Yates v. Garrett

• Decision Date: 20 September 1907
• Citation: 92 P. 142,19 Okla. 449,1907 OK 152
• Parties: YATES et al. v. GARRETT.
• Court: Oklahoma Supreme Court

92 P. 142

19 Okla. 449, 1907 OK 152

YATES et al. v. GARRETT.

Supreme Court of Oklahoma

September 20, 1907

Syllabus by the Court.

An "expert" is one possessing, in regard to a particular subject or department of human activity, knowledge not acquired by ordinary persons.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2343.]

Where the testimony of a witness shows him to be an expert in the matter concerning which he gives his opinion, held, that this testimony was properly received as that of an expert, although he, for some unexplained reason, disclaimed being such.

Whether a witness is shown to be qualified or not as an expert is a preliminary question to be determined in the first place by the court, and the rule is, if the court admits the testimony, then it is for the jury to decide whether any, and if any what, weight is to be given to the testimony. Cases arise where it is very much a matter of discretion with the court whether to receive or exclude the evidence, but the Supreme Court will not reverse any such a case unless the ruling is manifestly erroneous.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence §§ 2363, 2395; vol. 3, Appeal and Error, § 3852.]

Error from Probate Court, Noble County; Ethan Allen, Judge.

Action by R. J. Garrett against Jerry Yates and James Yates partners as Yates Bros. From a judgment for plaintiff, defendants bring error. Affirmed.

On the 6th day of September 1904, R. J. Garrett commenced his action against Yates Bros., in the probate court of Noble county, for the sum of $990 damages which he alleged he had suffered by reason of the defendant having permitted certain cattle alleged to have been affected or infected with a contagious and infectious disease, known as "Texas Fever," to stray into the pastures of Garrett and communicate to Garrett's cattle such disease, from which it is alleged Garrett's cattle died, resulting in great loss to him. Yates Bros. having answered by general denial, the cause was tried on the 14th of November, 1904, to the court, without a jury, resulting in a judgment in favor of Garrett and against Yates Bros. for $900 and costs. On the 17th day of November, 1904, Yates Bros. filed their motion for a new trial, and on the 19th of November, 1904, said motion was overruled, and to all of which Yates Bros. duly excepted, and prosecute these proceedings to reverse said judgment.

H. B. Martin and D. M. Tibbetts, for plaintiffs in error.

Doyle & Cress, for defendant in error.

IRWIN J.

In the brief and argument of counsel for plaintiff in error, two grounds are alleged for a reversal of this case: First, that there was no competent evidence introduced on the trial to show either that Yates Bros.' cattle were infected with any contagious or infectious disease, or that Garrett's cattle contracted any such disease, or that Garrett's cattle died of any such disease; and, second, that the court erred in admitting incompetent evidence to show the presence of Texas fever in the cattle in question. Both of these assignments can be properly treated together, and the field of inquiry in this investigation is confined within a very narrow margin from the fact that only one proposition is discussed in the brief of counsel for plaintiff in error, and under the well-recognized rule of this court that where many propositions are advanced as assignments of error, and only a few of them are argued in the brief, the court will treat all that are not so argued as having been abandoned. So, in considering this case, we will only investigate and decide the propositions which are urged by counsel for plaintiff in error in their brief. Succinctly stated, this is that there was no competent evidence that these cattle died of Texas fever. All other questions that might have arisen in the trial of the case, and all other exceptions that were or might have been saved, are entirely eliminated from this opinion, because they have been treated as abandoned by counsel for plaintiff in error in writing his brief. We find, upon an examination of this case, that there were called upon this proposition five witnesses, two of whom, on their examination as to their qualifications, admitted that they had had no experience and possessed no particular knowledge of the disease known as "Texas Fever." The other three claimed to have some knowledge. Holcomb, the...