In its petition in error in this case defendant sets forth 17 specifications of error, but in the brief and argument only three propositions are presented which may be stated as follows:
(1) That the evidence is insufficient to support the verdict and judgment.
(2) That the court erred as a matter of law in certain paragraphs of its instructions to the jury.
(3) That the court erred in admitting certain testimony over the objections and exceptions of the defendant.
Under the first proposition the record has been carefully examined and it is found that the testimony reasonably establishes the following facts:
That in the fall of 1919 plaintiff purchased a number of cattle and pastured them during the winter of 1919-1920 upon the lands described in his petition; that the creek through this land, from which the cattle drank, had its source in a range of hills extending from the northwest quarter of section 1 over the northeast quarter of section 2, and that on the crest of these hills the defendant and other drilling companies had drilled a number of wells, some of which produced large quantities of salt water, while others produced it in smaller quantities; that the salt water and other refuse from defendant's wells would run into a small pond called a sump tank and from there into a large pond and from this *Page 270 large pond, in times of heavy rains or over-flows from other causes, the water would flow into this little creek and down it into the creek across plaintiff's land; that the salt water from defendant's wells was in relatively small quantities compared with that coming from other wells in the same vicinity.
That during the winter, and prior to March, 1920, the water in this stream was tasted by various witnesses and was very salty and had oil on it; that plaintiff was away from home when his cattle began taking sick and immediately upon his return he removed his cattle from access to this polluted water and purchased water for their use; that 11 head of his cattle died during the early part of March; that all of said cattle which died exhibited the same symptoms and died within a week or ten days of each other; that a post mortem examination of one of the animals by a competent veterinary disclosed that the lining of the two stomachs and the intestines had, been eaten away and that they showed minute perforations, perhaps a thousand to the square inch; that salt poison in cattle results in the formation of muriatie acid which will produce the results found in the animal examined; that if tuberculosis, however, or any other similar disease had affected these cattle, this result would not have been produced.
With the record in this condition it cannot be said as a matter of law that the evidence was insufficient to authorize the verdict or to support the judgment rendered.
In this connection it is insisted by defendant that the court erred in admitting the testimony of Tan Rogers, the father of the plaintiff, to the effect that he had had experience with cattle poisoned by drinking salt water and that the death of plaintiff's cattle was, in his opinion, due to this cause. In view of the character of testimony given by the veterinary, and in the absence of any allegation or proof of the defendant that any other or different cause could have produced the result and brought about the condition found to exist in the dead animal which was examined, it is not apparent that the admission of this testimony over the objection of the defendant, if erroneous, was prejudicial. The competency of the witness to testify was a matter largely within the discretion of the trial court, and unless an abuse of this discretion is shown no reversible error is presented by this assignment.
A complaining party has the burden of pointing out and showing the prejudicial effect of testimony erroneously admitted or excluded where such prejudice is not apparent on the face of the record. This has not been done in reference to the testimony of Tan Rogers.
"The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." Comp. Stat. 1921, section 319.
This statute applies in the situation here presented. Hertzel et al. v. Weber et al., 31 Okla. 5, 120 P. 589; O. B. Garrison Co. v. Meyers et al., 52 Okla. 100, 152 P. 838; Bair v. Conover, 66 Okla. 288, 168 P. 997; Boatman v. Coverdale, 80 Okla. 9, 193 P. 874.
Defendant complains of instructions numbered 5 and 6 given to the jury. Paragraph No. 5 is based upon section 7969, Comp. Stat. 1921, and appears to be a correct statement of the substance of that section and a correct direction to the jury thereunder. Paragraph No. 6 of the instructions appears to be a correct statement of the conditions under which the defendant would be liable, and concludes with this language:
"And you are further told that it is no defense that others may have contributed to such pollution."
This is a correct statement of the law under the holding of this court in Northup et al. v. Eakes et al., 72 Oklahoma,178 P. 266, and followed in Walters et al. v. Praire oil Gas Co., 85 Okla. 77, 204 P. 906.
Defendant's third proposition has been discussed and disposed of by the conclusion reached upon the first proposition above and it is unnecessary to further discuss the admissibility of the evidence or the competency of the witness as complained of under the third proposition.
It is therefore concluded upon the whole case that the assignments of error are not well founded, and that the judgment of the trial court herein should be in all things affirmed.
By the Court: It is so ordered.