In placing the issues before the jury, there was nothing said as to the plaintiff's raising or pleading fraud. Plaintiff relies principally upon a decision by this court in the case of St. Louis S. F. R. Co. v. Bruner, 56 Okla. 682, 156 P. 649. In the Bruner Case the court gave an instruction on the question of fraud and told the jury that if they found from the evidence that the settlement and release was secured by fraud or duress on the part of defendant or its agent, then the release and settlement was void and of no effect, would not be binding upon the plaintiff, and would not be a bar to plaintiff's recovery.
However, this rule does not apply to law actions, but, on the contrary, therein fraud must be proved by the party alleging it by clear, strong, and convincing evidence, which means more than a mere preponderance, and in such character of cases it is the duty of the trial court to advise the jury fully as to the burden resting upon the plaintiff, and where this is not done, prejudice results as a matter of law. In St. Louis-S. F. Ry. Co. v. Bruner, 56 Okla. 682, 156 P. 649, we had under consideration instructions similar to those involved herein, and therein we said: "This is clearly wrong as applied to an issue of fraud.
The above case has been cited with approval in many cases. See City of Chickasha v. Hollingsworth, 56 Okla. 341, 155 P. 859; St. Louis S. F. Ry. Co. v. Bruner, 56 Okla. 682, 156 P. 649; St. L. S. F. Ry Co. v. Dobyns, 57 Okla. 643, 157 P. 735; Stekoll v. Abraham, 90 Okla. 218, 217 P. 410; and Gulf, C. S. F. R. Co. v. Harpole, 111 Okla. 305, 239 P. 609. In White v. Oliver, 32 Okla. 479, 122 P. 156, it is held:
Abstractly correct statements of rules of law are not always correct as instructions to a jury, and may be prejudicial, depending upon the facts of each particular case. Kingfisher Nat. Bank v. Johnson, 22 Okla. 228, 98 P. 343; Obenchain Royer v. Roff, 29 Okla. 211, 116 P. 782; C., R.I. P. R. Co. v. Beatty, 42 Okla. 528, 141 P. 442; Oklahoma Portland Cement Co. v. Brown, 45 Okla. 476, 146 P. 6; St. L. S. F. R Co. v. Bruner, 56 Okla. 682, 156 P. 649. It is concluded that the giving of paragraph 10 of the instructions, under the facts disclosed by the record, and in the form employed, was prejudicially erroneous. Complaint is also made by defendant of paragraph 5 of the court's instructions, defining contributory negligence, and in refusing to give defendant's requested instruction on the same issue. It is sufficient here to state that the instruction requested was in the language frequently approved by this court, while the instruction as given omitted one of the essential elements of contributory negligence.
To the same effect is Levy v. Gross, 46 Okla. 626, 149 P. 237; Indiana Harbor Belt Co. v. Britton, 56 Okla. 750, 156 P. 894; Kingfisher Nat. Bank of Kingfisher v. Johnson, 22 Okla. 228, 98 P. 343; Phelan v. Barnhart Bros. Spindler, 75 Okla. 49, 181 P. 718. In St. L. S. F. R. Co. v. Bruner, 56 Okla. 682, 156 P. 649, this court employs the following language: "The giving of this instruction was the clearest kind of prejudicial error.
Motion for new trial was overruled, and defendant prosecutes error. The court instructed the jury that plaintiff was only required to make out its case by a fair preponderance of the evidence, and defendant assigns error upon the giving of this instruction, and cites in support of his contention the opinion in St. L. S. F. Ry. Co. v. Bruner, 56 Okla. 682, 156 P. 649, where it was held that the giving of an instruction that a slight preponderance of the evidence will sustain the burden of proof as applied to an issue of fraud was prejudicial. This was so because proof of fraud must be clear, strong, and convincing, and slight proof thereof is not sufficient. The authority cited is not in point.
s another to represent him as his agent and remains silent when occasion arises for him to speak, he may be held as principal." There was no testimony upon which to base an instruction of this sort, and it should not have been given. Was it prejudicial? This court has frequently said that the giving of an instruction which correctly states an abstract principle of law, but which is inapplicable to the facts, error, but we have variously held that such an instruction was not prejudicial "unless it is apparent that such instruction misled the jury" (Chickasha Compress Co. v. Bow, 47 Okla. 576, 149 P. 1166; Pearson v. Yoder, 39 Okla. 105, 134 P. 421, 48 L. R. A. [N. S.] 334, Ann. Cas. 1916A, 62; Weller v. Dusky, 51 Okla. 77, 151 P. 606); that giving such an instruction is prejudicial when it is "calculated to mislead the jury" (C., R.I. P. R. Co. v. Beatty, 42 Okla. 528, 141 P. 442; Obenchain Boyer v. Roff, 29 Okla. 211, 116 P. 782); when it will "probably tend to confuse the jury" (St. L. S. F. R. Co. v. Bruner, 56 Okla. 682, 156 P. 649); when it is "strongly calculated to confuse and mislead the jury" (Kingfisher Nat. Bank v. Johnson, 22 Okla. 228, 98 P. 343); when it appears that "the jury were misled thereby" (Oklahoma Portland Cement Co. v. Brown, 45 Okla. 476, 146 P. 6), etc. The sum of all these expressions is that the instruction is prejudicial when we can fairly say that its necessary effect upon the jury was such that in the language of the statute (section 6005, Rev. Laws 1910) it "probably resulted in a miscarriage of justice."
This action was commenced in the district court of Creek county by the defendant in error, hereinafter styled plaintiff, against the plaintiff in error, hereinafter styled defendant, to recover damages for injuries received because of the running away of a team attached to a vehicle in which plaintiff was riding, resulting in plaintiff being thrown to the ground and injured. Litigation arising out of this accident has been before this court in case of St. Louis San Francisco Railroad Co. v. Mollie Bruner, 52 Okla. 349, 152 P. 1103, and the case of St. Louis San Francisco Railroad Co. v. A.D. Bruner, 56 Okla. 682, 156 P. 649. Among other defenses pleaded by the defendant in its answer was the execution by plaintiff, in consideration of the sum of $50, of a release discharging defendant from all liability arising out of said accident.
It will not always do to take expressions from textbooks or from opinions of the courts, which must necessarily be statements of general rules, and apply them to other cases in which all the elements defined in the opinion quoted from do not exist. In St. L. S. F. R. Co. v. A.D. Brewer, 56 Okla. 682, 156 P. 649, it is said: "The giving of an instruction upon an issue not raised by the pleadings or the evidence, and which will probably tend to confuse the jury, constitutes prejudicial error."