MANNFORD STATE BANK v. ARNOLD. (No. 11899.) (Supreme Court of Oklahoma. Nov. 27, 1923. Rehearing Denied Dec. 26, 1923.) (Syllabus by the Court.) 1. Justices of the peace family to the state of Colorado. The defendant owned his household effects, and one cow and calf, in addition to the attached propto dissolve the attachment, on the ground erty. The defendant later filed his motion that he did not owe the indebtedness sued for, and that the property attached was 86(12)-Overrul-exempt. The motion was overruled. In the trial of the cause judgment went for the plaintiff and against the defendant for recovery of $120, and sustaining of the attachment. Thereafter the defendant caused to be executed, approved, and filed in the case an appeal bond to the district court of Creek county. On December 21, 1916, the property levied on was released and delivered to the defendant, who soon thereafter sold the property for $200. On March 11, 1919, the plaintiff commenced his action against the defendant to recover damages for the wrongful withholding of the property between the date of attachment for its discharge, and also action for punitive damages and attorney's fee on account of the wrongful attachment. In a trial of this cause the jury returned its verdict for the plaintiff and 2. Attachment 378-Verdict for $600 for loss of use of team, and $600 as exemplary damages for wrongful levy, held excessive. A verdict for plaintiff for $600 for loss of the use of a team of horses and wagon of the probable value of about $200 for about 9 months, and $600 as exemplary damages for the alleged oppressive and malicious levy is so excessive and unjust that this court will not permit the judgment based thereon to stand. 3. Appeal and error 1026-Harmless errors against the defendant for $600 as actual damnot ground for reversal. Acts occurring in the course of the trial which do not result in injury to the party complaining, if errors, are technical and harmless. 4. Record held to support verdict. Record examined; held, that the evidence is insufficient to support the verdict of the jury. Commissioners' Opinion, Division No. 4. Appeal from District Court, Creek County; Lucien B. Wright, Judge. Action by Harrison Arnold against the Mannford State Bank. Judgment for plaintiff, and defendant appeals. Reversed and remanded. ages, and $600 as punitive damages. The defendant has appealed the cause to this court, and assigns the following errors for reversal: (1) The excessive verdict of the jury; (2) error of the court in its instructions to the jury; (3) the rejection of competent testimony offered by the defendant and excepted to by the latter. [2,4] The rule of this court is that a judgment will not be reversed on account of insufficiency of the testimony, if there is any evidence that reasonably tends to support the tion of this rule presupposes that the jury verdict of the jury. However, the applicareached its verdict from a fair consideration of the evidence introduced in the cause, and This court will follow the rule of affirming Lashley & Rambo, of Tulsa, for plaintif was not the result of prejudice or passion. in error. Thompson & Smith, of Sapulpa, for defend- a judgment, when there is any testimony ant in error. that reasonably tends to support the verdict, when it appears the jury has reached STEPHENSON, C. Heretofore and on its verdict in the course of doing substanApril 3, 1916, the Mannford State Bank com- tial justice between or among the parties to menced its action in a justice court of Creek the action. A verdict for $600 for loss of county, against Harrison Arnold, the plain- the use of a team of horses, of the probable tiff herein, for recovery of $140, as rents value of about $200 for about 9 months, is so on a store building owned by the bank. The disproportionate to the reasonable value of bank caused an attachment to be issued in such use that this court will not permit the the cause, which was levied on a team of judgment based thereon to stand. Tate et horses, wagon, and set of harness of the ap-al. v. Coalgate State Bank et al., 72 Okl. praised value of $135. The defendant filed his answer therein, alleging that he did not owe the indebtedness, and that it was the indebtedness of the Mannford Mercantile Co., a corporation. The defendant was a stockholder in the corporation, and at a previous time had been one of its officers. At the time the attachment was levied on the property the defendant was then on the public highway en route with the team and his 180 Pac. 687; Spaulding Mfg. Co. v. Holiday, 32 Okl. 823, 124 Pac. 35; Gergens v. McCollum, 27 Okl. 155, 111 Pac. 208; Bolen-Darnall Coal Co. v. Williams, 7 Ind. Ter. 648, 104 S. W. 867; Arkansas Valley & W. Ry. Co. v. Witt, 19' Okl. 262, 91 Pac. 897, 13 L R. A. (N. S.) 237. What has been said in relation to the verdict for actual damages applies to the verdict of the jury for exemplary damages. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (221 P.) The verdict for exemplary or punitive dam-, value to the debt against the corporation, the ages is so far out of proportion in its rela- plaintiff in this case was liable in the justice tion to the value of the property attached court for the account. The authorities cited and its usable value for the time withheld by the plaintiff in error do not support this from the plaintiff as to indicate that the conclusion. If the plaintiff had committed verdict was reached through prejudice or the acts charged by the defendant, the latter passion, or failure to consider the evidence along with any other creditor had ample as to the value of the reasonable use or the right under the law to secure relief. value of the property. [1] The ruling on the motion filed by the defendant in the attachment suit to dismiss and discharge the property levied upon was not res judicata, and did not finally conclude the question of the validity of the levy and any damages that might have been suffered by the defendant in the event of the wrong ful attachment. The statutes do not provide for such procedure, and, apparently for this reason, the Supreme Court of Kansas in construing a similar statute has permitted a preliminary test of the validity of the attachment anterior to the trial without the rights of the parties being concluded in the final trial of the case. This court has followed the rule of the Supreme Court of Kansas in construing the same statute. Therefore it was not error upon the part of the trial court to refuse testimony showing the action of the justice court in ruling on the motion. Shelby et al. v. Ziegler, 22 Okl. 799, 98 Pac. 989. We have carefully examined the instructions of the court, and the same are correct as applied to the record in this case. The evidence in relation to an attempted recovery for exemplary damages will largely determine and control the instructions that ought to be given in the particular case. An instruction that might be error in one case for the recovery of exemplary damages would be a correct statement of the rule under another given statement of facts. It is therefore recommended that this cause be reversed and remanded for new trial. BROACH et al. v. BELCH. (No. 14177.) (Supreme Court of Oklahoma. Oct. 2, 1923. Rehearing Denied Dec. 4, 1923.) (Syllabus by the Court.) 1. Attachment 128-Undertaking unnecessary where parties against whom attachment issued are nonresidents. that no undertaking in attachment shall be reSection 342, Comp. Stat. 1921, provides quired where the party or parties defendant are all nonresidents of the state or a foreign corporation. Held, that the parties referred to are parties defendant in attachment proceedings, or party or parties against whom necessarily include all parties defendant in the the order of attachment is issued, and do not case. Attachment 175-Attachment creditor's failure to pay mortgage not available to mortgagor. [3] The defendant complains that the court refused to permit it to show that the defendant did not direct the officer to levy upon the particular property in question. In some cases it might be proper for the defendant to be permitted to show that he did not direct the particular attachment, but in this case the evidence was that the defendant owned but a small amount of other personal property, and that the other personal property might have been insufficient to satisfy the judgment sought. We think the levy on the particular property followed as a matter of course by the plaintiff perfecting its grounds for attachment against the prop-2. erty of the defendant. In any event, as the evidence shows that the debt for which the defendant was sued was that of the corporation, the rejection of the particular testimony, at most, was merely technical error. The testimony to the effect that the debt sued on was that of the corporation, and not of the defendant, without evidence on the part of the bank that the action against the defendant on the indebtedness was the result of mistake or accident, was sufficient to go to the jury on the question of the motive of plaintiff in causing the attachment to be levied. The defendant urges that, as the evidence might have shown, or would have shown, if it had been permitted to make the showing, that the plaintiff had appropriated certain property of the mercantile corporation to his own use, and then had sufficient Biddison & Campbell, of Tulsa, for defendof the same in his possession to be equal inant in error. Section 7661, Comp. Stat. 1921, which requires the attaching creditor of mortgaged property to pay the mortgagee the amount of the mortgage or deposit the same with the county treasurer, is for the protection of the object to the levy because of the failure of mortgagee alone, and the mortgagor cannot the creditor to make payment or deposit. Appeal from District Court, Tulsa County; Redmond S. Cole, Judge. Broach and another. Judgment for plaintiff, Action by J. Ed. Belch against W. E. and defendants appeal. Affirmed. Davidson & Williams and F. A. Peek, all of Tulsa, for plaintiffs in error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes COCHRAN, J. This action was commenced necessarily include all the parties defendant in by defendant in error against plaintiffs in the case.' error to recover on a bond executed by plainIn the instant case, the attachment protiff in error to discharge attachment levied ceedings were against the nonresident defendon certain property of the Carr-Broach Com-ant, and we are of the opinion that under pany, a corporation. The parties will herein- these circumstances no bond was required in after be referred to as they appeared in the order to authorize the issuance of attachment trial court. In 1921, J. Ed. Belch commenced against the nonresident corporation. a suit against the Carr-Broach Company, a [2] As to the contention that the levy was Delaware corporation, Mark E. Carr, and L. void because the property was mortgaged and F. Broach, to recover the sum of $10,000, and the levy was made without complying with on the same day filed an attachment affidavit section 7661, Comp. Stat. 1921, it is our opinfor the purpose of procuring a writ of at-ion that this statute is for the benefit of the tachment against the property of the CarrBroach Company. The writ was issued and levied on the property of the Carr-Broach Company, and thereafter the company gave bond for the purpose of discharging the attachment, signed by W. E. Broach and G. C. Stebbins, as sureties, and upon the execution and filing of the bond the property was released from the attachment. Upon the trial of the case, judgment was rendered for the plaintiff for $8,057. This suit was then instituted against the sureties on the bond and judgment rendered for the plaintiff, from which the defendants have appealed. . [1] Defendants contend that the attachment proceedings are void because no attachment bond was given before the attachment was issued and because the property seized under the attachment writ was covered by a chattel mortgage to the Jayhawker Gasoline Company and plaintiff did not pay the amount of the mortgage debt or deposit an amount with the county treasurer before taking same under execution, and contends further that the attachment proceedings being void, there was no consideration for the execution of the bond. Section 342, Comp. Stat. 1921, provides that the order of attachment shall not be issued until an undertaking has been executed by the plaintiff and approved by the clerk; but this statute also provides: "But no undertaking shall be required where the party or parties defendant are all nonresidents of the state, or a foreign corporation." In the instant case, the Carr-Broach Company was a foreign corporation, but Carr and Broach were residents of the state, and it is contended by the defendants that be cause all of the defendants in the main action were not nonresidents a bond was required. This question was determined by the Supreme Court of Kansas in the case of Head v. Daniels, 38 Kan. 1, 15 Pac. 911, in which the court said: "We think the above-quoted clause of section 192 of the Civil Code, which provides that 'no undertaking shall be required where the party or parties are all nonresidents,' simply means to provide that no undertaking shall be required where the party or parties defendant in the attachment proceedings, or the party or parties against whom the order of attachment is issued, are all nonresidents, and does not mortgagee and not the mortgagor. Section 7660, Comp. Stat. 1921, gives the right of creditor to levy on mortgaged property, which right did not exist in the absence of statutory authority, and the provisions of the next section are for the benefit of the mortgagee. In Willson v. Felthouse, 90 Iowa, 315, 57 N. W. 878, the court said: "Acts 21st Gen. Assem. c. 117, § 1, which requires an attaching creditor of mortgaged property to pay the mortgagee the amount of his mortgage, or deposit it with the clerk of the court, is for the protection of the mortgagee alone; and the mortgagor and his assignees cannot object to the levy because the creditor failed to make the payment or deposit, if it was waived by the mortgagee." In State v. Parks, 34 Okl. 335, 126 Pac. 242, this court said: "The provisions of the statute with reference to payment of the debt to the mortgagee were waived by it in this case, and Collins could not take advantage of it." In Osborne v. Hughey, 14 Okl. 29, 76 Pae. 146, this court said: "Now, in the case under consideration it is not contended that any attempt was made by the sheriff prior to making the levy, to ascertain the amount due on these various mortgages, or to make any tender to the mortgagees, or to make any deposit for his use with the county treasurer; in fact, no attempt was made in any way to comply with the plain provisions of the statute. Hence, we think that no lien attached in this case, by virtue of the execution or the levy made thereunder, as against the rights and interests of the mortgagees. When the officer failed or neglected to pay or tender the amounts due upon these mortgages, which might readily have been ascertained by an examination of the record, the levy of the execution was illegal, and no execution lien attached, as against the rights of these mortgagees, and the legal holder thereof." While the foregoing Oklahoma decisions do not pass on the identical question before us, it seems clear from these decisions that it was the opinion of the court that the provisions of section 7661, Comp. Stat. 1921, were for the benefit of the mortgagee, and that the mortgagor whose property was levied upon It being our could not raise that question. opinion that the attachment was properly FULLER v. CARAWAY. (No. 14688.) 79 to lease to the plaintiff the premises then "It is further understood and agreed that the The plaintiff alleged that the defendant (Supreme Court of Oklahoma. Jan. 29, 1924.) agreed with him that a cool drink business (Syllabus by the Court.) 1. Contracts 245(2)-Evidence 413 Prior negotiations merged in written contract; evidence of prior or contemporaneous oral representations inadmissilbe to vary written contract. The execution of a contract in writing supersedes all the oral negotiations or stipulations concerning its terms and subject-matter which preceded or accompanied the execution of the instrument, in the absence of fraud, accident, or mistake of fact, and the representation made prior to or contemporaneous with the execution of the written contract are not admissible to change or add to the terms of the written contract. 2. Evidence 441 (4)-Petition for breach of oral covenant of written lease held insufficient. would not be conducted in the building placed Record examined; held, to be insufficient to plaintiff filed his action against the defensupport judgment for plaintiff. Commissioners Opinion, Division No. 4. Appeal from District Court, Tulsa County; W. B. Williams, Judge. Action by W. M. Caraway against Frank A. Fuller. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Biddison & Campbell, of Tulsa, for plaintiff in error. dant about May 18, 1922, which later came on for trial. After the plaintiff had introduced his evidence and rested, the defendant demurred to the evidence, which was overruled by the court, with exceptions saved by the defendant. The defendant then offered his evidence, and in the trial of the cause the jury returned its verdict for the plaintiff in the sum of $1,000 as damages to the lease, and $4,500 for damages to his business. The Luther James and T. L. Brown, both of defendant has appealed the cause to this Tulsa, for defendant in error. Heretofore and on STEPHENSON, C. June 15, 1920, the plaintiff was occupying the premises under lease owned by the defendant, in which he was conducting a drug store business. On June 6, 1919, the defendant conveyed a lot adjoining the premises occupied by plaintiff to the Oklahoma Union Railway Company. [1, 2] One of the conditions embodied by the defendant in the deed of grant read as follows: "That the property herein conveyed shall be used for the depot and not for commercial purposes." court, and among the several errors assigned is the action of the court in overruling de fendant's demurrer to the evidence. In the trial of the cause, the following proceedings were had: "The Court: lease? You are suing on a written "Mr. James: No, we are not suing on a written lease; we are suing this party for violation of his covenant that he would not go into business." The answer of the plaintiff to the court's inquiry placed the plaintiff in the attitude of undertaking to recover in this action on an oral covenant or agreement in connection with the lease held by the plaintiff on the The plaintiff alleged that on and prior to premises. The question has been before this June 15, 1920, he was conducting a profitable court several times heretofore, and the rule The execution of a contract in mercantile business on the premises then oc- uniformly applied denies plaintiff's right of cupied, and that by reason of the railway recovery. locating this depot adjacent to his store, it writing supersedes all oral negotiations or would increase his business, and render the stipulations concerning its terms and subjectpremises more valuable for the conduct of matter which preceded or accompanied the his business. The plaintiff alleged further execution of the instrument, in the absence that on June 15, 1920, the defendant offered of fraud, accident, or mistake of fact, and the proof of oral stipulations concerning the The parties will be referred to as they ap Therefore it is recommended that this cause be reversed and remanded for further proceedings in accordance with the views herein expressed. The negligence alleged in the petition is that the plaintiff was an employee of the defendant, working as a section hand, and that while working he was using a jack which was being furnished by said defendant in raising and lifting one side of the defendant's railway track, which was done by the aid of said jack and a bar; that by reason of the defective and worn and broken or bent condition of the said jack the plaintiff was injured in the following manner: That he had lifted the track a few inches and was in the act of lifting the said bar used for said purpose to catch another notch in said jack in order to lift the track to a greater height, when said jack tripped and jerked the said bar out of plaintiff's hands and threw the said bar downward with great force, and said bar so descending struck the plaintiff on the instep of his right foot, giving to the said plaintiff severe and grievous injury, SHACKELFORD and DICKSON, CC., con- thereby and then severely bruising said foot cur. GRAND v. ST. LOUIS-SAN FRANCISCO RY. CO. (No. 14660.) and breaking the bones and giving to the plaintiff permanent injury. Plaintiff further states that at the time of his injury he was in the exercise of due care and diligence working at his place of duty (Supreme Court of Oklahoma. Jan. 29, 1924.) and was injured by reason of defects in the (Syllabus by the Court.) 1. Master and servant 265(5)-Defect in instrumentalities not inferred from injury. To hold the master responsible, a servant must show that the appliances and instrumentalities furnished were defective. A defect cannot be inferred from the mere fact of an injury. There must be some substantive proof of negligence, knowledge of the defect, or some omission of duty in regard to it must be shown. 2. Master and servant 286(4)-Verdict held properly directed on evidence as to section hand's injuries by jack. The evidence in this case carefully examined, and held, that it does not disclose actionable negligence on the part of the defendant, and that the court did not err in instructing a verdict for the defendant. Commissioners' Opinion, Division No. 5. Error from District Court, Choctaw County; George T. Arnett, Judge. Action by Willie Lee Grand against the St. Louis-San Francisco Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed. aforesaid jack, which was one of the appliances used by said plaintiff in the business of said defendant, and that defects in said jack had not been remedied by reason of the negligence of the said defendant, and that the failure of said defendant to furnish to this plaintiff reasonably safe tools with which to work was the cause of said injury. Defendant's answer, in addition to a general denial, for further and separate defense averred that if the plaintiff was injured at the time and place alleged in plaintiff's petition, which is not admitted, his said injuries were due to his own negligence and carelessness and not to any negligence and carelessness upon the part of the defendant. For reply, the plaintiff denied each and every material allegation contained in defendant's answer. The case was tried before the court and jury, and at the conclusion of all the evidence the defendant moved the court to direct a verdict for the defendant, which motion was sustained, to which action of the court the plaintiff then and there excepted. Whereupon the court directed the jury to return a R. H. Stanley, of Hugo, for plaintiff in er- verdict for the defendant, to which action of the court the plaintiff then and there excepted. Judgment was rendered by the court upon the verdict of the jury. Motion for new trial was filed and overruled, to which action of the court the plaintiff at the time excepted, and gave notice of his intention to appeal to this court. For a reversal of the judgment plaintiff in error assigns a number of specifications of |