemplary damages in the amount of $300.00 in one of those causes of action and in the amount of $50.00 in another one. The cause was tried to a jury and resulted in a verdict for the plaintiff for $675.00 actual damages and $150.00 exemplary damages, for a total of $825.00. Judgment was rendered thereon, in favor of the plaintiff and against the defendants, in that amount, with interest from the date of the judgment and costs.

The allegations of the plaintiff's petition which were common to all four causes of action were that, by oral agreement with one David Imo who held a valid surface lease on a described quarter of a quarter-section of land in Coal County, Oklahoma, plaintiff sub-leased, for the calendar year 1963, all of that 40-acre tract except approximately one and one-half acres upon which a house and barn and garden plot, all under separate fence, were located. Plaintiff further alleged that his sub-leased 38 1/2 acres included approximately five acres of grass under separate fence, adjoining the excepted one and one-half acre plot; that he took possession under his sub-lease, and remained in possession and actual use, of the entire 38 1/2-acre tract for grazing purposes, until the early part of October, 1963. He alleged that at that time the defendants took possession of the excepted one and one-half acre plot, and commenced a course of harassment of the plaintiff and his livestock, particularly the livestock he kept in the separately fenced five-acre pasture, which forced him out of the actual use of the five-acre pasture for the balance of the year, and caused all of the damages complained of in his four causes of action.

His first cause of action was for $150.00 damages resulting from the unlawful distraint of three horses and a mule which plaintiff had grazing in the five-acre tract; his second cause of action was for $135.00 in triple damages for loss of use of the five-acre tract for three months; his third cause of action was for a total of $602.50 in actual damages, and $300.00 in exemplary damages, for malicious injury to a trained cutting horse; and his fourth cause of action was for $100.00 actual damages, and $50.00 exemplary damages, for malicious conduct in opening gates and leaving them open to permit plaintiff's livestock to leave his premises and run at large, forcibly driving and exciting his livestock and 'chunking' stones or clods at his livestock, and making complaints to the owner of the 40-acre tract, or his agent, concerning the plaintiff, in an effort to harass, worry, annoy, plague and pester the plaintiff into abandoning his rights under his sub-lease.

The only pleading filed upon behalf of the defendants was an answer which was limited to a general denial of the allegations of the petition.

At the close of the plaintiff's case, the attorney for the defendants moved the court to dismiss Beecher Wilson (the brother) as a party-defendant, for the reason that there was no evidence whatsoever to connect him with any damages claimed by the plaintiff. That motion was overruled. Whereupon the defendants and each of them, through their attorney, demurred to the plaintiff's evidence, and asked the court to direct a verdict for the defendants upon the ground of insufficiency of the evidence to sustain a verdict for the plaintiff and against any of the defendants. The trial court overruled the demurrer and motion.

After examining two witnesses (one of whom was one of the three sisters involved as defendant), the defendants' attorney announced that they rested, and the plaintiff's attorney made a similar announcement. The cause was then submitted to the jury, without any question concerning the sufficiency of the evidence being raised by the defendants' attorney, and without any exception being taken by either side to any of the court's instructions to the jury.

In fairness to defendants' attorneys who appear in this court, we point out that they did not represent the defendants in the trial court.

One of the four propositions advanced by the defendants in this court (their second proposition) is that the trial court erred in ruling inadmissible two cancelled checks 'offered' in evidence by the defendants. The transcript of the proceedings on the trial does not indicate that either check was offered in evidence, and copies thereof are not included in the transcript. The defendants' brief, as well as a statement made by the trial court at the time of sustaining the plaintiff's objections to the introduction of these checks, indicates that one of them bore the notation 'For butane system and furniture,' and the other one bore the notation 'For possession till January 1, 1964,' and the defendants' brief states that both checks were drawn on a joint account of the three sisters and were payable to Mrs. J. D. Imoe. The case-made discloses that the trial court's order for a pre-trial conference on a certain date provided, among other things, that counsel produce at the conference, for identification, examination and discussion, all exhibits which they intend to offer in evidence at the trial, and that, unless an exhibit has been so identified, it shall not later be offered in evidence at the trial, except for good cause shown. Counsel for the defendants appeared at the pretrial conference, but did not produce any exhibits for identification,...