Truskett v. Bronaugh , 4 Indian Terr. 731 ( 1903 )

Clayton, J.

The only specification of error relied upon by appellants is that the court erred in directing the jury to return a verdict for the defendants. The appellees, however, insist that this court cannot consider this specification of error, because the bill of exceptions fails to state that all of the evidence is before the court. It is undoubtedly true that unless the bill of exceptions shows that it contains all of the evidence offered at the trial it will be presumed that the verdict of the jury or the findings of the court has evidence to support it, although not set out in the record. Dean vs State, 37 Ark. 57; McKinney vs Demby, 44 Ark. 76; G., C. & S. F. R. Co. vs Washington, 49 Fed. 347, 1 C. C. A. 286; So. W. Va. Imp. Co. vs Frari, 53 Fed. 171, 7 C. C. A. 149. But in this case the following appears in the bill of exceptions: “The said plaintiff Thomas W. Truskett, to maintain the issue on his part, was sworn, and testified in his own behalf, and also several other witnesses were sworn in plaintiff’s behalf, all of whose testimony will more fully and at large hereafter appear. And the said defendants, to maintain the issues on their part, also, were, two of them, to wit, Robert L. Owen and Thomas L. Boggs, sworn in their own behalf, and also the testimonj'' of several other witnesses in their behalf were heard before the court and jury in said causes, all of which testimony so offered by defendants will also more fully and at large hereafter appear.” Then follows the testimony o’f the witnesses named and defendants. At the conclusion of the bill of exceptions the following agreement of counsel appears: “We, the undersigned, counsel for the respective parties, hereby agree that the above and foregoing bill of exceptions is correct in all particulars.” We think this sufficient, although the better practice is to set out specifically at the close of the testimony that “this is all of the evidence offered in the case.”

The only question for our consideration in this case is, did the court below err in directing a verdict for the defendants? In the case of Randall vs Baltimore & Ohio R. Co., 109 U. S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003, the Supreme Court of the United States say: “It is the settled law of this court that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such verdict, if rendered, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.” See, also, Metropolitan Railroad Co. vs Moore, 121 U. S. 558, 7 Sup. Ct. 1334, 30 L. Ed. 1022.

The court below directed a verdict for the defendants on the grounds: “(1) That there was no sufficient evidence that the cattle were diseased; (2) that there was no sufficient evidence that the defendants knew they were diseased, if that were the fact.

It is established pretty clearly that the defendants’ cattle were brought from Texas to their ranch in the Osage reservation. There is testimony to the effect that about the time they were removed from that ranch to the Cherokee Nation cattle upon the ranch were infected with and dying of the Texas fever. It is proven that the defendants drove them from their ranch to the Cherokee Nation, where they intermingled with plaintiffs’ cattle, which shortly afterwards, and in about the time that the disease would have broken out if communicated by defendants’ cattle, became infected with the disease and died of it. It is further proven that just before the defendants drove the cattle from their ranch in the Osage Nation they discussed the matter, and expressed the fear that their cattle might infect those over in the Cherokee Nation, and in such ease they might be censured and embarrassed, and they knew that the Cherokee law forbade all cattle coming from Texas from being driven into that nation at that season of the j^ear. The proof conclusively shows that after considering 'these matters they concluded to “take the chances,” and to drive them stealthily in the nighttime into the Cherokee Nation, which they did so successfully that the proof of their conduct could not be obtained for years. One of the defendants remarked shortly afterward “ that he would lose his right arm before he would give it away.”

These facts and circumstances, we think, are sufficiently strong to make prima facie proof not only that the cattle’were diseased, but that the defendants knew it. Of course, there was some testimony to the contrary; but it is lor the jury to determine the weight to be» given to the testimony, and to measure the credibility of the witnesses. This thing was done secretly, in the nighttime, so that the proof of the transaction must largely be shown by circumstantial evidence.

We are of the opinion that if it had been submitted to the jury on proper instructions and they had found for the plaintiff, it would have been the duty of the court not to have disturbed the verdict, and hence the case should have been submitted to the jury, and it was error to direct a verdict for the defendant.

Let the case be reversed and remanded.

Gill, C. J., and Raymond and Townsend, JJ., concur.