Dane v. Bennett

152 P. 347 | Okla. | 1915

In the brief on behalf of the plaintiff in error, these assignments of error are not separately discussed, but we gather from it that two grounds are urged for a reversal of the judgment: First. Because there was no evidence of the correctness of the account, or of the amount due the plaintiff; and, second, that it was prejudicial error to allow the jury to take the bill of particulars and itemized account attached thereto, to the jury room.

As to the first ground. The plaintiff testified positively that there was not a thing in the account attached to the bill of particulars that was not correct and due him, and no objection was made to this evidence. If this evidence was believed by the jury, it proved the plaintiff's case, but in the brief it is said that this was only a conclusion of the witness, and therefore was no evidence of the correctness of the account. If a timely objection had been made to the introduction of this evidence, if admitted, an exception to the ruling of the court would have saved the question, but no objection was made. In Winans v. Hare, 46 Okla. 741,148 P. 1052, it is held:

"Plaintiffs assign as error, the admitting of certain exhibits in evidence, but the record shows that no exceptions were taken to the ruling of the court in admitting this evidence, and this court cannot therefore consider this assignment."

In Eichoff v. Russell, 46 Okla. 512, 149 P. 146, it is held:

"Whether the court erred in the admission of testimony will not be considered, where no objections are made to the introduction of the testimony when offered."

In Reaves v. Reaves, 15 Okla. 240, 82 P. 490, 2 L. R. A. (N. S.) 353, the question at issue was whether the witness, who was also a party to the action, had been the common-law wife of one H.H. Reaves, deceased, and she was asked:

"I will ask you to state what each party said at that time with reference to the matter, Mrs. Reaves, what was said by him, and what was said by you. A. Well, Mr. Reaves told me he wanted me to live with him, to take care of him and be his wife."

The court say:

"Now, as far as the record shows, no objection was made to the question or answer when given. It is true that at the close of the examination of Mrs. Reaves, the counsel for plaintiff in error 'moved to strike out from this testimony that portion of the testimony of the witness which put words concerning the contract into the mouth of H.H. Reaves, under the ordinary rule that Mr. Reaves is deceased.' Now this motion was not based upon any objection made during the taking of the testimony, and it seems to us not enough to save the point attempted to be saved by this assignment of error."

In that case the evidence was clearly inadmissible, and as clearly had an important bearing on the issue being tried, but as no exception was properly saved to it, it was held that the action of the trial court in admitting it could not be reviewed.

The case of Kasenberg v. Hartshorn, 30 Okla. 417,120 P. 956, cited by plaintiff in error, is not in point, for in that case proper exceptions were saved to the introduction of the evidence. We are therefore of the opinion that this assignment of error cannot avail the plaintiff in error.

The next ground for reversal urged is that, immediately at the conclusion of the trial, and without the knowledge of the defendant or his counsel, and without the consent or permission of the court, plaintiff's counsel, by some means unknown to the defendant, or his counsel, placed the bill of particulars, and the unverified account attached thereto, in the hands of the jury, and that they were considered by the jury in arriving at their verdict, and that the jury were materially influenced thereby. The affidavit in support of the motion for a new trial set these matters out, and as it was not contradicted, it will be taken as true.Bush v. Æna Building Loan Ass'n, ante, p. 529,151 P. 850. It was certainly highly improper for counsel to give any papers or other things to the jury without the knowledge and consent of the court and such practice cannot be too severely condemned, but under the facts as they appear in this record, can we award a new trial, and thus punish the client for the wrongful act of counsel? The amount claimed by the plaintiff was $116.30, and the verdict was for $78.50. The evidence of the plaintiff, if believed, fully warranted the verdict, and it is plain that the jury did believe it. In Independent CottonOil Co. v. Beacham, 31 Okla. 384, 120 P. 969, it is said:

"It may be, however, that the jury was prejudicially influenced against the defendant by being permitted to take with them to the jury room for their consideration the second amended petition, answer, and reply, on which the case was tried. This often has been held to be error (citing cases). The pleadings, and particularly the petition, always set out the details of the injury with a harrowing particularity which is seldom entirely supported by the evidence, and the jury may unconsciously have been misled by the statements contained in the pleadings, instead of confining their deliberations to the evidence, as was their duty. With a verdict that satisfied the judgment of the court, and a record otherwise free from error, we would be loath to set aside the verdict upon the last ground, and will not do so if the plaintiff, within 15 days after the mandate is handed down, files aremittitur for all in excess of $10,000."

In that case the complaint was that the amount of damages allowed was excessive, and it was in that connection that the court held it was error to allow the pleadings to be taken to the jury room. In the case at bar, however, the verdict was not excessive, if the jury believed the plaintiff, and, in our opinion, the record is otherwise free from error, and the verdict satisfies the judgment of this court. We cannot, therefore, hold that this was prejudicial error requiring us to reverse the judgment. Rev. Laws 1910, sec. 6005.

We therefore recommend that the judgment be affirmed.

By the Court: It is so ordered.