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of Newkirk in said county. The petition alleges "that on or about the 13th day of May, 1902, and for a long time prior thereto, with the knowledge of the officers and agents of the said defendant, city of Newkirk, a deep ditch had been permitted to be cut by drainage in and across Magnolia avenue, one of the streets of said city, extending across said avenue; that said ditch was of about the depth and width of 20 inches, and had theretofore been filled by drainage with very soft and yielding debris, water, and slush, so that the same presented to the observer the appearance of being about level," etc. Then follows the allegation that defendant carelessly and neg. ligently permitted said ditch to remain in said condition. It further alleges that on said day the plaintiff was riding along said street in a one-horse buggy at a slow gait; that the front wheels of the buggy suddenly dropped down in said ditch with great force, whereby the axle to the buggy was broken and the plaintiff thrown out, and her left knee and the bones and ligaments thereof were bruised, broken, and torn, whereby she suffered great pain, and the permament loss of the full use of her limb; that she employed medical attendance at a cost of $175; and prays for judgment in the sum of $10,175. To this petition defendant city answered, admitting its incorporation, and that said Magnolia avenue was one of the streets of said city, but denied all the other allegations of the petition, and alleges contributory negligence on the part of the plaintiff. The case was tried to a jury resulting in a verdict of $2,000 for plaintiff. Motion for a new trial, setting forth 11 specifications of error, was, by the court, considered and overruled, and the case comes to this court by a case-made duly authenticated.
Claude Duval, City Atty., and J. F. King, for plaintiff in error. H. B. Martin, for de fendant in error.
defending the action upon the ground, among others, of contributory negligence, and a witness, Minnie Eads, had testified that the horse drawing the buggy, which the defend. ant in error was thrown from and injured. went into a mudhole in the street, at the place where the buggy axletree broke, in a fast trot or on a lope; that there was no ditch across the street, but that there was a mudhole on the west side of the street. This testimony, if accepted by the jury trying the case, would leave the plaintiff with but little ground for recovery. The city attorney of the city of Newkirk, Mr. Hill, was afterwards offered as a witness on the beball of the defendant city, and upon his cross-examination the following colloquy is shown to have occurred: Cross-examination by Mr. Martin: "Q. Mr. Hill, are you the gentle man who trained that little girl that was a witness yesterday? A. No, sir; I am not. She was not trained. Q. She said you trained her; what do you say to that? A. She didn't say so. Q. Do you say she said you did not examine her before she went on the witness stand? A. Once I examined her, and once Mr. King. Q. Did you know that little girl was going to swear there was no ditch across this road, or water there? A. No, sir; I didn't know it. Q. You knew that was not true, didn't you? A. Well, I knew there was some water there at the time I was there. By the Court: Q. Didn't you know it was muddy? A. Yes, sir; I never talked with her about it. Q. Didn't you know what she was going to testify to here? A. Simply- Q. Answer the question. A. No, sir; I did not. Q. Isn't it a fact that you procured her to testify? A. Some one brought her to me Q. Answer that. A. No, sir. Q. You knew it was muddy? A. Yes, sir. Q. You were there the next day? A. Yes, sir; or the second day afterwards. Q. And yet you permitted her to testify that to this jury? A. Well- Q. Answer that. A. Yes, sir; Mr. King examined her. Mr. King: I want to object to the remarks of the court. The Court: What remarks? Mr. King:
Mr. King: In regard to procuring witnesses. The Court: asked him if he did procure her. By the Court: Q. Did you procure her to testify? A. No, sir; I did not. Q. You knew she was going to testify? A. No, sir; not on that point. Q. You knew it was muddy there? A. Yes, sir; on that east side. The Court: I want to ask Mr. Hill another question. Q. This statement that you did not procure the little girl-what is her name? A. Minnie Eads. Q. You did not procure her to testify to any of the facts she testified to? A. Somebody brought her to Mr. King and myself as to the speed of this rig. That is all I asked her about. The Court: I was not intending to reflect on counsel or any. thing of the kind. I only wanted him to explain that. Mr. King: I am satisfied your honor did not intend that, but I thought the jury might misunderstand it. The Court:
GILLETTE, J. (after stating the facts). There are many assignments of error set forth in the motion for a new trial and petition in error which have manifestly been abandoned by the plaintiff in error, as only four propositions are discussed in its brief, the first being refusal of the court to give instructions asked by the plaintiff in error; second, excessive verdict, appearing to have been given under the influence of passion and prejudice;.third, error on the part of the court in propounding certain questions to a witness introduced on behalf of the plaintiff in error which tended to reflect upon the veracity of a certain other witness, and the truth of such other witness's testimony; fourth, error in permitting plaintiff to prove the amount she paid out for medicine and medical attendance instead of their character and reasonable value.
We will notice the third of these propositions first. It will be remember that the plaintiff in error, defendant in the court below, was
the notion for a new trial, and grant the plaintiff in error a rehearing in said cause. All the Justices concurring except HAINER, J., who presided in the court below, and BURFORD, C. J., who dissents.
BURFORD, C. J. I concur in the conclusions reached in this case, but dissent from the rule as stated in the syllabus, it being in my judgment broader than the law contemplates.
I wanted Mr. Hill to explain that-whether he procured the girl to testify to that, or whether she was brought here in the ordinary course. I don't want the jury to understand that the court was intending to reflect upon Mr. Hill, but simply wanted him to explain that."
The objection made on behalf of the plaintiff in error as shown above is sufficient to bring the question of error here presented be fore this court for review, notwithstanding the declaration it was not intended to reflect on counsel. It is impossible to read the testimony here quoted without reaching a conclusion that the testimony of Minnie Eads was by such examination criticised as being untrue and as having been "procured," in fact false. We presume the time will never come when, in a court of justice, the receipt of testimony believed to be false, will not, by those chargeable with the conduct of the court, be received with regret, almost with horror, because an offense of this kind strikes at the very foundation of justice, and the impulse to expose it at once almost irresistible, but, in the trial of a cause before a jury, it is the province of the jury alone to weigh the testimony of witnesses, and give to it such credence as, in their judgment, they believe it entitled to, uninfluenced by the judge before whom the cause is being tried, That à trial judge may exert an influence over a jury without speaking to them, and perhaps unconsciously, by mere demeanor or conduct touching the subject under investigation, is undoubtedly true, and where such influence has been exerted appellate courts have invariably held the trial to have been errone.
The clear and unmistakable inference to be drawn from the questions propounded by the court in this case is that Minnie Eads had been procured to testify falsely in the case, and that some person, if not Mr. Hill, was responsible for it. That this would have a tendency to lessen the weight if not to wholly exclude the testimony of Minnie Eads from the consideration of the jury, or influence them adversely to its consideration, we think there can be no question, and it was therefore an erroneous proceeding in the trial of this cause.
In view of the conclusion here reached necessitating a retrial of this cause, we deem it unnecessary to pass upon the other questions presented. The amount of the verdict, whether excessive or not. is immaterial of consideration now, as well as the question of the refused instructions.
The instructions given upon the trial of the case were good law, and not excepted to. They might and possibly ought to have been more full in some of the respects as applied for by the plaintiff in error, but, as such questions are not liable to arise on a retrial of the case, we pass them without opinion.
For the error above specified, the judgment of the lower court will be reversed, and the cause remanded, with directions to sustain
(17 Okl. 532) LIMERICK V. KETCHAM et al. (Supreme Court of Oklahoma. Sept. 7, 1906.) DIECHANIC'S LIEN-\VnEN AUTHORIZED.
Where the wife is the exclusive owner of real estate, and the husband enters into an oral contract with a materialman to furnish material for the erection of a building on such real estate, the materialman is entitled to a lien upon the property for the amount of the material furnished and used in such building.
T. Note.--I'or cases in point, see Cent. Dig. vol. 31, Mechanics' Liens, SS 83, 8.]
Burford, C. J., dissenting. (Syllabus by the Court.)
Error from District Court, Oklahoma County; before Justice B. F. Burwell.
Action by A. Ketcham against Della Limerick and others. Judgment for plaintiff and defendant, Limerick, brings error. Modified
, and affirmed.
This action was brought in the district court of Oklahoma county by A. Ketcham against Della Limerick, D. E. Rice, Harry Harrey, and William Rice, to recover the sum of $272.62, together with interest and costs, alleged to be due for lumber and material furnished for the construction of a residence, and for the foreclosure of a mechanic's lien. The defendant, Della Limerick, admitted that she was the sole and exclusive owner of the lots upon which the building was constructed, but denied all the other allegations contained in the petition. The case, with the consent of the parties, was referred to a referee to report his findings of fact and conclusions of law. In due time the referee heard the case, and after hearing all the evidence on behalf of the plaintiff, the defendant Della Limerick demurred to the evidence, on the ground that the plaintiff had failed to prove a cause of action against her. The demurrer was overruled, and she elected to stand thereon. Thereupon the referee made his findings of fact and conclusions of law, which were confirmed and approved by the court, and a personal judgment entered against the plaintiff in error for the sum of $326, and decreeing a foreclosure of the mechanic's lien. TO which findings, ruling, and judgment of the court the defendant, Della Limerick, excepted and she brings the case here for review.
Snyder & Clark, for plaintiff in error. Heury H. Howard, for defendant in error Ketcham.
HAINER, J. (after stating the facts). Two questions are presented for our consideration. They are (1) that the evidence was insufficient to sustain the findings of fact of the referee; and (2) that the court erred in rendering i personal judgment against the plaintiff in error.
In our opinion, the evidence was sufficient to sustain every material finding of fact made by the referee. Hence, the demurrer to the evidence was properly overruled. And the law is well settled that where there is suffiient evidence to sustain and uphold the findings of a referee, that such findings of fact will not be disturbed by the appellate court. In Erisman 1. Kerwin, 8 Okl. 92, 56 Pac. 858, this court said: “The findings of the referee must be regarded by the court as having the same force and weight as the verclict of a jury, and should not be disturbed, unless clearly against the weight of the evi(lence."
And in IIarper v. IIendricks, 49 Kan. 718, 31 Pac. 734, the Supreme Court of Kansas held that: “Where a cause is referred to a referee, with the consent of all the parties, to hear the same, and to make his report of the facts and the law, and such report is afterwards confirmed by the district court, the judgment will not be set aside as against the evidence, although that is greatly conflicting, if there is sufficient to sustain the findings of fact upon which the judgment is rendered." But, in our opinion, the findings of fact of the referee did not justify the court in rendering a personal judgment against the plaintiff in error..
Section 1527, p. 870, of the statutes of 1893, provides as follows: “Any person who shall, under contract with the owner of any tract or piece of land, or with the trustee, agent, husband or wife of such owner, furnish material for the erection, alteration or repair of any building, improvement, or structure thereon; or who shall furnish or performi labor in putting up of any fixtures or machinery in, or attachment to, any such building, structure, or improvement; or who shall plant any trees, vines, plants, or hedge in or upon said land; or who shall build, alter, or repair, or furnish labor or material for building, altering or repairing any fence or footwalk in or upon said land, or any sidewalk in any street abutting said land, shall have a lien upon the whole of said piece of tract of land, the building and appurtenances, in the manner herein provided, for the amount due to him for such labor, material, fixtures, or machinery. * *” The Supreme Court of Kansas, in construing this identical statute, in Bethell v. Chicago Lumber Co., 39 Kan. 230, 17 Pac. 813, says: “The language used in this statute is broad enough to include all contracts, made by the husband or wife of the owner of the property for the purchase of
material, or the erection of improvements thereon; and when a contract is made, and the material furnished or improvements made, the party making or furnishing such improvements is entitled to a direct lien against the property. It is true the husband might contract for the material as a contractor, in such manner that the person furnishing material thereunder would be entitled only to a subcontractor's lien; but, when material is furnished under such circumstances, there ought to be some knowledge conveyed to the party furnishing the material of the existence of such a contract. Where the husband of the owner of the property purchases material, which the statute provides he may do, the person furnishing the material under such a contract may presume, and he has a right to do so, that it is furnished to the husband for the wife, to be charged to her and upon her property, and has a right to file a lien to secure its payment. The findings show that the plaintiffs, defendants in error, had no knowledge of any contract by and between Annie Bethell and her husband in relation to the erection of these improvements. The want of this knowledge continued until after the time had expired in which a subcontractor's lien could have been filed against the property. It is true that a person dealing with an agent must at his peril know the rights of the agent in the premises; and, if this contract had been made with any person other than the husband, this lien could not be upheld; but as the husband, under the law, has the right to contract, this rule cannot be applied to this case. The parties can rely upon the presumption that they were not dealing with the husband as agent, but as owner, under the statute. If the claim of the defendants can be upheld, then the way is left open for great wrongs and frauds to be perpetrated. A contract is entered into between husband and wife. No disclosure is made of the extent of that contract. Material is furnished. Afterwards, when the time for filing a subcontractor's lien has expired, a contract is produced under which the building was erected; the wife receiving the benefit of the transaction, and the husband and wife thereby defeating the lien law.” The findings of fact of the referee, as well as the evidence, entitled the plaintiff to a lien upon the property, and bring the case clearly within the letter and spirit of our statute.
It follows that the court erred in rendering a personal judgment against the plaintiff in error. The judgment of the district court is hereby modified to that extent.
BURWELL, J., who presided in the court below, not sitting. All the other Justices concurring, except BURFORD, C. J., who dissents.
(17 Okl. 156)
in having been disallowed by the administraLOGAN COUNTY BANK v. BEYER. tor of said estate, as well as by the probate
court of Logan county, Oklahoma Territory, (Supreme Court of Oklahoma. Sept. 5, 1906.)
this action to be tried upon the issues made 1. TRIAL-OBJECTIONS WAIVED.
by the pleadings in this action, the same as In an action on a promissory note against an administrator, where a stipulation is entered
if the same had been commenced by the into containing the recitation that “the claim said Logan County Bank against Arthur A. of the" plaintiff "for the amount sued on herein
Beyer as aclministrator of said estate." The having been disallowed by the administrator of said estate, as well as by the probate court of
case being tried before a jury, the stipulation Logan county, * * * this action to be tried
was offered in evidence and admitted. as upon the issues made by the pleadings in Three assignments of error are contained this action the same as if" commenced originally
in the petition in error and argued in the "against the administrator," and the court, in
brief: First, that the court erred in admitadmitting the stipulation, makes the statement that it would hold that the stipulation did not ting evidence to dispute the terms of the estop the defendant from offering evidence to stipulation; second, that the court erred in show that the claim was not presented, which
submitting to the jury the question as to statement is excepted to, and thereupon evidence is offered by plaintiff to show that said
whether or not the claim sued upon had! claim was presented to the administrator and been presented and disallowed; and, third, rejected, and by the defendant in denial of
that the court erred in overruling the motion such facts, and no objections are made to such evidence nor exceptions saved, and where no
for new trial. The first two assignments of exceptions are saved to the instructions of the
error are practically one and the same, and court, submitting to the jury the question of the third brings to the attention of this court whether or not said claim was in fact pre the fact that the first two questions were presented and acted upon, held, that any error committed by the court in its announcement as to
served in the record. what its ruling would be when the evidence was The contention of the defendant in error in fact offered will, under such circumstances, is, first, that the stipulation was not one be deemed to be waived.
that admitted or agreed that the claim had 2. TRIAL-SPECIAL VERDICT-FAILURE TO ANSWER INTERROGATORIES.
been presented to the administrator and disWhere two issues are submitted to a jury
allowed, but contained merely a recitation for their determination, and a special finding is
of hat fact, and that the agreement conreturned as to one in favor of the defendant, taineil in the stipulation was simply that and a general verdict is also returned in favor of the defendant, this court cannot say that
an order of revivor might be made; second, each of the issues submitted was not found by
that the adivinistrator had not the power to the jury in favor of the defendant.
bind the estate by stipulation agreeing that [Ed. Note.-For cases in point, see Cent. Dig. the claim had been presented when it had vol. 46, Trial, $S 849-854.]
not, and binding the estate thereby. Section (Syllabus by the Court.)
1629, Wilson's Ann. St. 1902, provides: "If Error from District Court, Logan County;
an action is pending against the decedent at before Justice Jno. H. Burford.
the time of his death, the plaintiff must in Action by the Logan County Bank against
like manner present his claim to the execArthur A. Beyer, administrator of A. G.
utor or administrator for allowance or reJones. Judgment for defendant, and plain- jection, authenticated as required in other tiff brings error. Affirmed.
cases; no recovery shall be had in the ac
tion unless proof be made of the presentation H. B. Martin and D. M. Tibbetts, for plain- required.” It is conceded by the plaintiff
. tiff in error. Laurence & Huston and U.
in error that this statute would require that M. Jones, for defendant in error.
the claim be presented to the administrator
unless by the terms of the stipulation the PANCOAST, J. This action was commen proof of that fact was rendered unnecessary. ced in the district court of Logan county by At the very beginning of the introduction of the plaintiff in error against A. G. Jones the evidence, when the stipulation referred upon a promissory note to recover the sum to was sought to be introduced, an objection of $300 and interest. Thereafter Jones died, was raised by the defendant below to its inand Beyer was appointed administrator of troduction, upon the ground that the adminthe estate, after which the action was re istrator could not bind the estate by any vived in the name of the administrator. Fol recitation in the stipulation that something lowing that, a stipulation was entered into had been done which never had been done, between the parties as follows: "It is here and that the stipulation was not proof that by stipulated and agreed by and between the the claim ever had been presented to the proLogan County Bank, plaintiff, and Arthur A. bate court or to the administrator and actBeyer, administrator of the estate of A. G. ed upon. The court, however, let the stipulaJones, deceased, as follows: First, that an tion go to the jury as evidence for what it order of revivor be made in said action, it was worth, and at the time of the ruling being agreed that said A. G. Jones had de stated that it would hold that the stipulaparted this life, and Arthur A. Beyer has tion did not estop the defendant from offerbeen appointed as administrator of said es ing evidence to show that the claim was tate; second, that the claims of the Logan not presented, and that it would not shift the County Bank for the amount sued on here burden of proof. To this statement by the
Cort of what its ruling would be, the defendant below excepted, and proceeded with his case, and offered evidence tending to show that the claim had been presented to the administrator and disallowed. Upon the conclusion of the evidence upon that point, the plaintiff rested his case, and the defendant below proceeded with his defense upon two grounds-first, that the claim was never presented to the administrator and acted upon hiy him; and, second, that there was no (onsideration erer received for the note. These two contentions were contested quite carnestly, considerable evidence being offered upon loth sides. No objection, however, was made to the introduction of any of this evidence, Twit at the conclusion of the defendant's eriince the plaintiff moved the court to exclude from the jury all the evidence "exsept the evidence upon the issue of the potesentation of the claim to the administrafor. upon the ground and for the reason that the other evidence offered to the jury ciel not support the allegations of the an
Wer ind did not tend to show any failure rif rolsideration for the note sued on." This (nil Wils overruled by the court.
It is contenderl with a great deal of car
siitess by the defendant in error that the jaintiff in error has not preserved in the te:Orl the questions contended for, there dipinga 10 oloje:itions made or exceptions ***Vl to the introduction of evidence offered on this point, and that the plaintiff in error valot complain here. From an examination If the record, it is disclosed that the only Oljortion of any character that would tend to preserve the points now contended for was the ruling of the court when passing pull the introduction of the stipulation in evidence, its introduction being objected to tips the defendant in error, wherein the court stated that the stipulation might go to the jury for what it was worth, but it would hold that the stipulation did not estop them from offering evidence to show that the claim was not presented, and that it would not shift the burden of proof. This was a mere announcement by the court is to what its ruling would be when the evidence was in fact offered, and certainly would not relieve the plaintiff in error from the necessity of oljecting to evidence when offered, or saving his exceptions thereto when a ruling was made thereon. It would seem that if the plaintiff below intended to rely upon the stipulation. and believed that it was in fact a stipulation which would bind the adminis
trator, that he should not have proceeded in the first instance to the introduction of testimony in support of the proposition that the (laim had been in fact presented and rejected ; and, if for no other reason, the presentation and introduction of this evidence by the plaintiff below would and should be held to constitute a waiver of any possible error that the court may have made in its announcement as to what its rulings would be, and, after the plaintiff below had introduced evidence upon this point, certainly the defendant below bad a right to deny the same, and in so doing to show that in fact the claim had never been presented.
Again, it would seem that tho plaintiff below had waived this proposition, and tried the case upon the theory that the stipulation did not cover the ground, because no exceptions were taken to the instructions of the court covering the point. In instruction No. 2 the court told the jury that before the bank could recover it must be proven by a preponderance of the evidence that the claim had been presented to the administrator of the estate of Jones for allowance or rejection, and the burden of proof was on the bank to prove the presentation of the note in question, and, if it had failed to make such proof, it was the duty of the jury to return a verdict for the defendant. No exception was saved to this or any other instruction given by the court, and we are therefore forced to the conclusion that the case was tried by the plaintiff below upon the theory that it must prove the presentation and rejection of the claim. Having reached this conclusion, it follows that the question involved is not properly preserved in the record for presentation to this court. Besides all this, there were two issues submitted to the jury, and while the jury returned one special finding to the effect that the claim was not presented, yet they returned a general verdict for the defendant. There being two issues presented by the pleadings and the evidence, this court cannot say that the second issue, viz., that there was no consideration for the note, was not found by the jury in favor of the defendant as well as the first. The record shows that there was sufficient evidence to support the verdict of the jury upon either of the issues presented.
There being no error disclosed by the record, the judgment of the court below is affirmed. All the Justices concurring, except BURFORD, C. J., who tried the case below, not sitting.