Error from District Court, Lincoln County; | reasonable part of said charge, which said de John H. Burford, Judge. mand the defendant has at all times refused." Action by the Chandler Cotton Oil Company | Counsel takes the position that conclusions, against the Ft. Smith & Western Railroad and not facts, are stated herein, and that the Company. Judgment for plaintiff, and defend- | court erred in overruling the general demurant brings error. Affirmed.

Charles E. Warner and Dale & Bierer, for plaintiff in error. Flynn & Ames, for defend

ant in error.

rer filed thereto. There is some dispute among the authorities as to whether or not a legal conclusion in a pleading may be reached by a demurrer under a Code which provides, as does ours, for a statement of facts consti

DUNN, J. On February 19, 1906, the Chand-tuting the cause of action in ordinary and concise language and without repetition. 31 ler Cotton Oil Company, defendant in error, as plaintiff, filed its petition in the district Cyc. 280. But, conceding the rule adopted by court of Lincoln county, Okl. T., in which the Supreme Court of the Territory of Oklahoma in the case of Smith v. Kaufman & Co., there were set forth 32 different causes of ac tion against the Ft. Smith & Western Rail-3 Okl. 568, 41 Pac. 722, to be correct on this road Company, plaintiff in error, as defend- proposition, we are yet inclined to the view ant. To this petition the defendant filed its that the averments of the petition present demurrer, in which it challenged the jurisdic-issuable statements of fact and substantially meet the legal requirements in this regard.

tion of the court and the sufficiency of the allegations of the petition to support the action. This demurrer was by the court overruled, to which exception was saved, and, after the issues were joined, the cause was tried to a jury, which returned a verdict in favor of plaintiff. Motion for new trial was filed and overruled, and the defendant in error has brought the case to this court for review by petition in error and case-made.

But two propositions remain for discussion which arise on the action of the court overruling defendant's demurrer to plaintiff's evidence and its refusal to give a peremptory instruction to the jury directing it to return a verdict in defendant's favor at the conclu

sion of all the evidence. Both of these points, as we view the record, may be considered together. No point is made in the argument of the case upon the instructions nor upon the precise amount of recovery, and the question for us to determine is simply whether there is evidence in the record reasonably tending to support and sustain the verdict. If there is, then this court cannot give relief, however much it might disagree from the conclusion

reached.

Counsel argues that the interstate commerce act (Act Cong. Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) was in force in the territory of Oklahoma, and hence under the petition filed the court was without jurisdiction to entertain this action. In this counsel are in error, as the causes of action sued on herein all arose prior to the amendment of the interstate commerce act Section 55, c. 14, art. 5, par. 704, Wilson's (Act Cong. Aug. 28, 1906, c. 3591, 34 Stat. Rev. & Ann. St. 1903, provides: "A common 584), and prior to the amendment the original carrier is entitled to a reasonable compensaact applied solely to commerce from one state tion and no more, which he may require to or territory or District of Columbia to any be paid in advance." In each of the counts other state, territory, or District of Colum- set forth in the petition plaintiff sets out the bia, but not to commerce wholly within a ter- amount which it asserts was a reasonable ritory. 1 Drinker on the Interstate Com- compensation for the service rendered and merce Act, § 40; Blackwell Milling & Elevator that the defendant wrongfully and without Company v. Missouri, Kansas & Texas Rail- authority of law charged the plaintiff a sum way, 12 Interst. Com. R. 23; Ponca City Mill- much in excess thereof; the amount charged ing Company v. Missouri, Kansas & Texas being generally practically twice the amount Railway Company, 12 Interst. Com. R. 26. asserted to be reasonable. This case arose The charging part of the petition in each of and was tried prior to the erection of the terthe counts with a change in names to fit the ritory of Oklahoma into a state, and at a specific facts was as follows: "Plaintiff fur- time when no commission or board had any ther states that the distance from Midlothian authority to correct inequalities in railroad to Warwick is 7 miles, and that a reasonable rates within the territory. It is conceded by compensation for carrying said cotton seed all who are conversant with the subject that from Midlothian to Warwick was $20.68, but no proposition is generally more difficult to that the said defendant, wrongfully and with- determine with absolute accuracy than what out authority of law, charged this plaintiff is or what is not within debatable grounds a for the transportation of said cotton seed reasonable charge for transportation. The from Midlothian to Warwick $44.87, which declaration of our statute thereon is the rule said charge this plaintiff was compelled to of the common law. Out of the experience of pay, but the payment of which was made by the people in dealing with the subject grew the plaintiff under protest; and the plaintiff the conviction that the administration of so has never in any way consented that said un-important and intricate a function could not just and unlawful charge was a reasonable with safety be left to the judgment of uncompensation, but, on the contrary, plaintiff schooled courts and juries, and that the imhas formally demanded the return of the un-portance of it was so great that the establish

it was discriminated against. For instance, from Midlothian to Warwick the distance is seven miles, and the company's rate per hundred pounds for this distance was 10 cents, while the rate from Midlothian to Guthrie, which was 38 miles distant through Warwick in the same direction, was only 72 cents per 100 pounds. The distance from Sparks to Warwick was 14 miles and the

ment of boards specially trained for the defendant was unreasonable, but also that study and ascertainment of the proper basis for a rule on this subject was necessary. These boards or commissions are generally given power to fix uniform rates and to this service they bring the skill and experience of trained minds. In the case at bar, at the time it arose and the rights of the parties established, no such board or commission with jurisdiction to deal with them existed, and the only method provided by law for the as-rate made was 12 cents per 100 pounds, and certainment of what was and what was not a reasonable compensation was in the submission of the facts involved for determination of a court and jury. That this was not the best method to secure certainty of correct results must be conceded, but it was the only method provided, and under this assignment we will now consider the facts submitted for consideration, and see whether the verdict meets with adequate support. They will be better understood by reference to the following map of Lincoln county, within which they all arose and the case was tried:

GUTHRIE

the distance from Sparks to Guthrie in the same direction and through the town of Warwick was 45 miles, and the rate made was but 8 cents per 100 pounds. The distance from Prague to Warwick is 27 miles, and the rate is 15 cents per 100 pounds, while the distance from Prague to Guthrie through Warwick and in the same direction is 58 miles, and the rate made was 81⁄2 cents per 100 pounds. It was also made to appear in the evidence, as will be seen by the map, that the county is crossed by the Chicago, Rock Island & Pacific Railway,

CHANDLER

STL & S.F.

MIDLOTHIAN

SPARKS

N

F. S. & W.

WARWICK

PRAGUE

The plaintiff in this action was located at by the St. Louis & San Francisco Railway, Chandler, the county seat of the county, en- and by the Missouri, Kansas & Texas Railgaged in the manufacture of cotton seed way. The greatest distance which any cotoil products. The towns from which it pur- ton seed purchased by plaintiff and transchased the seed carried, over which this con- ported over the line of the defendant comtroversy arises, are Prague, Sparks, and Mid-pany traveled on its line was 27 miles, which lothian, all of which are located on the line was from Prague to Warwick. All of the of the railway of plaintiff in error. It will be noticed that this line crosses the line of the St. Louis & San Francisco Railway Company at a station named Warwick, which was the place where the cars containing the cotton seed were turned over to the St. Louis & San Francisco Railway Company for delivery to the consignee at Chandler. In the proof offered the plaintiff not only

three railway companies above mentioned had a uniform schedule of rates obtaining at that time and in that county on cotton seed in car load lots, which was 7 cents for transporting it a distance of 30 miles. It is argued, therefore, on the part of plaintiff, that, while there is no fixed rule to determine a reasonable charge in all cases, still, if all the other railways of that county would have

ed at 7 cents, that it was unreasonable to charge the plaintiff rates of 10, 12, and 15 cents per 100 pounds over the same or lesser distance. The company on its part argues that a rate might be reasonable on one line and unreasonable on another, because of difference in their situation; for instance, A cause of action for assault and battery it contends that a company could afford to committed. by one as agent of another is sephaul raw material on its line where factories arate from a cause of action for a prior disconare established and where it would not only ally, and a separate cause of action against the nected assault committed by the latter personhaul the raw material, but also secure the latter for the assault by the agent must be set finished product, at a very much less rate forth in the complaint in the action against the than it could afford to haul the raw material latter for the assault personally committed by only. That in addition to this, competitive menced against the latter and his agent as joint him, or an independent action must be compoints must be taken into consideration-tort-feasors for the assault committed by the that Guthrie is a competing point, and that there is also located there cotton seed oil

such facts are set forth by way of inducement the cause, being tried, resulted as hereinbeleading up to the main charge. fore stated.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. §§ 25, 26; Dec. Dig. § 24.*]

Appeal from Circuit Court, Multnomah County; Thomas O'Day, Judge.

Action by Hattie Dornsife against L. O. Ralston. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

See 97 Pac. 713.

This is an appeal by the defendant, LO. Ralston, from a judgment rendered in favor of the plaintiff, Hattie Dornsife, for the sum

S. T. Richardson, and Q. L. Mathews, for J. M. Long, for appellant. G. B. Dimick, respondent.

MOORE, C. J. (after stating the facts as above). The plaintiff as a witness in her own behalf, in detailing the injuries which she had sustained, as described in the amended complaint, testified that after July 5, 1907, she was nervous, could not sleep, was prostrated all the time, and worried. Upon being asked by her counsel, "What caused you to worry, if you know?" she replied, over

of $750. The amended complaint on which objection and exception, "Well, it was this the recovery is based states, in effect, that trouble. He was after me all the while, on July 5, 1907, and prior and subsequent bothering me, and I just could not stand it.” thereto, the plaintiff was in the lawful pos- The defendant's counsel thereupon moved to session, in the city of Portland, of a house strike out the answer so far as it related to and certain real property, which premises events occurring after the alleged assault were inclosed by a fence having a gate there- and battery. The motion was denied, the in; that on the day named the defendant un-court saying: "I will let it stand subject to lawfully and maliciously fastened on such the charge I will give to the jury hereafter." fence and across the gate a barbed wire, The plaintiff further testified that after July thereby imprisoning in the house the plain- 5, 1907, the defendant came every few days tiff and some friends who were then visiting to her abode as if he were fixing the surher; that it became necessary for the plain- rounding fence, that he called her vile names, tiff then to remove the obstruction to the pas- and said she deserved the beating which sageway by the gate, and while she was do- she had received from his boy. Her counsel ing so the defendant cursed, assaulted, beat, then asked her: "What boy did he refer to, and shoved her against the barbed wire, if you know?" An objection having been whereby she was cut and wounded and ren- overruled and an exception allowed, the witdered sick and disabled, and in consequence ness, referring to the defendant, replied: thereof experienced and now suffers great "His son. Q. What had his son done? A. pain and mental distress; that by reason of He had been down there and assaulted and such wrongful acts the plaintiff was com- pounded me." The defendant's counsel then pelled to, and did, employ a physician and inquired: "Is that in this controversy here?" was obliged to pay his reasonable charge of The court, answering, said: "In your open$50, and also paid the further sum of $10 ing you stated it to the jury." The defendfor necessary medicines; that in consequence ant's counsel thereupon remarked: "I said of the injuries so received the plaintiff has that she stated it was trouble that the boy been damaged in the sum of $10,000, and has made that she was suing the old man for. been obliged to pay the reasonable sum of The Court: I can better deal with that, $60 for medicines and medical treatment, when I come to submit the case to the jury. wherefore she demands a judgment for $10.- I think the whole transaction should be allow060. A demurrer to the amended complaint, ed to go in at this time." An exception to on the ground of a misjoinder, in that a such remark having been taken, the direct cause of action for damage to property was examination of the plaintiff was resumed as improperly united with one for injury to the follows: "Q. Go ahead in your own language person of the plaintiff, and also for injury to and state all about that, about this son and the persons of her guests, was overruled, his treatment of you." An objection to the whereupon an answer was filed denying gen- inquiry on the ground that it was incompetent erally each allegation of the amended com- and immaterial having been overruled and plaint, and for a separate defense averring in an exception allowed, the witness replied: substance that at all the times stated in the "He was down there a good deal and he complaint the premises therein described would-he did lots of insulting—he just-I were owned by Tyler Woodward, who gave could not hardly get outside, or go out of the defendant permission to enter upon and doors, but he would just keep after me and fence the land; that, pursuant to such li- call me all kinds of names, and threaten me, cense, he built a fence around the house oc- too, and he was down there on two different cupied by the plaintiff without her objection occasions and threatened me. Q. After? A. and on the lines suggested by her, which acts Yes, sir. Q. After this wire fence was put constitute the conduct so complained of as up or before? A. It was after." The deto the fence. A reply put in issue the alle- fendant's counsel then moved to strike out gations of new matter in the answer, and the answer, but, the motion having been de

nied and an exception saved, the plaintiff | the plaintiff. Breitenbach v. Trowbridge, 64 was further asked by her counsel: "Was Mich. 393, 31 N. W. 402, 8 Am. St. Rep. 829. this the same assault which Mr. Ralston, The subsequent assault made by the son upthe defendant, informed you that-that he on her, however, does not appear to have been was glad of?" Over objection, she, referring a continuance or a part of the original tresto the defendant, replied: "He said when pass by the defendant, nor is it manifest that the boy pounded me: "That is what you the latter was present, aiding or abetting the need.'" The plaintiff, upon further testify- injury inflicted by the son. The malice of the ing that in the year 1907 she caused the de- son could not therefore be imputed to the defendant's son to be arrested on a charge of fendant (Williams v. Gaines, 43 Tenn. 240), assault and battery, but that on trial there- and if the evidence of the defendant's declaof he was acquitted, was asked by defend- rations were offered for the latter purpose ant's counsel: "It is the same assault you they were inadmissible. If this cause had have reference to in which he was tried and been based on the assault and battery assertdischarged down at the court after you had ed to have been committed by the son as the a trial? A. Yes, sir; in September. Q.agent of his father, and the damages resulting He was discharged, wasn't he? A. Well, therefrom were undertaken to be recovered I — " Plaintiff's counsel here interrupted from the latter severally-which form of acthe witness, directing her as follows: "Tell tion is maintainable (1 Cool. Torts [3d Ed.] all about it now. Tell the jury all about it." 224)-the question of the father's ratification Defendant's counsel thereupon said: "I ask- of the son's conduct might thus have become ed if he was discharged. You brought it out very material, but that issue is not involved in the first place about the assault. Plain- herein. It is possible that the son's assault tiff's Counsel: You brought it out in your may have been induced by the father's direcopening statement. Defendant's Counsel: I tion, but if such were the case, before an inam perfectly willing to try that. Plaintiff's ference thereof could have been deduced, a Counsel: So are we." The injury indicated separate cause of action against the father in the amended complaint and for which should have been set forth in the amended damages are demanded is alleged to have complaint, or, to render him liable for the been sustained on July 5, 1907. It appears hurt, an independent action should have been from plaintiff's testimony, which was admit- commenced against the father and the son as ted over objection and exception, that after | joint tort-feasors to recover the damages susJuly 5, 1907, the defendant's son also assault-tained in consequence of the subsequent ined and beat her, and that the defendant, re- | jury, for in such case both would be liable ferring thereto, told her she deserved the jointly because of their relation as principal beating thus received. and agent. They were united in the same wrongful act resulting in the same injury. 1 Cool. Torts (3d Ed.) 252.

The defendant's counsel, having stated the grounds of his objections when they were interposed, maintains that errors were committed in permitting the plaintiff to tell the jury what she asserted the defendant said to her in relation to the assault made upon her by his son, and in allowing her to detail the beating which the latter gave her, after she is alleged to have been injured by the father. It is argued by plaintiff's counsel, however, that it is reasonably to be inferred from the conduct of the defendant's son towards the plaintiff that such acts were prompted by the suggestions, or incited by the directions, of his father, who did not attempt in any manner to dispel the deduction, but corroborated it by declaring to her that she had received from his son the punishment which she merited; that the defendant, thus having knowledge of his son's acts, ratified them; and that the declarations so made to the plaintiff were admissible as tending to show the temper of the defendant toward her. The remarks attributed to the defendant after July 5, 1907, to the effect that he reviled the plaintiff and told her she deserved the beating she had received from his son, were probably admissible as tending to show his animus toward her, and thus affecting his credibility as a witness; but they were incompetent to prove malice at the time of the alleged assault and battery committed by the defendant upon

The opening statement made by defendant's counsel cannot render the testimony relating to the assault and battery committed by the son upon the plaintiff after July 5, 1907, admissible, for, if such a rule were to prevail, it would necessarily follow that formal pleadings in a court of record could be obviated, a requirement which cannot be dispensed with. It will be remembered that the defendant's counsel, referring to the conduct of the son towards the plaintiff, remarked, "I am perfectly willing to try that," to which plaintiff's counsel replied, "So are we." The observation of defendant's counsel last quoted was made after all the testimony so objected to had been received. As this testimony could have been admitted if no objection thereto had been interposed, so also all objections noted could have been withdrawn after the testimony had been received, but in the latter case the waiver ought to be so specific as to leave no doubt on the subject, and in our opinion the alleged renunciation is not so definite as to warrant that conclusion.

A careful examination of the bill of excep tions leads to the determination that the defendant was prejudiced by the admission of testimony relating to his son's conduct towards the plaintiff after July 5, 1907, and that an error was committed in this respect,