BOUTON v. CARSON

BOUTON v. CARSON
1915 OK 739
152 P. 131
51 Okla. 579
Case Number: 5404
Decided: 10/05/1915
Supreme Court of Oklahoma

BOUTON
v.
CARSON.

Syllabus

¶0 1. APPEAL AND ERROR -- Assignments of Error -- Sufficiency. Assignments of error contained in the petition in error which are so indefinite as not to point out the errors complained of cannot be made the basis for a different assignment of error in the brief to point out the alleged error.
2. APPEAL AND ERROR -- Instructions -- Request -- Exceptions. Where the court has given general instructions to the jury which are not excepted to, it is not ground for reversal that it did not give a special instruction when it is not requested to do so.
3. APPEAL AND ERROR--Change of Contention. A party cannot try his case in the trial court on one theory, and then ask a reversal of the judgment in this court on a theory not presented to the trial court and not raised by the pleadings.
4. APPEAL AND ERROR--Verdict--Evidence. Where the verdict of the jury is supported by evidence, and approved by the trial court in an action at law, this court will not review it.
5. APPEAL AND ERROR--Harmless Error--Examination of Witnesses. While it is not proper to ask a witness, on rebuttal, if the testimony of another witness is true, yet this is harmless error, unless it appears from the record that such question has probably resulted in a miscarriage of justice. Rev. Laws 1910, sec. 6005.

W. B. Clark and L. A. Maris, for plaintiff in error.
William H. England, for defendant in error.

DEVEREUX, C.

¶1 The first assignment of error contained in the brief is not available to the plaintiff in error in this court. He did not plead that Carson had been unfaithful to his trust, nor did he request any instruction on this question. The record shows that the defense in the court below was on the theory that Carson had not effected the sale of the land, but that this was done by Hall, Cullen & Hall, and for this reason the defendant was not liable, and, as far as we can gather from the record, the question now presented was never presented to the trial court or passed on by it, but is raised in this court for the first time. It is true that one of the grounds in the motion for a new trial is that the verdict is contrary to law, but no such ground for a new trial is provided for by our statute. Neither the motion for a new trial nor the assignments of error contain the statutory ground for a new trial for errors of law occurring at the trial and duly excepted to. In Mooney v. First State Bank of Washington, 48 Okla. 676, 149 P. 1173, it is held:

"An assignment * * * to effect 'that said judgment is contrary to law' limits the inquiry to: On the pleadings and findings, was the proper judgment rendered?

¶2 In Commerce Trust Co. v. School District, 47 Okla. 111, 147 P. 303, it is held:

"Assignments of error contained in the petition in error which are so indefinite * * * as not to point out the errors complained of, and do not direct the court's attention to any facts showing cause for reversal, cannot be made the basis for different assignments [of error] in the brief that would be sufficient to point out the alleged errors."

¶3 In our opinion, therefore, this assignment of error is first presented in the brief, and there is nothing in the record to show that it was properly assigned in the petition in error, or that it was ever presented to the trial court. In Clark v. Farmers' State Bank, 48 Okla. 592, 149 P. 1189, it is held:

"There is no rule of this court better settled than that errors not raised in the trial court will not be considered on appeal, when they do not go to the jurisdiction of the court." See, to the same effect, Wattenbarger v. Hall, 26 Okla. 815, 110 P. 911; Harris v. First National Bank, 21 Okla. 189, 95 P. 781. In Railway Co. v. McCarthy, 96 U.S. 258, 24 L. Ed. 693, in an action for damages for delaying a shipment of cattle, the defense was that it was impossible to ship the cattle by reason of a shortage of cars. Afterwards the railroad attempted to set up that the delay in the shipment was on account of the Sunday laws, but the court said, in answering this contention:

"The question made by the company upon the Sunday law of West Virginia does not, in our view, arise in this case. We have already shown that the defendant proved upon the trial that it was impossible to forward the cattle on Sunday, for want of cars. And it is fairly to be presumed that no other reason was given for the refusal at that time. It does not appear that anything was then said as to the illegality of such a shipment on the sabbath. This point was an afterthought, suggested by the pressure and exigencies of the case."

¶4 Again, if the defendant wished this theory of his case to be presented, he at least should have asked an instruction covering this point. In Chicago Live Stock Com. Co. v. Fix, 15 Okla. 37, 78 P. 316, it is held that, where the court has given general instructions to the jury on the law of the case, it is no ground for reversal, if the court failed to give special instructions, unless it was requested to do so. See, also, Robinson v. Territory, 16 Okla. 241, 85 P. 451; Moore v. O'Dell, 27 Okla. 194, 111 P. 308. The question therefore is not before us whether, under the evidence above set out, Carson was guilty of such conduct as would prevent him from recovering, but we may remark that the facts are very different from those in Plotner v. Chillson, 21 Okla. 224, 95 P. 775, 129 Am. St. Rep. 776, and Skirvin v. Gardner, 36 Okla. 613, 129 P. 729, because in each of these cases, the agent, without the knowledge of his principal, received commissions from the purchaser. The second assignment of error is that the defendant in error was not the procuring cause of the sale. In Nation v. Harness, 33 Okla. 630, 126 P. 799, it is held:

"When property has been listed for sale with different real estate agents, the agent who induces the seller and purchaser to enter into the contract is entitled to the commission, though another agent may have first brought the parties together."

¶5 There was evidence in the record to support the verdict, and, this being an action at law, we cannot review the finding of the jury, where there is evidence to support it. The last assignment of error complains of permitting the defendant in error to testify that a statement made by the plaintiff in error in his testimony was not true. The only case on this subject cited by either side is Huff v. Territory, 15 Okla. 376, 85 P. 241. In that case the objectionable questions were:

"Q. If Mr. Steve Tucker swore upon this stand that you parties all went out there from Cheyenne to this round-up about one o'clock, was that true or false? A. I don't know, sir; I did not go from Cheyenne. * * * Q. If he swore here upon this stand and in this court that he, Steve Tucker, and you and John Reed and Joe Miller and Jeff Chenoworth and Ed Woods went out to the round-up together, was that true or false? A. I did not go from Cheyenne with him."

¶6 It does not appear from the report of that case that this was rebuttal evidence, but, however that may be, the court did not reverse the case, because no exception was saved. The court, however, does very properly, in our opinion, animadvert on this style of examination, and we can very well see, under some circumstances, it might be reversible error. But is it so in the case at bar? In the Huff Case it plainly appears that counsel were insisting that the witness should testify that Tucker swore falsely when he testified that the witness was with him on a certain occasion. In the case at bar the record does not disclose any heat or improper conduct on the part of the counsel, but he asks only if a certain statement made by the defendant is true. This is very different from the facts in the Huff Case, where it is evident that counsel was trying to force the witness to say that another witness had committed perjury. While the question was improper, and such manner of examination is not to be commended, we cannot say that in the instant case it was of such a nature as to require a reversal of the judgment. Rev. Laws 1910, sec. 6005. We therefore recommend that the judgment be affirmed.

¶7 By the Court: It is so ordered.