Mid-West Insurance Co. v. Shrader

Opinion by LOGSDON, O. Plaintiff’s first assignment of error questions the correctness of the court’s action in overruling its demurrer to the answer of the defendant. That paragraph of the answer to which the demurrer was directed is the paragraph alleging fraud and misrepresentation, and in that paragraph defendant alleged the authority of the agent, Osborn, and the fraudulent and false nature of the representations made by him to induce the execution of the notes, and alleged the reliance of the defendant upon such representations. If the agent in making such representations acted beyond the scope of his authority this would be a matter of defense, but- for the purpose of the demurrer these allegations of the answer are admitted to be true, and since, if they were true in fact, they would constitute a complete answer and defense to plaintiff’s claim, the action of the court in overruling the demurrer was - without error. Only one other assignment of error is presented and argued in the brief of plaintiff, and that assignment relates to the admission and exclusion of certain testimony. However, plaintiff closes his brief with this statement: “As several of the reasons for error assigned in the petition "in error come under one head, we have attempted to discuss them here together and in no sense waive any assignment of error.” This statement of plaintiff is all-embracing, and since the first assignment of error complains of the overruling of the motion for new trial, which is also all-embracing, the remaining errors complained of will be considered under this assignment. This case was tried to the court without the intervention of a jury and the court made oral findings of fact which are incorporated in the case-made. These findings of fact by the court have been read and considered, and it cannot be said from an examination thereof that the same are not authorized and justified by competent evidence admitted and considered by the court. In cases tried to the court without a jury, where complaint is made that incompetent evidence was admitted, unless it is shown and clearly pointed out wherein such in *19 competent evidence was considered and used by the court in making its findings, no reversible error is presented unless it can be said upon the whole case that there was no competent evidence in the record to authorize the findings of fact made by the court and to sustain the judgment based thereon. In the case of Insurance Co. of North America v. Cochran, 59 Okla. 200, 159 Pac. 247, this court said: “Where error is predicated upon the introduction of incompetent evidence, it must appear that the trial judge relied upon such incompetent evidence before the cause will be reversed; and where the conclusions of fact and of law fairly show that such evidence was not considered, its admission will be held not prejudicial.” To the same effect are the following: Stone v. Spencer, 70 Okla. 85, 191 Pac. 197: American Fidelity Co. v. Echols, 56 Okla. 228, 155 Pac. 1160; Moore v. A., T. & S. F. Ry. Co., 26 Okla 682, 110 Pac. 1059; Gernert v. Griffin, 28 Okla. 733, 116 Pac. 439. In such cases the oral findings of the trial court preserved in the -record are strongly persuasive, and alleged error in the exclusion of evidence must clearly point out the materiality of such excluded testimony and must show wherein such excluded testimony would have changed the result and necessitated different findings of fact had it been admitted and considered by the court. Unless this is done a judgment authorized by competent and material evidence shown in the record will be sustained, and error, if any, in the exclusion of such evidence will be deemed harmless. Browning v. Atkins, 10 Okla. 536, 62 Pac. 281; Funk v. Hendricks, 24 Okla. 837, 105 Pac. 352; Mullen v. Thaxton. 24 Okla. 643, 104 Pac. 359; Moore v. A., T. & S. F. Ry. Co., 26 Okla. 682, 110 Pac. 1059; Nat. Bank of Commerce v. Fish, 67 Okla. 102, 169 Pac. 1105. Upon a consideration of the whole case as presented by the record before this court no error is shown prejudicial to the substantial rights of the plaintiff, and the judgment of the trial court should, therefore, in all things be affirmed. By the Court: It is so ordered.