Berch v. Carter

1926 OK 511, 247 P. 43, 118 Okla. 227, 1926 Okla. LEXIS 881

• Court: Supreme Court of Oklahoma
• Decided: June 1, 1926
• Docket: 16762
• Status: Published

Opinion

Opinion by

THItEADGIIB, O.

On April 28, 1924, plaintiff in error, as plaintiff, commenced this action against the defendants in error, as defendants, to recover damages for certain trespasses against her hotel and guests in Marlow. She alleged, in substance, that she had invested about $48,000 in the •hotel and furniture, and was malting $750 per month from the rooms -and for meals of the: cafe; that on or about January 22, 1924, and prior thereto, the defendants entered into a colnspiracy, for the purpose of injuring plaintiff’s hotel business, to force her to trade her hotel property to the def-ondanc G. W. Carter for property he was offering in exchange for said property; that in pursuance of said conspiracy, and following a tragedy of the death of her husband and a negro porter in the lobby of the hotel by a mob, defendants did phone to plaintiff’s place of business -and did go re- plaintiff's place of business and did shoot off firearms in front of plaintiff’s place of business, and by their acts, threats, orders, and intimida-tions, oh or about January 22, 1924, did cause p-lindiitiff’s guests and patrons to quit and leave the- hotel in the nighttime, and did almost break up -and destroy her business, and did force and compel her to remain away from lior place of business at nights for fear of great bodiily harm'; that her business was damaged thereby $10,000, and the defendants were lia-blle to her ior said damages. She further alleged that the said wrongful acts of the defendants caused a depreciation of the value of the said hotel property in the sum of $10,000. She further stated that the said wrongful acts caused her to suffer a breakdown in health to her damage in the sum of $5,000. She pleads that the said acts of (he defendants were malicious, and she should have punitive damages in, the sum of $10,000. Defendants filed a motion to make more definite and certain, which was overruled, then filed a demurrer to the petition, which was overruled. Thereupon defendants filed answer consisting, first, of general denial, then they pleaded as a defense that the property described in plaintiff’s petition was operated for several years by the plaintiff and her husband, A1 Berch, deceased, as a hotel, and that for a long time prior to the death of- her -sarid husband and to! the occurrences related in -her petition, said hotel property bore a bad reputation for law and orden:, and t-hat gambling -and drinking were permitted upon said premises, and, that said prqmises had been raided a number of times by the officers of Stephens county, and arrests had. been made of parties gambling on said premises, and that, if said property had depreciated in value, the same was not due to acts upon the part' of defendants, but the manner in which said hclto'l property was conducted by plaintiff prior to the oeeurr«nces which plaintiff alleged as a cause of action in the case. There was a reply consisting of a general denial, and upon these issues the cause was tried March 12, 1925, to a; jury and resulted in -ai judgment in favor of the plaintiff in the sum of $950, and from this judgment plaintiff has appealed, asking for a reversal and neiw trial. 'She says she should have recovered a greater sum and would have recovered a greater sum if the court had not permitted the introduction of evidence which was incompetent, irrelevant, and immaterial and prejudicial to her rights.

There is but one question involved in the appeal. In trying the case, the court permitted defendant's. to introduce evidence, over the objection of -plaintiff, to- prove that the hotel had a bad reputation for law and order as they had alleged in their answer. Plaintiff says this evidence was incompetent and tended to prejudice her cause with the jury. It may. have caused them to arward less damages than they otherwise would, hut can we say, as a matter of law, that this evidence -was illegal under the issues -as made tip toy tlie pleadings!? Defendants, in their answer, pleaded that the hcitel had a bad reputation for law and order, and that if the property depreciated in value this was the cause of it rather than any misconduct on their part. If this was not '"a* proper plea — if the issue tendered was not a legal de:ense — the defect could have been taken advantage of by motioin, demurrer, or reply. Section 270, Complied Statutes 1921. But plaintiff made no objection to th? answer except by a general denial reply, and this was not sufficient to raise the question of the illegality df had reputation as a defense in the case. The general rule as stated in 21 It. O. L. page 567, sec. 123, is asl follows:

“A person answering a complaint, if the ■answer is a general denial, admits for the purpose of the trial, that the "acts pleaded in the complaint stated a good cause df action.”

This rule would lie applicable to the answer the same as to the complaint or petition. The same prinefpl-ei was involved in the case of Blockhans v. Killough, 97 Okla. 256. 220 Pac. 863, and ihe rule stated therein is as follows:

“Where a counterclaim for damages on account of an .alleged wrongful attachment is set up in tlie answdr. the plaintiff, by filing a reply, thereby joins issue thereon and waives the objections that such damages were not proper subjects for counterclaim In the action.”

Plaintiff does no-r. raise any question of erreffc as to the pleadings, but insists that defendants should not have been permitted to prove the bad. reputation of tlie hotel, although this was onei of the issues joined by defendants’ answer and plaintiff’s reply. In the case of Scanlin v. Barkley et al., 72 Okla. 86, 178 Pac. 674. this court has passed on this question adversely to plaintiffs contention. The rule, as stated in the first pára-graph of the syllabus, is as follows ;

“Tlie objection to certain evidence because the same is incompetent, irrelevant, and immaterial, is not sufficient to- test the sufficiency of the petition, counterclaim, or set-off. or whether it is a proper subject of litigation in the controversy, -when the counterclaim or setoff has not been -tested by demurrer, motion, or an objection to the introduction olf any evidence, on the ground that the pleading does not state a cause of action or any defense.”

We must, therefore, hold -that under the Issues as joined by the pleadings, the court committed no error in permitting the defendants toi introduce the evidence complained of, tending to prove the reputation of the hotel in controversy.

The judgment of the trial court should be affirmed.

By the Court: It is so ordered.