Opinion — Drumm-Flato Commission Co. v. Edmisson

DRUMM-FLATO COMMISSION COMPANY »v. EDMISSON.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA.

No. 189, Submitted January 27, 1908.—-Decided February 24, 1908,

production before the notary taking the deposition of the witness who

the not sufficient, and copies made by the notary cannot

used where the objecting party gives notice that the production of

books themselves will be insisted upon.

here may be a general rule that in actions for tort an allowance for

interest is not an absolute t, under par. 2640, § 23 of the Oklahoma

the detriment caused by, and recoverable for, the wrongful

DRUMM-FLATO COMMISSION CO. v. EDMISSON. 535

208 U. 8. Opinion of the Court.

conversion of personal property is the value of the property at the time

of the conversion with interest from that time.

Where the local statute provides, as does par. 4176, § 298 of the Oklahoma

Code of 1893, that on request the court may direct the jury to find upon

particular questions of fact, the verdict will not be set aside because the

jury fails to answer an interrogatory improvidently submitted in regard

to a fact which was only incidental to the issue.

Objections to remarks of the trial court which counsel consider prejudicial

must be taken at the time so that if the court does not then correct what

is misleading its action is subject to review.

87 Pac. Rep. 311, affirmed.

Tue facts are stated in the opinion.

Mr. James S. Botsford, with whom Mr. Buckner F . Deatherage

and Mr. Odus G. Young were on the brief, for plaintiff in error.

Mr. Elijah Robinson and Mr. Charles Swindall for defendant

in error.

Mr. Justice McKenna delivered the opinion of the court.

This is an action brought by defendant in error against

plaintiff in error for $8,000, for the conversion of 410 head of

cattle. The case was tried to a jury, which returned a verdict

for the sum of $7,436.06. The jury also returned with the

general verdict answers to special interrogatories which were

submitted at the request of the Commission Company. Judg-

ment was entered upon the verdict, which was affirmed by the

Supreme Court of the Territory of Oklahoma. This writ of

error was then sued out.

The assignments of error assail the sufficiency of the evi-

dence to justify the verdict and judgment and certain rulings

of the trial court.

1. As to the sufficiency of the evidence to justify the ver-

dict, we may say that we agree with the courts below. Upon

the questions of fact presented the evidence was so far con-

flicting as to remove the verdict of the jury and the action of

the lower courts from reversal by an appellate tribunal. The

OCTOBER TERM, 1907.

Opinion of the Court. 208 U. 8.

issue between the parties was clearly defined. Edmisson had

become indebted to the Commission Company in large amounts

of money, secured by certain notes and chattel mortgages on

the cattle which are the subject of the action.

In full satisfaction of the indebtedness the company and he

entered into an agreement on November 22. 1899,' by which

he agreed to deliver to the company 1,900 of the cattle as they

run on the range, if that number could be found, of various

ages. And it was further agreed that if, after the delivery of

that number, Edmisson should gather as many as 200 head

he should turn over 100 of them to the company, or if he de-

livered as many as 2,000 head, “any residue thereafter” was

“to be retained by said Edmisson.” Edmisson contended that

he delivered 1,700 head in compliance with this agreement and

was ready and had “rounded up” about 350 head of other

cattle and held them for a time ready to deliver to the com-

pany. These cattle, after being held for a time, were turned

' This agreement, made and entered into this 22d day of November, 1899,

by and between Drumm-Flato Commission Company, party of the first part,

Drumm-Flato Commission Company to this date.

It is further agreed by the parties mentioned that if Mr. Edmiason gathers

In witness whereof, we have hereunto set our hands the day and year

above written.

R. C. Epmrisson,

Daumm-Fiato Com. Co.,

Per A. Daum, P’t.

&

DRUMM-FLATO COMMISSION CO. v. EDMISSON. 537

208 U. 8. Opinion of the Court.

loose in a larger pasture. And Edmisson further contended

that the company, by its agents, forcibly took from his ranges

and pastures in excess of the number the company was en-

titled to under the agreement, and for this conversion the

action was brought. Edmisson’s evidence was addressed to

the proof of these contentions.

The counter contentions of the Commission Company were

that Edmisson delivered to it only 1,550 head of cattle, and

that he refused to deliver any more, and, instead of delivering

enough more to comply with his agreement, he scattered them

through the various pastures in bunches at distances of forty

or fifty miles from his range and it was with difficulty that

the company, through its agents, collected 356 head, making

in all 1,881 head. In support of these contentions evidence

was adduced and the jury rendered the verdict already men-

tioned.

2. The next assignment of error is that the court erred in

rejecting the books of account kept by the Commission Com-

pany, showing the number of cattle received and sold by the

company. In support of the contention involved in this assign-

ment of error the Commission Company relies on par. 4277

of the statutes of Oklahoma of 1893 and the case of Kesler v.

Cheadle, 12 Oklahoma, 489, and Drumm-Flato Commission

Company v. Gerlach Bank, 81 8. W. Rep. 503.

Par. 4277, § 399, is as follows: “Entries in books of account

may be admitted in evidence when it is made to appear by the

oath of the person who made the entries, that such entries are

correct, and were made at or near the time of the transaction

to which they relate, or upon proof of the handwriting of the

person who made the entries, in case of his death or absence

from the county.”

To the contention the Supreme Court of the Territory re-

plied that the entries were not part of the res geste, that be-

sides the books were not produzed, and that neither they nor

the original entries were attached to the deposition of the

witness, nor were they shown to be lost or destroyed. “We

OCTOBER TERM, 1907.

Opinion of the Court. 208 U. 8.

know of no rule of evidence,” the court said, “that would per-

mit a witness to state the entries or the contents of a book of

account unless the book were lost or destroyed.”

It is, however, contended that the books were before the

notary public who took the deposition of the bookkeeper, and

that copies of the entries were made by the notary. But when

the copies were offered as evidence they were immediately ob-

jected to as incompetent and immaterial and not the best. evi-

dence. The Commission Company was therefore put upon

notice that the production of the books themselves would be

insisted on. The notary was not trying the case, and before

the court and jury who were trying it the objections to the

copies of the entries were renewed. We think that the books

should have been produced. They were intended as independ-

ent evidence—independent of the witness from whose returns

they were made. But if it should be granted their oxclusion

was error, it is difficult to see how the Commissiva Company

was prejudiced. The persons who received the cattle at the

place they were delivered to the company, and the employé

of the company who sold them after they were received and

from whose report the books were made up, all were permitted

to testify. And it may be that the entries in the books were

inadmissible for the other reasons given by the Supreme Court.

They were not entries of any transaction relating to the cattle

between the Commission Company and Edmisson. They were

entries of sales made by the Commission Company after the

cattle had been delivered to its agent and shipped to it by that

agent.

3. Error is assigned upon the instruction of the court that

if the jury found a conversion of the property seven per cent

interest should be added to its value from the time of its con-

version, The contention is that interest can only be given in

actions by a creditor against « debtor, and that par. 2615, §7

of the Oklahoma statutes of 1893 controls. That section reads

as follows:

“In an action for the breach of an obligation not arising from

DRUMM-FLATO COMMISSION CO. v. EDMISSON. 539

208 U. & Opinion of the Court.

contract, and in every case of oppr sion, fraud or malice, in-

terest may be given in the discretion of the jury.”

The Supreme Court of the Territory rejected the contention,

deciding that par. 2640, § 23, governed the case. It provides

as follows: “The detriment caused by the wrongful conversion

of personal property is presumed to be: First. The value of the

property at the time of the conversion, with interest from that

time.” There was no error in this ruling. It may be that in

the absence of statute the general rule is that in actions for

tort the allowance of interest is not an absolute right; Lincoln

v. Claflin, 7 Wall. 132; The Scotland, 118 U. 8. 507; District of

Columbia v. Robinson, 180 U. 8. 92; Frazer v. Bigelow Carpet

Co., 141 Massachusetts, 126; but the Oklahoma statute has

made interest a part of the detriment caused by the conversion

of personal property. Other States have done the same.

4. The next assignment of error is based upon the refusal of

the court to require an answer to interrogatory number 5, as

to the number of Edmisson’s cattle the agent of the Commis-

sion Company shipped from Curtis to Kansas City.

’ To establish error in the refusal of the court plaintiffs in

error cite par. 4176, § 298, of the Civil Code of the Territory,

which provides that in all cases the jury shall render a general

verdict, and the court shall in any case, at “the request of the

parties thereto, or either of them, in addition to the general

verdict, direct the jury to find upon particular questions of

fact, to be stated in writing by the party or parties requesting

the same.”

It certainly cannot be contended that the statute requires

every interrogatory to be answered, however remote the fact

it inquires about may be from the issue. The Supreme Court

of the Territory pointed out that the fact inquired into was only

incidental to the issue, and was besides undefined and uncer-

tain as to time. The number of cattle shipped might have

some bearing or relation of proof to the number delivered,

which was the issue in the case, but under the circumstances

and conditions of the other proofs it was within the discretion

OCTOBER TERM, 1907.

Opinion of the Court. 208 U. 8,

of the court to decide whether a specific answer should or

should not have been required. Indeed, the interrogatory

seems to have been improvidently submitted, for the Supreme

Court, in its opinion, says:

“The evidence disclosed that a large number of Edmisson

cattle had been shipped to Kansas City, in various shipments.

Bryson testifies that the total number of cattle shipped was

2,578. There was no dispute on the part of the plaintiff as to

the number of cattle that were shipped. The entire contro-

versy was as to the number of cattle that were delivered by the

plaintiff to the agent of the defendant, and the number con-

verted after allowing the defendant all that it was entitled to

under and pursuant to the contract.”

5. Plaintiffs in error finally complain as ground of error of

certain remarks by the court which, it is contended, were

prejudicial. The Supreme Court replied to this assignment

of error that no objection had been taken to the remarks com-

plained of. Counsel now say that to have made objection

would have made “a bad matter much worse.” But we can-

not accept the excuse. We have examined the remarks com-

plained of, and we do not think they had the misleading strength

that is attributed to them. At any rate, it was the duty of

counsel to object to them, and if then the court made matters

worse, or did not correct what was misleading or prejudicial,

its action would be subject to review.

Judgment affirmed.