The evidence was sufficient to justify the submission of the question to the jury, her earning capacity and the degree to which the same might be lessened by her injuries being presumably within the knowledge or observation of the jury as persons of ordinary intelligence and experience ( Storrs v. Los Angeles Traction Co., supra; Gotsch v. Market St. Ry., supra). [12] While the earnings of the minor during minority belonged to her parents equally (Civ. Code, sec. 197), here her father, having brought the action as her guardian ad litem claiming such loss on her behalf, would be estopped from attempting to recover the same in an action brought on his own behalf ( Moline Timber Co. v. Taylor, 144 Ark. 317 [222 S.W. 371]; Morris v. Kasling, 79 Tex. 141 [15 S.W. 226]; Kenure v. Brainerd etc. Co., 88 Conn. 265 [ 91 A. 185]; Baker v. Flint etc. R.R. Co., 91 Mich. 298 [30 Am. St. Rep. 471, 16 L.R.A. 154, 51 N.W. 897]; Louisville Ry. Co. v. Esselman (Ky.), 93 S.W. 50; Revel v. Pruitt, 42 Okl. 696 [ 142 P. 1019]; Abeles v. Bransfield, 19 Kan. 16; American Car Foundry Co. v. Hill, 226 Ill. 227 [80 N.E. 784]). [13] As to the interest of the mother therein it is not contended that any action has been brought by her to recover for any loss in this respect.
In any event the present proposition was not raised and passed on there and furnishes no support for plaintiff's contention. Revel v. Pruitt, 42 Okla. 696, 142 P. 1019, was an action by the injured minor by his father and next friend. Loss through death was not involved and the case is not in point.
"Ordinarily, a direct allegation of an ultimate fact may be excused when the fact otherwise sufficiently appears or is necessarily implied from other averments in the petition. Revel v. Pruitt, 42 Okla. 696, 142 P. 1019."
Zongker v. People's Union Mercantile Co. 110 Mo. App. 382, 389-390. Revel v. Pruitt, 42 Okla. 696, 700. Hammer v. Caine, 47 Wn. 672, 673. Many of the cases are collected in 37 A.L.R. 65 et seq. See Freeman, Judgments (5th ed.) § 481; Sedgwick, Damages (9th ed.) § 486b.
Ordinarily, a direct allegation of an ultimate fact may be excused when the fact otherwise sufficiently appears or is necessarily implied from other averments in the petition. Revel v. Pruitt, 42 Okla. 696, 142 P. 1019. Thus, although the plaintiff did not in her petition specifically state that the defendant abandoned her, she pleaded the facts from which such abandonment was obviously apparent and necessarily inferred with sufficient clarity to advise court or counsel of the basis of her complaint.
(20 C.J. 3; Ireland v. Waymire, 107 Kan. 384, 191 P. 304; Norcross v. Cunningham, 54 Colo. 517, 131 P. 428; In re Smith's Estate, 60 Mont. 276, 199 P. 696; Brisley v. Mahaffey, 87 Okla. 257, 209 P. 920; O'Meara v. McDermott, 43 Mont. 189, 115 P. 912; Revel v. Pruitt, 42 Okla. 696, 142 P. 1019.)
It is apparent that the action in tort brought on behalf of the minor was necessarily inconsistent with the contract sued upon herein. In this connection the defendant calls our attention to Revel v. Pruitt, 42 Okla. 696, 142 P. 1019, wherein this court held that the bringing of an action by the father of a minor child as next friend would estop the father from subsequently maintaining an action to recover such damages for his own use. The case in some respects is similar to the fact situation here, but we observe in that case that the action on behalf of the minor was prosecuted to a final judgment on the merits.
The issue as to the emancipation of the children does not properly belong in this case, for the reason that the cattle were not acquired by them by reason of labor and services, but by gift, but we believe it best to submit some law to the court bearing on the subject. Woods v. James (Cal.), 114 P. 587; Mathias v. Tingey (Utah), 118 P. 781; Officer v. Swindlehurse (Mont.), 108 P. 583; Frauenthal v. Bank of El Paso (Ark.), 44 A.L.R. 871; 46 C.J. 1285; Burdsall v. Waggoner, 4 Colo. 261; Wheeler v. St. J. W.R. Co., supra; Revel v. Pruitt (Okla.), 142 P. 1020; Mathews v. Fields, 77 S.E. 11; Sweet v. Crane (Okla.), 134 P. 1112. The recordation of the JHG brand and the awarding thereof by the state board of stock commissioners constitute prima-facie evidence of ownership.
"It is a well-established principle of pleading that there need be no direct allegation of a fact if the same otherwise sufficiently appears, or of a fact which is necessarily implied from other averments in the petition." Revel v. Pruitt, 42 Okla. 696, 142 P. 1019. "Pleadings attacked by demurrer should be liberally construed in favor of the pleader where material allegations are merely defectively stated and not entirely omitted."
Co. (Mo.), 298 S.W. 88: Abeles v. Bransfield, 19 Kan. 16; Zongker v. Mere. Co., 110 Mo. App. 389; Freeman on Judgments (5 Ed.), par. 481, p. 1041; Farrar v. Wheeler, 75 C.C.A. 386, 146 F. 482; Central of Georgia Railroad Co. v. McNab, 150 Ala. 332; Moline Timber Co. v. Taylor, 144 Ark. 317, 222 S.W. 371; Kenure v. Brainerd A. Co., 88 Conn. 265, 91 A. 185; Chicago Screw Co. v. Weiss, 203 Ill. 536, 68 N.E. 54; Am. Car Foundry Co. v. Hill, 226 Ill. 227, 80 N.E. 784; Donk Bros. Coal Coke Co. v. Retzloff, 299 Ill. 194, 82 N.E. 214; Boggs v. Railroad Co., 187 Ill. App. 621; Orr v. Mfg. Co., 179 Ill. App. 235; Chesapeake O. Railroad Co. v. Davis, 119 Ky. 641, 60 S.W. 14; Cincinnati, N.O. T.P. Railroad Co. v. Troxell, 143 Ky. 765, 137 S.W. 543; Chesapeake O. Railroad Co. v. De Atley, 151 Ky. 109, 151 S.W. 363; Akers v. Fulkerson, 153 Ky. 228, 154 S.W. 1101; Baker v. Railroad Co., 16 L.R.A. 154, 30 Am. St. 471, 51 N.W. 897; Brookhaven Lbr. Mfg. Co. v. Adams, 132 Miss. 689, 97 So. 484; Revel v. Pruitt, 42 Okla. 696, 142 P. 1019; Galveston H. S.A. Railroad Co. v. Jackson, 31 Tex. Civ. App. 342, 71 S.W. 991; Schaff v. Sanders (Tex. Civ. App.), 257 S.W. 677; Kuchenmeister v. Los Angeles S.L. Railroad Co., 52 Utah, 116, 172 P. 725; Daly v. Pulp Paper Co., 31 Wn. 252, 71 P. 1014; Donald v. Ballard, 34 Wn. 576, 76 P. 80; Hammer v. Caine, 47 Wn. 672, 92 P. 441; Harris v. Elec. Ry. Co., 52 Wn. 298, 100 P. 841; State to Use of Hempstead v. Coste, 36 Mo. 437. (2) The court committed error in refusing to sustain and in overruling the demurrer of defendant at the close of all the evidence, for the reason that on the face of the record, the plaintiff's cause of action was barred by the five-year statute of limitations.