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Sallisa w Cotton Oil Co. v. Holland.

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the elevator, as required by Pub. Acts 1909, No. 285, sec. 12, was not the proximate cause of the accident, and there could be no recovery on that ground.”

In Patton v. Texas & Pac. Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, it is said:

It is not sufficient for the employee to show that the employer may have been guilty of negligence; the evidence must point to the fact that he was. And, where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible, and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.”

In St. Louis & S. F. R. Co. v. Hess, 34 Okla. 615, 126 Pac. 760, Brewer, C., says:

"It is a well-established rule that, although a defendant may be shown to have been negligent, yet, unless the negligence so shown was the proximate cause of the injury complained of, no recovery can be had for the negligence. Neeley v. S. W. Cot. Co., 13 Okla. 356, 75 Pac. 537, 64 L. R. A. 145; Mayme v. Chicago, etc., Co., 12 Okla. 10, 69 Pac. 933; Stephens v. Okla. Ry. Co., 28 Okla. 347, 114 Pac. 611, 33 L. R. A. (N. S.) 1007; C., R. I. & P. Ry: Co. v. Beatty, 27 Okla. 846, 116 Pac. 171; Mills v. Wilmington City Ry. Co., 1 Marv. (Del.) 269, 40 Atl. 1114; Byrd v. Express Co., 139 N. C. 273, 51 S. E. 851; Marsh v. Giles, 211 Pa. 17, 60 Atl. 315; Florida C. & P. R. Co. v. Williams, 37 Fla, 408, 20 South. 558; Sullivan v. Morrice, 109 Ill.

Opinion of the Court.

App. 650; Perry v. Central R. Co., 66 Ga. 746; Stepp v. C., R. I. & P. Ry. Co., 85 Mo. 229; Louisville, N. A. & C. Ry. Co. v. Thompson, 107 Ind. 442, 8 N. E. 18, 9 N. E. 357, 57 Am. Rep. 120; Brotherton v. Manhattan Beach Imp. Co., 48 Neb. 563, 67 N. W. 479, 33 L. R. A. 598, 58 Am. St. Rep. 709; Tutein v. Hurley, 98 Mass. 211, 93 Am. Dec. 154; Patch v. City of Covington, 17 B. Mon. (Ky.) 722, 66 Am. Dec. 186; Worcester v. Great Falls Mfg. Co., 41 Me. 159, 66 Am. Dec. 217, and note 219."

In 29 Cyc. 589, the rule is stated as follows:

"As a general rule it may be stated that negligence is a fact which must always be proved and will never be presumed. The mere fact that an accident has happened does not authorize the inference of negligence on defendant's part, although it may be taken into consideration with other facts and circumstances of the case."

See, also, Patterson v. Seals, 51 Okla. 347, 151 Pac. 591; C., R. I. & P. Ry. Co. v. McCuller, 30 Okla. 178, 120 Pac. 279; Woolsey v. Ziegler, 32 Okla. 715, 123 Pac. 164; Moore v. First Nat. Bank, 30 Okla. 623, 121 Pac. 626; M. V. R. R. Co. v. Bailey, 34 Okla. 193, 124 Pac. 987; C., R. I. & P. Ry. Co. v. Watson, 36 Okla. 1, 127 Pac. 693; Hughes v. C., R. 1. & P. Ry. Co., 35 Okla. 482, 130 Pac. 592.

The case of Solts v. Southwestern Cotton Oil Co., 28 Okla. 706, 115 Pac. 776, is a case very similar to the one under discussion, and in said case it is held:

“The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance therewith.”

Salisaw ('otton Oil Co. 1. Hollinud.

In the case of M. V. R. R. Co. v. Bailey, supra, it is said:

"When there is no conflict in the evidence, and when there are no facts or circumstances reasonably tending to show that the defendant has been guilty of a breach of duty, then there is no question to submit to the jury, as the primary negligence of the defendant is not to be submitted to the jury in the absence of some evidence tending to establish it."

See, also, Phoenix Printing Co. v. Durham, 32 Okla. 575, 122 Pac. 708, 38 L. R. A. (N. S.) 1191; Solts v. Southwestern Cotton Oil Co., supra; C., R. 1. & P. Ry. Co. v. Baroni, 32 Okla. 540, 122 Pac. 926.

Applying the rule in Solts v. Southwestern Cotton Oil Co., supra, there is not enough evidence to sustain the judgment rendered; and the court committed prejudicial error in overruling the demurrer to the evidence and refusing to direct a verdict in favor of defendant.

It follows that this cause should be reversed and remanded.

WATTS, C., being disqualified and not participating, COLLIER, C., sat with Division No. 4 on oral argument, and wrote the opinion.

By the Court: It is so ordered.

Coley et us. v. Dore et al.

COLEY et ux. v. DORE et al.

1.

2.

No. 5578. Opinion Filed December 7, 1915.
Rehearing Denied March 21, 1916.

(156 Pac. 164.)
APPEAL AND ERROR - Review in Equity Case - Decision-
Weight of Evidence. In a case of purely equitable cognizance,
this court may examine and review the evidence; and if the find-
ings and decision of the trial court clearly appear to be contrary
to the weight of such evidence, it will overturn such findings and
decision.
EXCHANGE OF PROPERTY-Rescission of Contract-Fraud-
Sufficiency of Evidence. The evidence examined, and held, that
the findings of the court are not against the weight thereof.
VENDOR AND PURCHASER-Rescission of Contract Grounds

- Expression of Opinion. A purchaser of land cannot predicate
fraud upon statements made by the vendor which, either by rea-
son of their form or subject matter, show to be mere expressions
of opinion. A purchaser is not justified in relying upon the ac-
curacy of such statements; and, if he does, and the opinion turns
out wrong, the purchaser has no action because thereof.
(Syllabus by Brewer, C.)
Error from Superior Court, Muskogee County;

Farrar L. McCain, Judge.

3.

Action by S. B. Coley and wife against P. J. Dore and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

W. C. Franklin and P. J. Carey, for plaintiffs in error.
S. V. O'Hare, for defendants in error.

Opinion by BREWER, C. This appeal presents error from the superior court of Muskogee county. Plaintiffs in error, S. B. Coley and his wife, as plaintiffs below, brought this suit against P. J. Dore and his wife, as defendants, to obtain a rescission of a written contract, by

Coley et us. v. Dore et al.

which said plaintiffs traded certain city lots, farming lands, and notes to defendants in exchange for an electric light plant, owned by defendants and situated in the town of Westville, Okla. It was sought to rescind the contract on the ground of fraudulent misrepresentations alleged to have been made by Dore in inducing and procuring the contract. Briefly stated, these misrepresentations were alleged to be: (1) Misrepresentation as to the aggregate value of the plant and of its net earning capacity; (2) that the defendants represented that they had a contract with the city of Westville to do the pumping of the water to be used by the municipality, and the inhabitants thereof, through which considerable revenue and profits would be derived, and that such representations were false. A voluminous record is presented, containing many pages of evidence, which includes the testimony of all the interested principals in the case; and after the evidence had been heard by the court, sitting as a chancellor, the court decided all the issues in favor of defendants, and made and entered the following findings of fact and judgment:

“(1)

That the plaintiffs have failed to establish the material allegations of their petition, relative to fraud, and have failed to show that the representations and statements made by the defendants to the plaintiffs in the negotiations of the contract in evidence were false and fraudulent as in said petition alleged.

“(2) That the statements of the defendants as to the value of the electric light plant did not amount to a material allegation of fact, and were not so intended or considered by the parties, but were merely an expression of opinion, and that the valuation of such plant at $15,000 was fixed simply as a basis for the contemplated trade and

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