A refusal to strike out testimony of a witness upon alleged grounds that it was contrary to all of the evidence on the question an untrue was not error.67

A motion to strike out testimony because, on cross-examination, the witness has shown himself unqualified to give it, will not be sustained, since the objection should have been taken at first to the want of foundation.68

There is no error in refusing a motion to strike out testimony in response to testimony of defendant, it not being objected to when offered, and tending to explain the transaction testified to by defendant, nor when the objection to it is not disclosed and its impropriety or insufficiency is not apparent.T

Where the grounds of a motion to strike testimony were not stated, and no objection had been made to the admission of the testimony, the motion is properly overruled," and a motion "to strike testimony of the witness along that line," as immaterial, is too indefinite.72

A motion to strike out evidence is properly denied where some of it is admissible.78

A party cannot complain of a refusal to sustain a motion to strike out testimony admitted without objection, where it was given in direct response to his own question."*

When oral evidence has been introduced concerning a contract and it is established by the cross-examination that the contract was in writing, it is error for the trial court, on proper motion being made, to refuse to exclude all oral evidence concerning the transaction, after such written contract has been read in evidence.75 The exclusion of incompetent and irrelevant evidence is not error, though no objection is made thereto.76

67 Carlson v. Mid-Continent Development Co., 103 Kan. 464, 173 P. 910, L. R. A. 1918F, 318.

68 Hughes v. Ward, 16 P. 810, 38 Kan. 452.

69 Anthony v. Atwood, 62 P. 720, 10 Kan. App. 578.

70 Wideman v. Faivre, 163 P. 619, 100 Kan. 102, Ann. Cas. 1918B, 1168.

71 Ewing v. Wichita R. & Light Co., 137 P. 940, 91 Kan. 388.

72 St. Louis & S. F. R. Co. v. Murray, 50 Okl. 64, 150 r. 884.

73 Smythe v. Parsons, 14 P. 444, 37 Kan. 79; Elliott v. Missouri Pac. Ry. Co., 55 P. 490, 8 Kan. App. 191.

74 Brownell v. Moorehead (Okl.) 165 P. 408; Ardmore Oil & Milling Co. v. Robinson, 116 P. 191, 29 Okl. 79.

75 Rich v. Northwestern Cattle Co., 29 P. 466, 48 Kan. 197.

70 Jackson v. Uncle Sam Oil Co. of Kansas, 156 P. 756, 97 Kan. 674.

HON.PL.& PRAC.-52

(817)

Evidence which is not of the quality or character required by law, though not intrinsically destitute of probative quality, admitted without objection and not in conflict with legal evidence, should be considered as if it was legal evidence;" in other words, a fact may be established by incompetent evidence, if material, where it is received without objection.78

That evidence admitted without objection was incompetent will not preclude it from being sufficient to sustain the verdict, where it is relevant to the issue." 79

Testimony consisting of mere conclusions of the witnesses must be given effect, where it was admitted without objection.80

An instruction touching a pertinent fact proved without objection, though not expressly pleaded, is proper.81

MOTION TO STRIKE OUT EVIDENCE (Oral)

Comes now the defendant (or plaintiff) and moves the court to strike the answer of the witness to the foregoing question, for the reason that the same is incompetent, irrelevant, and immaterial, not responsive to the question, argumentative, and is hearsay (add other grounds).

§ 911. Exceptions

A statement of the court, in the jury's absence, that an exception to the admission of evidence would be allowed, is sufficient though no exception was taken when the evidence was introduced.82

77 Jones v. Citizens' State Bank, 39 Okl. 393, 135 P. 373.

78 Jaggar v. Plunkett, 106 P. 280, 81 Kan. 565, 25 L. R. A. (N. S.) 935. 79 Dane v. Bennett, 51 Okl. 684, 152 P. 347.

80 Sentney v. Hutchinson Interurban Ry. Co., 135 P. 678, 90 Kan. 610.

81 Hoskinson v. Smyser, 148 P. 640, 95 Kan. 56S.

82 Harris v. Hart, 49 Okl. 143, 151 P. 1038.

(818)

83

912. Matters of common knowledge Judicial notice will be taken of matters of common knowledge, such as matters of public contemporaneous history, commercial

84

83 Matters judicially noticed as to navigability of Arkansas river, including congressional appropriations by the acts of March 3, 1879, March 3, 1881, and June 14, 1880, stated. Dana v. Hurst, 86 Kan. 947, 122 P. 1041.

The Supreme Court takes judicial notice that the Arkansas river is the largest western tributary of the Mississippi-Missouri system, that it is 2,000 miles long, draining approximately 189,000 square miles, and is navigable through its course in Oklahoma, and that the title to the bed to high-water mark within the state is in the state. State v. Nolegs, 139 P. 943, 40 Okl. 479. The Supreme Court takes judicial notice of the fact that gas and oil are mined by means of deep wells drilled into the earth. Kemp v. Barr Gas. Co., 103 Kan. 595, 175 P. 988.

Taking of extrinsic evidence after a rule to show cause that the filing of a protest was not necessary to support corporation commission's order against railroad rate advances where necessity and reasonableness appear from conditions of which courts and commission may take notice. Atchison, T. & S. F. Ry. Co. v. State (Okl.) 171 P. 43.

No judicial notice is taken of arrival and departure of trains at a particular place. Boatman v. Coverdale, 80 Okl. 9, 193 P. 874; Booth & Flinn v. Cook, 79 Okl. 280, 193 P. 36. Courts will take judicial notice of railway operations. Lusk v. Henson, 78 Okl. 147, 189 P. 191.

The courts will not take judicial notice that the equipment or an employé of a railroad is engaged in interstate commerce at any precise time or place. Chicago, R. I. & P. Ky. Co. v. McBee, 45 Okl. 192, 145 P. 331.

The court will not take judicial notice of bookkeeping methods of insurance agent. Coon v. Boston Ins. Co., 79 Okl. 296, 192 P. 1092.

84 Courts take judicial notice that under the treaty of Paris the Philippine Islands became a part of the territory of the United States, and after that time were in a state of insurrection against the government, which insurrec

86

usages and customs,85 facts of general scientific knowledge, ordinary words of our language, and technical words when their meaning has been settled by common usage,8 seasons and the

87

tion had not ended in the island of Mindanao in 1902. La Rue v. Kansas Mut. Life Ins. Co., 75 P. 494, 68 Kan. 539.

85 Judicial notice will be taken of the fact that, in case of shipments involving the services of connecting carriers, freights not prepaid are collected in a lump sum by the final carrier prior to delivery. Southern Pac. Co. v. Larabee, 132 P. 205, 89 Kan. 608.

The courts will take knowledge of the existence of the universal custom that crop rent is payable when the crop matures. Pruitt v. Carter, 52 Okl. 284, 152 P. 1081.

The common-law rule that a tenant is not entitled to a crop sown, but not maturing, before expiration of his lease, has not been modified by any custom of which judicial notice will be taken. Bank of Denton v. Jesch, 163 P. 150, 99 Kan. 797.

Judicial notice will be taken of the fact that carriers by rail customarily carry as baggage sample trunks of traveling salesmen Kansas City, M. & O. Ry. Co. v. Fugatt, 47 Okl. 727, 150 P. 669, L. R. A. 1916A, 545.

The court will take judicial notice that no custom prevails, in the cities generally, to the effect that a landlord, in the absence of stipulations in the lease, is liable for water rent for water used by the tenant. Atkinson v. Kirkpatrick, 135 P. 579, 90 Kan, 515.

A cosurety, sued for contribution, set up as a defense that the bank, payee of the note, had extended the time of payment without his knowledge or consent. He offered no proof of any such extension, but it appeared that the note was not fully paid until four years after maturity. Held, that the court will not take judicial notice of the alleged custom of banks to require renewal of note not paid promptly at maturity. Livermore v. Ayres, 119 P. 549, 86 Kan. 50.

86 Improvement in communication which telephone has made, its nature, operation, and ordinary uses, are facts of general scientific knowledge of which courts will take judicial notice. Heckman v. Davis, 56 Okl. 483, 155 P. 1170.

The courts will take judicial notice that abandoned coal mines generate gases. Cheek v. Missouri, K. & T. Ry. Co., 131 P. 617, 89 Kan. 247.

In an action to recover for injuries resulting from an explosion in a coal mine, the court will not take judicial notice that dry, fine coal dust is a dangerous and explosive element. Cherokee & P. Coal & Mining Co. v. Wilson, 28 P. 178, 47 Kan. 460.

87 Courts will take judicial notice of the meaning and force of the ordinary words of our language, and also of technical words, where their meaning is well settled by common usage. State v. Baldwin, 12 P. 318, 36 Kan. 1; Sun Ins. Office of London v. Western Woolen Mill Co., 82 P. 513, 72 Kan. 41.

The court will take judicial notice of the meaning of the term "milling in transit privilege," and admission of oral evidence to explain it is not error, in action for breach of contract of carriage which deprived plaintiff of privilege. St. Louis & S. F. R. Co. v. Wm. Bondies & Co., 64 Okl. 88, 166 P. 179.

course of nature,88 geographical facts,89 location of cities 90 and counties, population, where a matter of official record within the state,92 routes of railroads, and the standard tables of life expectancy,94

91

93

88 Judicial notice will be taken of the seasons and the course of nature, which includes the general course of agriculture and the growth of the staple crops. First Nat. Bank v. Rogers, 103 P. 582, 24 Okl. 357; Payne v. McCormick Harvesting Mach. Co., 66 P. 287, 11 Okl. 318.

Judicial notice will be taken of the natural shrinkage of grain in transit; the Legislature having recognized in Gen. St. 1909, § 7103, that wheat in transit will naturally shrink as much as one-fourth of one per cent. of its total weight. Cardwell v. Union Pac. R. Co., 136 P. 244, 90 Kan. 707.

89 The courts will take judicial notice of the boundaries of the counties and the territory, and of the geographical location of cities and towns within its jurisdiction, and the court judicially knows that a place about eight miles southeast of Lexington is in Cleveland county, Okl. Harvey v. Territory, 65 P. 837, 11 Okl. 156.

The Supreme Court of Kansas will take judicial notice that on January 17, 1861, the region of country known as "Pike's Peak" was within the territory of Kansas. Carey v. Reeves, 26 P. 951, 46 Kan. 571.

The courts will ordinarily take judicial notice of the principal water courses within their respective jurisdictions. Board of Com'rs of Kay County v. Smith, 47 Okl. 184, 148 P. 111.

90 The Supreme Court will take judicial notice that Chickasha, Okl., is within that portion of the state which was formerly Indian Territory. Anheuser-Busch Brewing Ass'n v. Doss, 129 P. 49, 36 Okl. 318.

In an action against a railroad company for killing stock, judicial notice will be taken of the location of a city, the place of trial. Kansas City, Ft. S. & G. R. Co. v. Burge, 21 P. 589, 40 Kan, 736.

The court cannot take judicial notice that an alley between two designated streets is within the territorial boundaries of the city of Topeka. City of Topeka v. Cook, 84 P. 376, 72 Kan. 595.

91 The courts will take judicial notice that Canadian county is not located in that part of the territory where persons may permit their stock to run at large, under Sess. Laws 1899, p. 58, c. 2, art. 2. Lewis v. Rasp, 76 P. 142, 14

Okl. 69.

92 The court will take judicial notice of the population of the counties, and of the towns and cities located in such counties, traversed by certain railroad, as shown by the special federal census of July 1, 1907, especially after its adoption by the Legislature. St. Louis & S. r. R. Co. v. Williams, 107 P. 428, 25 Okl. 662.

The court judicially knows that counties having a population of more than 60,000 include Oklahoma county only. Board of Com'rs of Oklahoma County v. Beaty (Okl.) 171 P. 34.

93 The courts will take judicial notice of the route of a railroad which had been operated for a number of years from one station to another in the state, and that for a great portion of the distance between such stations such route 94 See note 94 on following page.