Volume 201 — Oklahoma Reports

(Syllabus.) 1. HUSBAND AND WIFE — <italic>Husband obligated to provide</italic> <italic>new insurance upon termination of old policy, under</italic> <italic>contract for separate maintenance, regardless of his</italic> <italic>severance of connection with Chrysler Corporation.</italic> A contract for separate maintenance entered into between husband and wife in contemplation of divorce provided as follows: <block_quote> "Second: So long as the husband is connected with the Chrysler Corporation, he agrees to keep in full force and effect and good standing, a certain policy of insurance for Ten Thousand Dollars ($10,000.00) (Certificate No. CG-9354) and to permit the beneficiary therein, Lucille M. Allen, to remain unchanged except with her consent thereto. It at any time, for any cause, said insurance policy shall cease to be effective, except for the death of the husband, the husband agrees to provide a new policy in like amount to insure his life in a reputable old line insurance company, in which policy the wife shall be named first as sole beneficiary."</block_quote> The parties were divorced and thereafter the husband severed his connection with Chrysler Corporation, and terminated the policy of insurance specified in the contract. Held, that the severing of his connection with the Chrysler Corporation did not relieve the husband of liability to carry insurance in favor of his divorced wife, but that, under the second sentence of the above-quoted paragraph of the contract, he was obligated to provide new insurance upon the termination of the old policy, regardless of whether or not he was then connected with Chrysler Corporation. 2. SAME — <italic>Ascertainment of damages for failure of</italic> <italic>husband to carry insurance.</italic> Where both parties to such contract are still alive, damages for failure on the part of the husband to carry insurance, as provided in said contract, are not susceptible of ascertainment. 3. SPECIFIC PERFORMANCE — <italic>Inability of defendant to</italic> <italic>perform is a matter of defense.</italic> In an action brought by plaintiff for specific performance of a contract to provide insurance, it is not necessary that the petition allege ability on the part of the defendant to perform the contract. If, for any reason, defendant is unable to perform, his inability is a matter of defense.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Compensation on basis of</italic> <italic>combined disabilities in case of injury to "physically</italic> <italic>impaired" person — Function of Special Indemnity Fund.</italic> Under the provisions of 85 O.S.Supp. 1943 § 172[<cross_reference>85-172</cross_reference>], if an employee who is a physically impaired person as defined in said Act, receives an accidental personal injury compensable under the Workmen's Compensation Law which results in additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially greater than that which would have resulted from the subsequent injury alone, such employee shall receive compensation on the basis of such combined disabilities. The employer shall be liable only for the degree or per centum of disability which would have resulted from the latter injury if there had been no preexisting injury, and the remainder of such compensation shall be paid by the Special Indemnity Fund without credit for the compensation paid for the first or prior injury. 2. SAME — <italic>After settlement on joint petition,</italic> <italic>Industrial Commission has jurisdiction to make award</italic> <italic>against the Fund, where order reserved that right.</italic> Industrial Commission does not lose jurisdiction to make an award against the Special Indemnity Fund, under the provision of 85 O.S. 1943 Supp. § 171 et seq., by reason of settlement on joint petition of claim against employer under the provision of 85 O.S. 1941 § 84[<cross_reference>85-84</cross_reference>], where the order approving the settlement specifically reserved the right to proceed against the Special Indemnity Fund. 3. SAME — <italic>Award vacated where evidence disclosed</italic> <italic>only a ten per cent disability to body as a whole.</italic> Where Industrial Commission makes award to employee for 20 per cent permanent disability to the body as a whole, but the only evidence in the record discloses a ten per cent disability to the body as a whole, the award will be vacated.

(Syllabus.) PARTIES — JUDGMENT — <italic>Joinder of parties</italic> <italic>plaintiff — Trial court without power to render judgment for</italic> <italic>or against either of parties in absence of trial of issues</italic> <italic>between parties.</italic> Where the parties to an action have introduced their evidence and finally submitted the cause to the court, except for further argument at some future date, and thereafter, on the theory or for the reason that plaintiff has no interest in the subject matter of the action and had no interest therein when the action was filed, another person is brought into the action as a party plaintiff under such circumstances as to amount to the making of a new party plaintiff in effect, and, by new pleadings, issue is joined between such new plaintiff and the defendant, such issues may be determined only after trial in which both parties have participated. And in such case, where no trial is had, and there is no adoption by the parties of the evidence theretofore introduced, there is no basis for rendition of judgment for the new plaintiff or for the two plaintiffs, and the rendering of such a judgment is reversible error.

(Syllabus.) 1. CONTRACTS — <italic>Right of third party to sue on</italic> <italic>contract made to another for his benefit.</italic> It is necessary that there be a valid and binding contract between promisor and promisee to entitle a third party to maintain an action on a promise made to another for his benefit. 2. ESTOPPEL — <italic>Essential elements of "equitable</italic> <italic>estoppel."</italic> The essential elements of an "equitable estoppel" are: First, there must be a false representation or concealment of facts; second, it must have been made with knowledge, actual or constructive, of the real facts; third, the party to whom it was made must have been without knowledge, or the means of knowledge, of the real facts; fourth, it must have been made with the intention that it should be acted upon; fifth, the party to whom it was made must have relied on, or acted upon it to his prejudice. 3. FRAUDS, STATUTE OF — ESTOPPEL — <italic>Right to</italic> <italic>urge equitable estoppel to preclude one from asserting</italic> <italic>statute of frauds as defense.</italic> It is an indispensable element of equitable estoppel that the person relying thereon must have been induced to act or alter his position to his detriment or injury, and, where equitable estoppel is relied on to preclude another from asserting the statute of frauds as a defense to an oral contract for sale of realty, such injury must be unjust and unconscionable, and such that there is no complete and adequate remedy at law available to the person asserting the equitable estoppel.

(Syllabus.) 1. LIMITATION OF ACTIONS — <italic>Necessity for written</italic> <italic>acknowledgment of indebtedness by one authorized to make</italic> <italic>it, to toll the statute.</italic> An acknowledgment of corporate indebtedness, sufficient to interrupt the running of the five-year statute of limitations, must be in writing and made by one who has the authority to make it. 2. SAME — <italic>Pastor of incorporated church without</italic> <italic>authority to make written acknowledgment of indebtedness so</italic> <italic>as to toll the statute.</italic> In absence of proof that he has been granted authority so to do, the pastor of an incorporated church, who has no official<page_number>Page 30</page_number> power with reference to its fiscal affairs, is without authority to make written acknowledgment of the corporate indebtedness so as to toll the statute of limitations. 3. PRINCIPAL AND AGENT — <italic>Burden of proof to</italic> <italic>establish agency.</italic> The burden of proof on the issue of agency lies with the party alleging the existence thereof.

(Syllabus.) APPEAL AND ERROR — <italic>Failure of defendant in error to</italic> <italic>file brief — Reversal.</italic> Where plaintiff in error has served and filed brief, but the defendant in error has neither filed a brief nor offered any excuse for her failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause, with directions.

(Syllabus.) APPEAL AND ERROR — <italic>Failure of defendant in error to</italic> <italic>file brief — Reversal.</italic> Where plaintiff in error has served and filed brief, but the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause, with directions.

(Syllabus.) 1. INSURANCE — <italic>Action on life policy —</italic> <italic>Liability on life policy avoided by proof insured on date</italic> <italic>policy is received was afflicted with fatal malady.</italic> Where a policy of life insurance issued without medical examination, contains a provision that no liability is imposed upon a company unless, on date the policy is received the insured is in good health, the insurer may avoid liability upon proof that upon date of issuance of such policy the insured was seriously afflicted with fatal malady which continued uninterruptedly and in due course of the disease caused death of insured. 2. APPEAL AND ERROR — <italic>Reversal — Insufficiency</italic> <italic>of evidence to support verdict.</italic> Where on inspection of the record it is apparent that there is no evidence reasonably tending to sustain the verdict of the jury, such verdict will be set aside by this court.

(Syllabus.) 1. OIL AND GAS — <italic>Supreme Court may, in its</italic> <italic>discretion, extend time within which reccord of proceedings</italic> <italic>before the Corporation Commission may be filed.</italic> Where, on appeal from an order of the Corporation Commission, the petition in error is timely filed, this court may, in its discretion, extend the time within which the record of the proceeding before the Corporation Commission may be filed, where, in support of an application to extend the time, appellants show that it is impossible to obtain a transcript of the record in sufficient time to file it within the 60 days allowed by law. 2. OIL AND GAS — <italic>Tenders of gas at going price</italic> <italic>sufficient to justify granting allowables — Action of</italic> <italic>commission refusing to revoke and cancel allowables not</italic> <italic>erroneous.</italic> By a general order the Corporation Commission provided that allowable production should be allocated to gas wells in the Hugoton field having no market outlet when the owner or operator of said wells was ready and willing to dispose of his gas at the going price in the field, and evidenced his willingness by making a tender of such gas in good faith to a common purchaser. Appellants, an owner of royalty in the field, and a common purchaser to whom tenders of gas had been made, but which did not connect to the wells of the operator, sought to cancel and revoke allowables granted to<page_number>Page 44</page_number> the operator's wells on the ground that no tender of such gas at the going price in the field had been made. At a hearing before the commission appellants produced evidence showing that the price at which the gas was tendered to it was in excess of the going price in the field. The tenders, however, provided that in case the parties were unable to agree on the price, the price should be fixed by the Corporation Commission. Held, under the facts in this case, that the tenders were sufficient to justify the Conservation Officer in granting allowables, and that the commission did not err in refusing to revoke and cancel the allowables.

(Syllabus.) TAXATION — <italic>Sale for taxes — Purchase by</italic> <italic>interested party, either in person or indirectly, deemed</italic> <italic>merely mode of paying taxes.</italic> One who is under a moral or legal obligation to pay the taxes is not in a position to become a purchaser for taxes; and, if such person permits the property to be sold and buys it in, either in person or indirectly, through the agency of another, he does not thereby acquire any right or title to the property, but his purchase will be deemed a mode of paying the taxes.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Mayor acted within scope of</italic> <italic>his authority in appointing election officials, in special</italic> <italic>election held for purpose of voting an amendment of</italic> <italic>charter.</italic> Where the city charter provides that the mayor shall be the chief election officer in all city elections and no procedure is prescribed in the city charter relating to election on an initiative measure to amend the charter, the mayor was acting within the scope of his authority in appointing the election officials.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Compensation on basis of</italic> <italic>combined disabilities in case of injury to "physically</italic> <italic>impaired person."</italic> Under 85 Okla. St. Ann. § 172, the Special Indemnity Fund is liable for the payment of compensation to a "physically impaired person" if the degree of disability caused by the combination of the disabilities is greater than that which would have resulted from the subsequent injury alone, and compensation shall be paid on the basis of such combined disabilities. 2. SAME — <italic>Sufficiency of evidence to support finding</italic> <italic>that injured employee was a physically impaired person</italic> <italic>within meaning of statute, and award based thereon</italic> <italic>sustained.</italic> Where there is competent evidence reasonably tending to support the finding of the State Industrial Commission that an injured employee is a physically impaired person within the meaning and definition of 85 Okla. St. Ann. § 172, and the State Industrial Commission makes the finding based upon such evidence that the injured employee is a physically impaired person, an award based upon such findings otherwise properly made will not be disturbed on review.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Statutes authorizing</italic> <italic>indebtedness of city held void as violative of constitutional</italic> <italic>provisions limiting amount of such indebtedness, without</italic> <italic>assent of voters.</italic> House Bill 466, S. L. 1947, p. 56, et seq. (appearing as sections 311 to 318, inclusive, of Title 11 O. S. Supp. 1947), purporting to authorize any incorporated city or town of the state, without the assent of the voters thereof to incur indebtedness in excess of that permitted by section 26, art. 10, of the Constitution, and not within the exception provided by section 27 of said art. 10, Constitution, is contrary to and violative of said provisions and therefore void.

(Syllabus.) BROKERS — <italic>Right of owner to sell listed real estate</italic> <italic>through his own efforts independently of broker where</italic> <italic>contract of employment did not grant broker exclusive right</italic> <italic>to sell.</italic> The owner of land listed with a broker for sale may in good faith sell through his own efforts, without liability to the broker, before the owner is advised that the broker has procured a purchaser ready, able and willing to buy on the terms specified, where the contract of employment does not grant the broker an exclusive right to sell.

(Syllabus.) NEGLIGENCE — <italic>Doctrine of "res ipsa loquitur"</italic> <italic>inapplicable to bursting of bottle of carbonated beverage</italic> <italic>after it had passed into hands of third party.</italic> The doctrine of "res ipsa loquitur" is inapplicable to the bursting of a bottle of carbonated beverage after it has passed from the bottler into the hands of third parties, where the record is silent as to how the beverage is handled after it leaves the possession of the bottler until received by the retailer.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Sufficiency of evidence to</italic> <italic>sustain award of State Industrial Commission.</italic> Record examined, and held, that the award of the State Industrial Commission herein is sustained by the evidence.

(Syllabus.) 1. LIMITATION OF ACTIONS — <italic>Right of Legislature to</italic> <italic>extend period of limitations as to existing causes of</italic> <italic>action where right to plead not accrued.</italic> The Legislature may extend the period of limitations as to existing causes of action where the right to plead it has not accrued. 2. SAME — <italic>New action may be brought within year</italic> <italic>after dismissal of first action — Lien of paving</italic> <italic>bondholder subject to cancellation on failure to timely</italic> <italic>commence new action.</italic> Where, under 11 O. S. 1941 § 242, a paving bondholder could elect one of three remedies for the enforcement of his special assessment lien by a designated date, and elected the remedy of suit to foreclose and thereafter dismissed his action after the limitation period had run, he had one year after the dismissal to commence a new action under 12 O. S. 1941 § 100, and it was error for the court to cancel the lien before the expiration of the year. However, if he failed to timely commence the new action, his lien ceased to exist, and was subject to cancellation.

(Syllabus.) 1. DIVORCE — <italic>Equitable division of property acquired</italic> <italic>by joint industry of parties to be made where divorce</italic> <italic>granted because of fault of wife.</italic> Where a divorce is granted the husband because of the fault of the wife, the court should make a fair and equitable division of the property acquired by the joint industry of the parties during marriage. 2. SAME — <italic>Findings of court as to value of personal</italic> <italic>property of plaintiff at time of marriage and at time of</italic> <italic>separation not clearly against weight of evidence.</italic> Record examined, and held, that the findings of the trial court that at the time of the marriage plaintiff owned personal property of the value of $4,000, and that at the time of separation he owned personal property of the value of $6,550, is not clearly against the weight of the evidence.

(Syllabus.) 1. FRAUDS, STATUTE OF — <italic>Requisites to validity of</italic> <italic>contract for sale of realty made by agent.</italic> An agreement for the sale of real estate is invalid unless the same or some note or memorandum thereof be in writing, and subscribed by the party to be charged or his agent, and such agreement, if made by an agent, is invalid unless the authority of the agent be in writing, subscribed by the party sought to be charged. 2. SAME — <italic>Essentials of complete contract by</italic> <italic>connected letters or other writings.</italic> A complete contract, binding under the statute of frauds, may be gathered from letters, telegrams, and writings between the parties relating to the subject matter, and so connected with each other that they may be said to fairly constitute one paper relating to the contract. 3. SAME — <italic>Memorandum must leave nothing to rest in</italic> <italic>parol.</italic> A memorandum, to be sufficient under the statute of frauds, must be complete in itself, and leave nothing to rest in parol. 4. SAME — <italic>Terms of contract for sale of realty must</italic> <italic>be certain with reference to parties, terms, and</italic> <italic>description of property.</italic> A contract for the sale of lands, the specific performance of which a court of equity will enforce, must be certain in its terms and that certainty required has<page_number>Page 103</page_number> reference to the parties contracting, the terms of the sale, and the description of the property.

(Syllabus.) LIMITATION OF ACTIONS — <italic>Action against city</italic> <italic>contractor for damages to building by blasting sounds in</italic> <italic>tort, and is barred by the two-year statute of</italic> <italic>limitation.</italic> The right of action of owner of building to recover from the contractor of a city damages caused to such building by reason of violent concussions and vibrations resulting from blasting on other premises in constructing city sewer sounds in tort and the limitation period applicable thereto is two years, prescribed by the third subsection of Tit. 12 O. S. 1941 § 95.

(Syllabus.) TRIAL — <italic>In tort action for damages, trial court</italic> <italic>without authority to change verdict of jury by increasing</italic> <italic>amount of damages.</italic> In a tort action for damages the jury is the trier of the facts and after it returns a verdict fixing the amount of damages and is discharged, the trial court is without authority to change such verdict by increasing the amount thereof on the theory the undisputed testimony showed plaintiff was entitled to recover a greater amount.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Questions not argued or</italic> <italic>presented in first appeal cannot be made the basis of a</italic> <italic>second appeal.</italic> When, on appeal to this court, a question involved in the case is not argued or presented in the briefs, and the judgment is affirmed, such question may not be made the basis of a second appeal by the same parties in the same case. 2. JUDGMENT — <italic>Law of case — Matters not</italic> <italic>subject to relitigation.</italic> Whether a particular issue was actually litigated is immaterial on the question of the conclusiveness of a decree, where there was full opportunity to litigate it, and it was adjudicated by the decree.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Street improvement bonds</italic> <italic>— Lien of bonds not extinguished</italic><page_number>Page 114</page_number><italic>by act, but preserved, although refunding bonds not issued.</italic> When the holder of street improvement bonds, issued under the provisions of the Revised Laws of 1910, files an agreement to accept street improvement refunding bonds therefor pursuant to the provisions of 11 O.S. 1941 §§ 242-242[11-242-242] (o), S. L. 1939, p. 156, the lien of the bonds is not extinguished, but is preserved, although refunding bonds are not issued. Morris v. Rosecrans, <cross_reference>200 Okla. 124</cross_reference>, <cross_reference>191 P.2d 189</cross_reference>.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Retail dealer in new and</italic> <italic>used farm machinery held not engaged in hazardous business</italic> <italic>under statute.</italic> One engaged in the business of a retail dealer in new and used farm implements is not engaged in a hazardous business under the Workmen's Compensation Act. 2. SAME — <italic>Retail dealer in farm implements held not</italic> <italic>operating "workshop" where machinery is employed —</italic> <italic>Employee injured in such employment not entitled to</italic> <italic>compensation.</italic> A retail dealer in new and used farm implements who in connection with such business maintains a lot or yard upon which such implements are stored, assembled, over-hauled, adjusted and reconditioned for sale by the use of simple tools, but where no machinery is employed in such work, is not operating a "workshop" within the meaning of 85 O.S.Supp. 1947 § 3[<cross_reference>85-3</cross_reference>], and an employee of such retailer who sustains an injury while engaged in reconditioning a used combine at the place and under the conditions above described in not engaged in an employment defined as hazardous by 85 O.S. 1941 § 2[<cross_reference>85-2</cross_reference>], and is not entitled to recover compensation.

(Syllabus.) 1. CONTRACTS — <italic>Where contract founded on illegal</italic> <italic>consideration and void, rule as to restoration of benefits</italic> <italic>inapplicable.</italic> The rule that a party who would rescind a contract must restore what he has received<page_number>Page 126</page_number> under it, does not apply to contracts founded on an illegal consideration which are void for that reason. 2. SAME — MARRIAGE — <italic>Promise of marriage by or</italic> <italic>to person having spouse opposed to morality and public</italic> <italic>policy, and therefore void.</italic> Any promise of marriage by or to a person who, within knowledge of the parties, has a living spouse, is opposed to morality and public policy and therefore void from its inception. 3. EQUITY — <italic>He who comes into equity must come with</italic> <italic>clean hands.</italic> Equity will refuse to lend its aid in any manner to one seeking its active interposition who has been guilty of any unlawful or inequitable conduct in the matter with relation to which he seeks relief. 4. JURY — <italic>When an issue of fact arising on an</italic> <italic>allegation of fraud is within province of jury.</italic> The determination of an issue of fact arising on an allegation of fraud is within the peculiar province of the jury only when the same is material to the court's decision of a legal, in contradistinction to an equitable, right of action.

(Syllabus.) 1. RAILROADS — NEGLIGENCE — <italic>Railroad not</italic> <italic>liable for accidental death of pedestrian on track where</italic> <italic>proof lacking of negligence of employees in operating</italic> <italic>train.</italic> A railroad company will not be liable for an accidental death alleged to have been caused by the negligence of its employees in the operation of one of its trains where there is a total lack of positive evidence of negligence, or of facts and circumstances from which such negligence can be inferred. 2. SAME — <italic>Conjecture and speculation not a basis for</italic> <italic>judgment against railroad company in action for accidental</italic> <italic>death.</italic> Conjecture and speculation will not be allowed to form the basis for a judgment in such an action, and a railway company is not to be held liable for injuries alleged to have been the result of negligence of its employees when there is no positive evidence of negligence or of facts and circumstances from which such negligence can be reasonably inferred. 3. SAME — <italic>Insufficiency of plaintiff's evidence to</italic> <italic>withstand demurrer in personal injury action.</italic> A demurrer to the plaintiff's evidence in a personal injury action ought to be sustained, unless it is reasonably apparent from the evidence that the injury sustained by the plaintiff was caused by some wrongful act of the defendant in violation of a legal duty owing to the plaintiff.

(Syllabus.) 1. NEGLIGENCE — TRIAL — <italic>Refusal of trial court</italic> <italic>to instruct on issue of contributory negligence proper,</italic> <italic>where no contributory negligence shown.</italic> Where the defendant has pleaded contributory negligence, but has introduced no evidence which tends to show contributory negligence on the part of the plaintiff, and a review of all the evidence introduced in the case and all inferences that may reasonably be drawn therefrom permits but one conclusion, which is that no contributory negligence has been shown, in such a case the defense of contributory negligence as contemplated in section 6, art. 23, of the Constitution, has not been presented, and the refusal of the trial court to submit that issue to the jury was correct.<page_number>Page 138</page_number> 2. SAME — <italic>Insufficiency of evidence to show any</italic> <italic>degree of contributory negligence.</italic> Record examined, and held, that there is neither evidence in the record of contributory negligence, nor is there evidence which would justify an inference that any degree of contributory negligence was shown.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Physically impaired</italic> <italic>person entitled to receive compensation on basis of</italic> <italic>combined injuries, where they result in permanent total</italic> <italic>disability.</italic> Under 85 O.S. 1945 Supp. § 172, the State Industrial Commission is not authorized to deduct from the compensation a physically impaired person is entitled to receive for his combined disabilities the percentum of disability which constituted him a physically impaired person where his combined injuries result in permanent total disability. Such deduction is only authorized where the combined injuries result in a permanent disability less than total. 2. SAME — <italic>Permanent injury to eye — Artificial</italic> <italic>means as minimizing damage in fixing award.</italic> The State Industrial Commission is not required, under the Workmen's Compensation Act, to take into consideration that the effect of a permanent injury to the eye might be minimized by artificial means, in fixing the award for such permanent injury.

(Syllabus.) 1. ARMY AND NAVY — <italic>Stay of proceedings against</italic> <italic>defendant in military service left to judicial discretion</italic> <italic>by provisions of Soldiers' and Sailors' Civil Relief</italic> <italic>Act.</italic> A stay of proceedings against a defendant in military service is not made a matter of absolute right, but is left to judicial discretion by the provisions of section 201 of the Soldiers' and Sailors' Civil Relief Act of 1940 (54 U.S. Statutes 1178, 50 U.S.C.A. Appx. § 521). 2. SAME — <italic>Burden of proof — Question for court</italic> <italic>as to prejudice, if stay not granted.</italic> The Act makes no express provisions as to who must carry the burden of showing that a party will or will not be prejudiced materially in his defense of an action against him by reason of his military service, but such question is for the sound discretion of the court under all the facts and circumstances of the particular case. 3. SAME — <italic>Motion to stay proceedings properly</italic> <italic>denied, where defendant's ability to defend not materially</italic> <italic>affected by his military service.</italic> The Act does not expressly require findings, and the denial of a motion to stay proceedings implies a finding that the court was of the opinion that the ability of defendant to defend was not materially affected by reason of his military service.

(Syllabus.) PLEADING — <italic>Motion for judgment on pleadings</italic> <italic>erroneously sustained, where issues of fact to be</italic> <italic>determined.</italic> It is error to sustain a motion for judgment on the pleadings where there are issues of fact to be determined.

(Syllabus.) FRAUDS, STATUTE OF — LIMITATION OF ACTIONS — <italic>Furnishing of money by creditors sufficient performance to</italic> <italic>avoid operation of staute of frauds — Right of action to</italic> <italic>recover half interest in land barred by five-year limitation</italic> <italic>statute.</italic> Allen entered into contract to exchange property and to secure loans completing the transaction procured Garman to lend his credit (by executing accommodation notes) by agreeing to place title to land Garman's name and when loans were procured accommdation notes would be canceled and each would own undivided half interest in land subject to mortgage, but Allen retained Garman's note ($4,000) for his own credit and when note fell due Garman had to execute a further note to bank, the record supporting the trial court's finding that the parties agreed defendant's interest in the land would stand as security for the<page_number>Page 147</page_number> debt, but that Allen never redeemed his interest by payment, the note being paid by Garman: Held — Garman had an equitable lien upon Allen's interest and his furnishing the money was sufficient performance to avoid operation of the statute of frauds, and Allen's right of action to recover a half interest in the land was barred when brought more than five years after maturity of the debt.

(Syllabus.) APPEAL AND ERROR — REVIEW — <italic>Failure of</italic> <italic>defendant in error to file brief — Reversal.</italic> Where the plaintiff in error has served and filed brief, but the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may,<page_number>Page 151</page_number> where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause, with directions.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Relationship of master</italic> <italic>and servant created, where one employs another to haul coal</italic> <italic>on a per ton basis.</italic> Where one employs another to haul coal on a per ton basis and superior control and direction of the manner, method and time of performing the work is retained by the employer and party paying such compensation, the relation created is that of master and servant and not that of principal and independent contractor. 2. SAME — <italic>Sufficiency of evidence to sustain finding</italic> <italic>claimant sustained</italic> 10 <italic>per cent permanent partial disability</italic> <italic>to body as a whole, when injured while in employ of</italic> <italic>respondent.</italic> Record examined; held, sufficient to sustain finding of the State Industrial Commission that claimant while in the employ of respondent sustained an accidental personal injury, that such injury arose out of and in the course of his employment, and as a result thereof he sustained a 10 per cent permanent partial disability to his body as a whole. 3. SAME. — <italic>Authority of Industrial Commission to</italic> <italic>commute to lump sum any award for permanent disability,</italic> <italic>either total or partial.</italic> The State Industrial Commission in entering an award for permanent disability, either total or partial, may in its discretion require such award to be paid in a lump sum. 85 O. S. 1941 § 41. This rule applies whether the award be for disability resulting from a specific member injury under 85 O.S. 1941 § 22[<cross_reference>85-22</cross_reference>], subd. 1, or for a non-specific injury coming under the "other cases" provision of the statute. 85 O.S. 1941 § 22[<cross_reference>85-22</cross_reference>], subd. 3.

(Syllabus.) TAXATION — <italic>Exemption of gifts to religious,</italic> <italic>charitable or educational institutions extends to and</italic> <italic>embraces those institutions existing under laws of another</italic> <italic>state.</italic> The provision of 68 O.S. 1941 § 1043[68-1043], subdivision (a)(1), exempting from taxation gifts made to institutions, fraternal societies, associations, funds, trusts, or corporations which may be organized and existing and actually engaged in carrying out benevolent, charitable, educational or religious purposes, extend to and embrace gifts made to all members of the classes enumerated in subdivision 1, including those incorporated or existing under the laws of another state, and which are not engaged in carrying out their benevolent, charitable, educational or religious purposes in this state.

(Syllabus.) ADMINISTRATIVE LAW AND PROCEDURE — WORKMEN'S COMPENSATION — <italic>Duty of Industrial Commission as to findings of fact and</italic> <italic>conclusions of law.</italic> It is the duty of the State Industrial Commission to make specific findings of the ultimate facts responsive to the issues as well as the conclusions of law upon which an order is made granting or denying an award of compensation to a claimant.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Employment as general</italic> <italic>salesman in retail mercantile establishment not</italic> <italic>"hazardous.</italic>" The employment of a person as a general salesman in a retail mercantile establishment is not a hazardous employment within the meaning of the Workmen's Compensation Act, 85 O.S. 1941 § 2[<cross_reference>85-2</cross_reference>]. 2. SAME — <italic>Requisite conditions for award of</italic> <italic>compensation.</italic> The Industrial Commission has jurisdiction to enter an award for compensation to a claimant only when claimant, at the time of his injury, was engaged in performing manual or mechanical labor in an employment enumerated and defined as hazardous by the Workmen's Compensation Act, or was doing some act incident to or an integral part of such employment. 3. SAME — <italic>Insufficiency of evidence to sustain award</italic> <italic>of Industrial Commission.</italic> Record examined, held evidence insufficient to sustain the award of the State Industrial Commission.

(Syllabus.) WAR AND NATIONAL DEFENSE — <italic>Individual bringing action</italic> <italic>under Price Control Act for overcharge must allege and prove</italic> <italic>merchandise was purchased for use other than in course of</italic> <italic>trade or business.</italic> A plaintiff bringing an action under the Ernergency Price Control Act, 50 U.S.C.A. App. § 925(e), for an overcharge on merchandise purchased, may not successfully maintain such action unless his petition alleges, and his proof establishes, that the merchandise purchased was for use or consumption other than in the course of trade or business. In the absence of such pleading and proof, the right to maintain the action is, by the provisions of said statute, vested exclusively in the Price Administrator.

(Syllabus.) 1. STATES — <italic>State park improvement bonds issued by</italic> <italic>Oklahoma Planning and Resources Board held not, when</italic> <italic>issued, an indebtedness of the state in violation of</italic> <italic>constitutional provisions.</italic> State park improvement bond issued by the Oklahoma Planning and Resources Board under authority granted by chapter 12(a), Title 74, S.L. 1947 (74 O.S. 1947 Supp. §§ 356.1, 356.20, inclusive), which bonds expressly provide that they are payable solely from revenue to be derived from the operation of the state park for the improvement of which they are issued, and that they are not an indebtedness of the State of Oklahoma, or the Board, do not constitute, when issued, an indebted of the State of Oklahoma violation of section 23, art. 10, of the Constitution, as amended and approved on March 11, 1941, or of sections 24 and 25, art. 10, of the Constitution. 2. STATES — <italic>Validity of lease agreement for lease of</italic> <italic>improvements to be constructed with proceeds of bond</italic> <italic>issue.</italic> Record examined, and held, that the lease of the improvements to be constructed with the proceeds of the above mentioned bond issue, entered into between the Board and<page_number>Page 179</page_number> a solvent lessee, a copy of which is submitted with the application for approval of the bonds, is in proper form, and its provisions are in accordance with the requirements of section 8 of said chapter 12(a). Held, further, that the fact that the lease was executed at a time when the improvements covered thereby have not been erected does not render it invalid. 3. SAME — <italic>Creation of improved areas, and charging</italic> <italic>of fees for admission to such improved areas not prohibited</italic> <italic>by statute.</italic> The creation of improved areas within the park upon which the improvements to be paid for by the bond issue are to be constructed, and the charging of fees for admission into such improved areas, is not, if such fees are necessary, in addition to the other revenues derived from the operation of the park, to retire the bonds issued, inconsistent with nor contrary to the provisions of said chapter 12(a), supra. 4. PUBLIC LANDS — <italic>Realty owned by state and used for</italic> <italic>specific purpose not part of "public lands."</italic> Real estate owned by the state which has been designated for use for some specific state governmental purpose and is occupied and used therefor is not a part of the "public lands" of the state within the meaning of section 32, art. 6, of the Constitution. 5. STATES — <italic>Resolution of Board and issuance of</italic> <italic>bonds pursuant thereto, held not violative of</italic> <italic>constitutional provisions.</italic> For the reasons stated in the opinion, neither the resolution of the Board providing for said bond issue, nor the issuance of the bonds pursuant thereto, are violative of section 23(a), art. 10, of the Constitution.

(Syllabus.) 1. TRIAL — <italic>Repetition in instructions of itself not</italic> <italic>reversible error unless appearing to mislead jury.</italic> Ordinarily, repetition in instructions, of itself is not reversible error unless it clearly appears to have misled the jury. 2. APPEAL AND ERROR — <italic>Prejudicial error in failure</italic> <italic>of court to submit by proper instruction theory of defense</italic> <italic>to jury.</italic> In a case tried to a jury, where the evidence tends to support the same, it is the duty of the court to submit by appropriate instructions the theory of the defense; and failure so to do, at the request of defendant, constitutes prejudicial error.

(Syllabus.) CONTRACTS — <italic>Sale of good will of business with</italic> <italic>provision in restraint of trade only partially void under</italic> <italic>statutes.</italic> Under 15 O.S. 1941 §§ 217[<cross_reference>15-217</cross_reference>] and 218, the contract of one who sells the good will of a business which provides that the seller will not engage in a like business within the town and contains no reference to the duration of the restriction, is not wholly void, but is only void to the extent that it prohibits the seller from engaging in such business in the town after the buyer, or any person deriving title to the good will from him, no longer carries on a like business therein, and such contract is valid and enforceable by the buyer carrying on the business, and continuously, since the contract was entered into.

(Syllabus.) 1. CARRIERS — <italic>Duty of servant of street car company</italic> <italic>to use due care in starting car to allow passenger</italic> <italic>reasonable time to get safely aboard.</italic> The servant of a street car company who controls the movement of its car is bound to use due care in starting the same so as to allow a passenger reasonable opportunity to get safely on board, regard being had to the circumstances of each case. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>warrant submission of case to jury and to sustain</italic> <italic>verdict.</italic> Evidence held sufficient to warrant the submission of the case to the jury, and to sustain the verdict rendered.

(Syllabus.) 1. INTEREST — <italic>Interest on unliquidated account</italic> <italic>recoverable when exact amount due fixed by judgment.</italic> Interest on an unliquidated account or claim under contract is not recoverable until the exact amount due is fixed by judgment. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain judgment of trial court.</italic> The finding of a jury and judgment of the court thereon will not be disturbed on appeal where there is any competent evidence reasonably tending to support the same.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Sufficiency of evidence</italic> <italic>to support award of State Industrial Commission.</italic> The cause and extent of a disability resulting from an accidental injury are questions of fact and if there is any competent evidence reasonably tending to support the finding of the State Industrial Commission an award based on such finding, and otherwise properly made, will not be disturbed on review. 2. SAME — <italic>Award not conjectural, though different</italic> <italic>finding justified.</italic> An award under the Workmen's Compensation Law cannot be said to be conjectural, or unsupported by evidence, merely because<page_number>Page 199</page_number> the evidence on which it is based might have justified a different finding.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Employee must be</italic> <italic>"physically impaired person", as defined by statute, to</italic> <italic>receive benefits of Special Indemnity Fund.</italic> An employee must be a "physically impaired person" as defined by 85 O.S. 1943 Supp. § 171, to receive the benefits of the Special Indemnity Fund Act. 2. SAME — <italic>Industrial Commission must show existence</italic> <italic>of its jurisdiction of record.</italic> Industrial Commission, being an administrative fact-finding board with certain judicial powers, is a quasi-judicial body, but, unlike courts of record, it must not only determine its jurisdiction but must show the existence of its jurisdiction of record. 3. SAME — <italic>Necessary for Commission to show injured</italic> <italic>employee was a physically impaired person at the time he</italic> <italic>sustained his last injury.</italic> Before the State Industrial Commission has power to enter an award against Special Indemnity Fund in favor of an injured employee who had sustained a previous injury, it is necessary and essential that the commission first find that at the time such employee sustained his last or compensable injury he was a physically impaired person as that term is defined by statute. In the absence of such finding the commission is without jurisdiction to enter an award against Special Indemnity Fund.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Denial of award for</italic> <italic>claimant's failure to give statutory notice of injuries, or</italic> <italic>to show facts excusing such failure.</italic> Under 85 O.S. 1941 § 24[<cross_reference>85-24</cross_reference>], the burden is on the injured employee to establish to the satisfaction of the State Industrial Commission that he was unable to give the statutory written notice, or that the employer has not been prejudiced thereby; and where the State Industrial Commission denies an award for failure to give the statutory notice and there is any evidence reasonably tending to support the order denying the award, the decision of the State Industrial Commission will not be disturbed on review.

(Syllabus.) SCHOOLS AND SCHOOL DISTRICTS — <italic>Mandatory duty of</italic> <italic>county excise board to make levy of not to exceed one mill</italic> <italic>for school building fund, upon certification of such need,</italic> <italic>without itemization and notice.</italic> Article 10, sec. 9, as amended November 5, 1946, constitutes a grant of power to governing boards and county excise boards; certification by such a governing board of the need for a levy for separate school building fund purposes casts upon the county excise board the mandatory duty to make a levy not to exceed one (1) mill; statutes requiring itemization of estimated needs and notification thereof have no application.

(Syllabus.) 1. JUDGMENT — Power of courts over judg<italic>ments during</italic> <italic>term not impaired by statutes prescribing grounds for new</italic> <italic>trials.</italic> The inherent common-law power of courts over their judgments during the term at which they are rendered is not impaired by<page_number>Page 216</page_number> statutes prescribing the grounds for new trials. 2. SAME — <italic>Vacation of judgment by granting new</italic> <italic>trial.</italic> Granting a new trial is a proper method of vacating a judgment. 3. APPEAL AND ERROR — JUDGMENT — <italic>Granting new</italic> <italic>trial during term judgment rendered, held not an abuse of</italic> <italic>discretion.</italic> Where the trial court awards a new trial during the same term in which judgment in the cause was rendered, its action will not be disturbed on appeal unless it clearly appears that its discretion was abused.

(Syllabus.) 1. JUDGMENT — <italic>When judgment non obstante veredicto</italic> <italic>authorized.</italic> When a jury has returned its verdict, the trial court is without jurisdiction to enter judgment non obstante veredicto, unless (1) the party in whose favor judgment is rendered would be entitled to judgment on the pleadings, or (2) the jury has returned special findings of fact contrary to the general verdict. 2. SAME — <italic>Presumptions favoring trial court's</italic> <italic>jurisdiction to render judgment.</italic> In the absence of any showing to the contrary in the judgment or judgment roll of a domestic court of general jurisdiction, it is always presumed that said court possessed the jurisdiction to render such judgment until such presumption is overcome by cogent and convincing evidence.

(Syllabus.) 1. APPEAL AND ERROR — NEGLIGENCE — <italic>Conclusiveness of verdict on question of contributory</italic> <italic>negligence in personal injury case.</italic> Contributory negligence is a question of fact for the jury and the court's judgment on verdict will not be disturbed on appeal where there is any competent evidence reasonably tending to support the same. 2. TRIAL — <italic>Where instructions as a whole present law</italic> <italic>applicable to issues, judgment on verdict of jury not</italic> <italic>disturbed.</italic> When instructions, considered as a whole, fairly present law applicable to issues, a judgment on the verdict of the jury will not be disturbed.

(Syllabus.) LIMITATION OF ACTIONS — <italic>Action on open account</italic> <italic>— Burden of proof on plaintiff to show payment was made at</italic> <italic>time stated, to toll statute where issue joined thereon.</italic> Where an entry of credit on an open account, made in the books of the creditor, is relied upon to save the account from the bar of the statute of limitations, and issue is properly joined thereon, the burden<page_number>Page 225</page_number> is upon the plaintiff to show that such payment was made at the time stated, by or with the consent of the debtor.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>City ordinance —</italic> <italic>Failure of city clerk to record proceedings does not</italic> <italic>invalidate ordinance.</italic> 11 O.S. 1941 § 580[11-580], as amended by section 2, ch. 14, S.L. 1943, p. 32, 11 O.S. 1941 Supp. 1947 § 580[41-580], is merely directory, and the failure of the city clerk to record upon his journal the proceedings of the city council in passing an ordinance does not invalidate such ordinance. 2. SAME — <italic>Contract by city for purchase of parking</italic> <italic>meters not binding on future city councils or</italic> <italic>officers.</italic> A contract entered into by a city for the purchase of parking meters, which provides that the title shall remain in the seller until the meters are paid for in full, and that if the city fails or refuses to enforce the ordinance and resolution authorizing the purchase of said meters and providing for their operation, the seller may retake possession of the meters and retain all payments on the contract price as liquidated damages, does not bind future city councils or officers to perform such contract. 3. SAME — <italic>Conditions rendering parking meter</italic> <italic>ordinances valid regardless of fact streets laid out upon</italic> <italic>Indian lands, absent objections by restricted Indians or</italic> <italic>Secretary of Interior.</italic> A parking meter ordinance is a valid exercise of the police powers of the city in the regulation of its streets, and the fact that the streets are laid out upon restricted Indian lands does not preclude the city from enacting such an ordinance and enforcing it, in the absence of any objection by the restricted Indians, or the Secretary of the Interior, to subjecting the streets to such use.

(Syllabus.) 1. COURTS — <italic>Power and jurisdiction of courts limited</italic> <italic>to terms of special statute.</italic> When a court, either of limited or general jurisdiction, assumes to act under a special statute which specifically submits the questions to be determined, the power and jurisdiction of the court in that proceeding are limited by the terms of the act and any act done or decision rendered outside of and beyond the limits of the jurisdiction so specifically conferred are in excess of jurisdiction and void. 2. INTOXICATING LIQUORS — LICENSES — <italic>Applicant</italic> <italic>possessing all statutory qualifications entitled to</italic> <italic>issuance of license to sell nonintoxicating beverages.</italic> Section 11, Chapter 2, Title 37, S. L. 1947, specifically enumerates the questions to be determined by the county judge on the initial hearing on an application for a retail dealer's license to sell nonintoxicating beverages, and when the court affirmatively finds in favor of the applicant upon each and all of the questions submitted for determination, such applicant is entitled to the issuance of a license, and the further action of the county court, or the judge thereof, in refusing to issue such license because of proof on extraneous matters is in excess of jurisdiction and void. 3. CERTIORARI — <italic>Certiorari proper remedy to bring</italic> <italic>record of proceedings to this court, where court, or judge,</italic> <italic>acts outside of jurisdiction.</italic> Where a court, or the judge thereof, acts outside of and beyond the jurisdiction conferred upon him by law and there is no provision in the special act under which he proceeds for correction of this erroneous assumption of jurisdiction by appeal, certiorari is a proper remedy to bring the record of those proceedings to this court for review.

(Syllabus.) 1. TRUSTS — <italic>Constructive trust — One acquiring</italic> <italic>legal title to property to which another has better</italic> <italic>right.</italic> The principle is well settled that, where one party has acquired the legal title to property to which another has the better right, a court of equity will convert him into a trustee of the true owner. 2. VENDOR AND PURCHASER — <italic>Bona fide purchaser</italic> <italic>— Forged deed void and ineffective as muniment of title.</italic> A forged deed is void, and the same, though recorded in due form, is ineffective as a muniment of title, even as to subsequent purchasers in good faith, for value, without notice. 3. SAME — <italic>Constructive notice sufficient to put</italic> <italic>prudent man upon inquiry.</italic> Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself.

(Syllabus.) 1. NEGLIGENCE — <italic>Question of fact for jury under</italic> <italic>conflicting evidence as to negligence of each defendant as</italic> <italic>contributing concurrent cause of injury.</italic> In action for damages against two or more defendants based on alleged separate and individual concurring acts of negligence, question of negligence of each defendant and whether such negligence, if proved, was contributing concurrent cause of injury are questions for jury where evidence with respect thereto is in conflict. 2. SAME — <italic>Each of several tort feasors responsible</italic> <italic>for entire result of their concurring negligence causing</italic> <italic>single injury.</italic> Where, although concert is lacking, the separate and independent acts or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or negligence alone might not have caused it. 3. APPEAL AND ERROR — <italic>In action for personal</italic> <italic>injuries, evidence, not contradicted by physical facts,</italic> <italic>held to reasonably support finding of jury, and verdict not</italic> <italic>disturbed on appeal.</italic> Where the testimony of a witness in a civil action for personal injuries, tried to a jury, is contradicted and shown by physical facts in evidence to be impossible or false, the verdict of a jury based upon such testimony should not be permitted to stand; but where there is other evidence, not so affected by the physical facts, and which reasonably supports the finding of the jury, their verdict and the judgment based thereon will not be disturbed on appeal. 4. SAME — <italic>Review — Sufficiency of evidence to</italic> <italic>support verdict.</italic> Where there is any competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors are shown in the instructions of the court or its rulings on law questions during the trial, the verdict and findings of the jury will not be disturbed on appeal.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Person seeking award</italic> <italic>against principal employer of independent contractor, under</italic> <italic>Workmen's Compensation Law, must be established as employee</italic> <italic>of said contractor.</italic> Before an award can be made against a principal employer of an independent contractor under the provisions of 85 O. S. 1941 § 11, it must appear that the person seeking to enforce the liability against the principal employer is an employee of such independent contractor. 2. SAME — <italic>Evidence held to sustain finding of</italic> <italic>Industrial Commission denying award against principal</italic> <italic>employer.</italic> Where it is sought to hold the principal employer under the provisions of 85 O. S. 1941 § 11, and an order has been entered by the State Industrial Commission denying an award, this court will review the evidence and where it in substance supports the finding of the State Industrial Commission made thereon, such order will be sustained. 3. SAME — <italic>Whether relation of master and servant</italic> <italic>exists determined from all facts and circumstances.</italic> The question of whether the relation of master and servant exists is one of law to be determined from all the facts and circumstances in the case.

(Syllabus.) 1. SALES — <italic>Proper filing of conditional sales</italic> <italic>contract in another state operative as notice for 120 days</italic> <italic>after removal of property to this state.</italic> A conditional sales contract properly filed in another state, from which mortgaged personalty was removed to this state and<page_number>Page 257</page_number> sold by mortgagor, imported constructive notice in state (county) to which property was taken to subsequent purchasers, incumbrancers and creditors for 120 days after such removal. 2. ACKNOWLEDGMENT — <italic>Omission of name in</italic> <italic>acknowledgment not material where certificate shows grantor</italic> <italic>personally appeared and acknowledged instrument.</italic> Omission of the acknowledger's name in certificate of acknowledgment is not material where it sufficiently appears the grantor and no other person personally appeared and acknowledged the instrument. 3. SALES — <italic>Allegations of execution of conditional</italic> <italic>sales contract in another state not put in issue in</italic> <italic>unverified answer.</italic> An unverified answer does not put in issue allegations of execution of conditional sales contract executed in another state. 4. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>support judgment.</italic> The findings of a properly instructed jury and judgment of the court thereon will not be disturbed on appeal where there is any competent evidence tending to support the same.

(Syllabus.) 1. PROCESS — <italic>Statutes prescribing manner of service</italic> <italic>of summons mandatory.</italic> Statutes prescribing the manner of service of summons are mandatory and must be strictly complied with in order to vest the court with jurisdiction. 2. SAME — JUDGMENT — <italic>Valid service of summons upon two</italic><italic>defendants who are members of same family requires that a copy</italic><italic>of summons for each defendant be left with member of family.</italic> Where two defendants are members of the same family, the service of one copy of a summons upon another member of the family for both defendants does not comply with the requirements of 12 O.S. 1941 § 159[<cross_reference>12-159</cross_reference>], and is insufficient to confer jurisdiction upon the court out of which the summons issued, and a default judgment rendered upon such service against one of said defendants is void on the face of the record. 3. APPEAL AND ERROR — <italic>Correct judgment for which</italic> <italic>trial court gives wrong reason.</italic> Where the trial court gives the wrong reason for its judgment or considers immaterial issues, if the result is correct, it will not be set aside on appeal. 4. JUDGMENT — <italic>Void judgment may be vacated at any</italic> <italic>time on motion of party affected thereby.</italic> A void judgment may be vacated at any time on motion of a party or any person affected thereby. 12 O.S. 1941 § 1038[<cross_reference>12-1038</cross_reference>].

(Syllabus.) 1. TRUSTS — <italic>"Resulting trust" defined.</italic> A resulting trust arises by operation of law where the legal estate in property is disposed of, conveyed or transferred, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title. 2. SAME — <italic>Resulting trust established by parol</italic> <italic>evidence.</italic> A resulting trust may be established by parol evidence, but the law requires that the proof necessary to establish it should be of the most satisfactory kind. 3. APPEAL AND ERROR — <italic>Finding that resulting trust</italic> <italic>existed held not against clear weight of evidence.</italic> A finding or decree of the trial court of the existence of a resulting trust based upon oral evidence as to the facts and circumstances will not be disturbed upon appeal where the evidence with reference thereto is clear, unequivocal, convincing and decisive.

(Syllabus.) AUTOMOBILES — <italic>Corporation Commission may authorize</italic> <italic>Class "A" Motor Carrier to operate through service between</italic> <italic>terminal points only on showing such service demanded</italic><page_number>Page 275</page_number><italic>by public convenience and necessity.</italic> Where a party holds two certificates of public convenience and necessity as a Class A motor carrier, permitting the transportation of freight from two terminal points to a city between such points, the Corporation Commission may not authorize such party to link together or combine the service provided by the two certificates so as to permit him to operate a through service between the two terminal points in competition with others holding certificates authorizing them to conduct such through service, without first issuing a certificate of convenience and necessity to such party under the provisions of 47 O. S. 1941 § 166.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Right of employee to</italic> <italic>refuse to submit to major operation involving risk of</italic> <italic>life.</italic> The State Industrial Commission is without jurisdiction to order the injured employee to submit to a major operation involving a risk of life, however slight, merely in order that the pecuniary obligations created by the law in his favor against his employer may be minimized. 2. SAME — <italic>Computation of average weekly wage where</italic> <italic>claimant worked for two employers.</italic> In a proceeding before the State Industrial Commission where, in computing the average weekly wage of claimant, he has not worked in the same employment for substantially the whole of one year next preceding the accidental injury, but has during that time worked for another employer at a different wage rate, and none of the provisions in subdivisions 1, 2 or 3, 85 O.S. 1941 § 21[<cross_reference>85-21</cross_reference>], is applicable, then subdivision 4 may be applied and the average weekly wage shall be 1/52 part of his average annual earnings.

(Syllabus.) 1. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION — <italic>Price-Control in industry affecting public health, safety</italic> <italic>and general welfare, is constitutional unless arbitrary,</italic> <italic>discriminatory, or unreasonable.</italic> Price control in an industry affecting the public health, safety and general welfare, like any other form of regulation, is constitutional unless arbitrary, discriminatory, unreasonable or demonstrably irrelevant to the policy the Legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. 2. SAME — <italic>Minimum prices fixed by State Dry</italic> <italic>Cleaners' Board held not discriminatory, arbitrary or</italic> <italic>unreasonable.</italic> Record examined, and held, the minimum prices fixed by the State Dry Cleaners' Board are not discriminatory, arbitrary or unreasonable.

(Syllabus.) 1. PAYMENT — <italic>No right to recover voluntary payment</italic> <italic>made with knowledge of facts.</italic> Money voluntarily paid under a claim of right to the payment, and with knowledge of the facts by the person making the payment, cannot be recovered on the ground that the claim was illegal, or that there was no liability to pay in the first instance. 2. PLEADING — <italic>Consideration of motion for judgment</italic> <italic>on pleadings.</italic> A motion for judgment on the pleadings searches the whole record, and a judgment may be rendered for the party, either the movant or his adversary, entitled thereto as the record then stands, but the motion can never prevail unless upon the facts established by the pleadings, the court, as a matter of law, can pronounce a judgment on the merits for one or the other of the parties.

(Syllabus.) 1. DIVORCE — <italic>Change of domicile after commencement</italic> <italic>of suit.</italic> In an action for a divorce where the evidence shows that plaintiff was an actual resident in good faith of the state for more than one year next preceding the filing of the petition and was an actual resident in good faith of the county at the time the petition was filed and summons issued, the fact that plaintiff thereafter and before trial leaves the state and establishes a permanent residence in another state, will not deprive the court of jurisdiction to hear the case and enter a judgment therein. 2. APPEAL AND ERROR — CONTINUANCE — <italic>Discretion</italic> <italic>of court as to continuance on account of absence of</italic> <italic>counsel.</italic> The granting or refusing of a continuance on account of absence of counsel is a matter of discretion with the trial court, and, unless it appears that such discretion was abused to the prejudice of the substantial rights of a litigant, the action of the court will not be disturbed upon appeal. 3. DIVORCE — <italic>"Extreme cruelty" in absence of any</italic> <italic>great physical violence as grounds of divorce.</italic> There may be a divorce on the ground of "extreme cruelty" in the absence of any great physical violence when there is conduct or treatment which destroys the concord, harmony, happiness, and affection of the parties, and the legitimate aims, objects, purposes and ends of matrimony. 4. SAME — <italic>Evidence of cruel treatment subsequent to</italic> <italic>filing suit admissible in corroboration of previous ill</italic> <italic>treatment.</italic> In an action for divorce based on extreme cruelty, evidence as to conduct and statements made by the defendant occurring subsequent to the filing of the petition and indicating cruel treatment, while inadmissible in evidence for the purpose of establishing ground for divorce, such evidence may be<page_number>Page 293</page_number> admitted and considered by the court in so far as it lends weight to and is corroborative of testimony of plaintiff as to prior acts of ill treatment. 5. APPEAL AND ERROR — <italic>Judgment granting divorce not</italic> <italic>reversed for insufficiency of evidence unless clearly</italic> <italic>against weight thereof.</italic> A judgment of the trial court in a divorce action granting a divorce will not be reversed by this court on appeal because of insufficiency of evidence unless it can be said that the judgment rendered is clearly against the weight thereof.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal of frivolous</italic> <italic>appeal.</italic> Where a proceeding to review a judgment of the trial court is filed in the Supreme Court and upon the presentation of a motion to dismiss the appeal as frivolous the plaintiffs in error are directed to respond and no response is filed and no excuse for failure to respond is made, this court may, in its discretion, dismiss the appeal as frivolous.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Change of condition</italic> <italic>warranting additional award.</italic> The State Industrial Commission is authorized to make an additional award on the ground of a change in condition when the proof shows that there has been a physical change for the worse in the condition of the employee due to the original injury and that such change has occurred since the last prior order of the commission. 2. SAME — <italic>Sufficiency of evidence to sustain</italic> <italic>award.</italic> Record examined, held, evidence sufficient to sustain the finding of the commission.

(Syllabus.) JUDGMENT — <italic>Correction by nunc pro tunc order of error</italic> <italic>in judgment rendered by judge whose term of office has</italic> <italic>expired.</italic> In a proceeding before a judge of a court of record to correct alleged error, by an order nunc pro tunc, in a judgment entered in such court by a judge whose term of office has expired, the court is authorized to make such corrections as will make the judgment conform to the true judgment rendered as shown by the whole record.

(Syllabus.) 1. NEGLIGENCE — <italic>Elements in general.</italic> To constitute actionable negligence, where the wrong is not willful or intentional, three essential elements are necessary: (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff proximately resulting from such failure. 2. SAME — <italic>Proximate cause fo injury.</italic> In all cases there must be a causal connection between the negligence pleaded and the injury received before there can be a recovery, and such negligence must be the proximate cause of the injury. 3. SAME — <italic>Insufficiency of plaintiff's evidence as</italic> <italic>to causal connection between negligence of defendant and</italic> <italic>injury to decedent — Demurrer sustained.</italic> Where all of plaintiff's evidence, together with all inferences and conclusions to be reasonably drawn therefrom, is insufficient to point out clearly a causal connection between the alleged negligence of defendant and injury to plaintiff's decedent, the action of the trial court in sustaining a demurrer thereto is proper. 4. MASTER AND SERVANT — <italic>Defendant's demurrer to</italic> <italic>evidence held properly sustained.</italic> Record examined, and held, that action of trial court in sustaining demurrer to evidence of plaintiff was proper.

(Syllabus.) 1. APPEAL AND ERROR — <italic>On appeal petition considered</italic> <italic>amended to conform with proof.</italic> Where both parties in the trial court introduce proof and try a case and judgment is rendered upon a theory not covered by the allegations of the petition, which could have been amended to conform with the proof under the authority of 12 O. S. 1941 § 317, this court on appeal will review the same as though the amendment had been made. 2. DEEDS — <italic>Test of mental capacity of grantor to</italic> <italic>make conveyance.</italic> The test of capacity to make a deed is that the grantor shall have the ability to understand the nature and effect of the act in which he is engaged and the business he is transacting. 3. SAME — <italic>Presumption of mental capacity to make</italic> <italic>conveyance — Burden of proof on one alleging incapacity.</italic> A grantor in making a conveyance is presumed to have mental capacity sufficient for that purpose and the burden of proof is upon the one who alleges the want of such capacity.

(Syllabus.) BILLS AND NOTES — <italic>Action on promissory note —</italic> <italic>Threat to foreclose mortgage on failure to execute renewal</italic> <italic>note not duress or fraud.</italic> A threat by the holder of a promissory note, secured by mortgage, to foreclose such mortgage unless renewal note is executed, does not constitute such fraud, duress, or undue influence as will justify relief from liability under such note, since a threat to do what one has a lawful right to do does not constitute duress or fraud.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Duty of Commission to find</italic> <italic>the degree of impairment resulting from combination of</italic> <italic>multiple injuries which made claimant a physically impaired</italic> <italic>person, and deduct same together with award for last injury</italic> <italic>from total award before assessing remainder against the</italic> <italic>Special Indemnity Fund.</italic> Where one who is a physically impaired person by reason of two or more injuries compensable under the Workmen's Compensation Law which may be combined so as to constitute a percentage of permanent partial disability to the body as a whole, sustains a subsequent compensable injury, which is combinable with the prior injuries, the State Industrial Commission, before it can make an award against the Special Indemnity Fund, must first determine and find from the competent evidence the permanent disability, if any, to claimant's body as a whole resulting from the combination of the prior injuries with the last injury. If it finds from such evidence that the combination of all of said injuries results in permanent partial disability in a degree materially greater than that which would have resulted from the last injury alone it should fix the amount of the award to which claimant is entitled by reason of the combination of all of said injuries. It should then determine and find the amount of the award to which claimant would be entitled for the last injury standing alone, and should make an award against the last employer for such injury. It should then find and determine from the competent evidence the percentage of permanent partial disability, if any, to claimant's body as a whole resulting from the combination of the prior injuries which constituted claimant a physically impaired person. It should then deduct from the amount of the award made for the combined disability resulting from all of said injuries the amount of the award made against the employer for the last injury, and should also deduct the amount attributable to the disability to the body as a whole resulting from the combination of the prior injuries which rendered claimant a physically impaired person. The amount, if any, remaining after such deductions were made would, under the provisions of the 1945 Law, 85 O. S. 1947 Supp., section 172, be that portion of the award for which Special Indemnity Fund would be liable, and for which an award could be made against it.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Street improvement bonds</italic> <italic>— Lien of bonds not extinguished and duty of county</italic> <italic>treasurer to sell not impaired by 1939 act.</italic> When the holder of street improvement bonds issued under the provisions of the Revised Laws of 1910, art. 12, chap. 10, files an agreement to accept Street Improvement Refunding Bonds therefor under the provisions of 11 O. S. 1941 §§ 241, 242, 242o, Session Laws 1939, p. 156, the lien of the bonds is not extinguished by that act, though the refunding bonds are not issued; and the county treasurer may proceed by sale for enforcement of the lien in the same manner as for the enforcement of liens for other taxes.

(Syllabus.) 1. ADMINISTRATIVE LAW AND PROCEDURE — WORKMEN'S COMPENSATION — <italic>Nature of hearing — Trial de novo not</italic> <italic>afforded.</italic> The hearing on appeal to the State Industrial Commission en bane does not contemplate, require, nor afford a trial de novo; such appeal contemplates a hearing on questions of law and fact, or mixed questions of law and fact, to be determined on the record made before the trial commissioner. 2. STATUTES — <italic>Conflict of statutes — Statute</italic> <italic>last enacted held to prevail.</italic> Where two statutes are in part in conflict with each other, the one last passed which is a later declaration of the Legislature should prevail, and it will supersede and effect a modification of the former statute to the extent of such conflict. 3. WORKMEN'S COMPENSATION — <italic>Evidence insufficient to</italic> <italic>sustain award for permanent partial disability as a whole</italic> <italic>resulting from combination of two specific injuries.</italic> Where the evidence before the State Industrial Commission shows that a claimant sustained two specific member injuries, and the medical testimony shows only the disability resulting from each accidental injury considered as standing alone, such evidence is not sufficient to sustain an award for permanent partial disability to the body as a whole resulting from a combination of said injuries, Medical proof is necessary on that point.

(Syllabus.) 1. ACTION — <italic>Liability of joint tort-feasors —</italic> <italic>Splitting of cause of action not permitted in expectation</italic> <italic>of having separate recoveries for single wrong.</italic> A joint tort gives rise to but a single cause of action, and a plaintiff may proceed jointly or severally against each or all of the wrongdoers until satisfaction of the cause of action has been received, but may not split the cause of action with the expectation of having separate recoveries and separate satisfactions for the single wrong. 2. DEATH — <italic>Judgment in wrongful death action under</italic> <italic>Federal Employers' Liability Act full determination of</italic> <italic>cause of action.</italic> A judgment entered in a wrongful death action under the Federal Employers' Liability Act for an amount agreed upon by the parties, in which case liability was determined by the court upon issues joined, constitutes a full determination of the cause of action, and upon satisfaction of the judgment so entered the cause of action is extinguished, though the court in the journal entry of judgment undertakes to reserve to plaintiff the right to sue other joint tort-feasors as agreed upon by the parties in their contract of settlement; that portion of the judgment reserving the action as to other joint tort-feasors is in excess of the court's authority and ineffectual.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Applicability of</italic> <italic>statutes to foreclosure of special assessment liens.</italic> The provisions of 11 O. S. 1941 § 242 are applicable to foreclosure of special assessment liens by tax sale and resale as well as by civil action. 2. SAME — <italic>When property absolved of lien of street</italic> <italic>improvement bonds — County treasurer barred from selling</italic> <italic>for delinquent assessments levied for payment of bonds.</italic> After the time provided in 11 O. S. 1941 § 242, for the commencement of proceedings to preserve or enforce the lien of street improvement bonds has expired, the property against which such bonds theretofore represented a lien is absolved of such lien and the county treasurer is barred from selling and is without authority to sell the property for delinquent assessments levied for the payment of the bonds. 3. MUNICIPAL CORPORATIONS — CONSTITUTIONAL LAW — <italic>Provision of limitation statutes held not to impair</italic> <italic>obligation of contract, and not violative of the due</italic> <italic>process clause, or equal protection clause of either the</italic> <italic>State or Federal Constitutions.</italic> The provisions of 11 O. S. 1941 § 242, that the running of the period of limitation therein fixed "shall be an absolute bar to any action or proceeding brought thereafter, whether the same is plead as a defense or not, and the property against which such bonds theretofore represented a lien shall thereafter be, by operation of law, absolved of any lien or liability on account of said bonds," is but a part of, and is intended to make effective, the statute of limitations therein, and the same does not unconstitutionally impair the obligation of the contract, nor does it violate the due process clause or the equal protection clause of either the State or Federal Constitution.

(Syllabus.) 1. EXECUTORS AND ADMINISTRATORS — <italic>Validity of order</italic> <italic>for payment to widow of family allowance.</italic> An order for the payment to widow of family allowance is not invalid for failure to especially find that the property exempt from execution, and set apart for the support of the widow, is insufficient. 2. SAME — <italic>Reasonable allowance for support of widow</italic> <italic>during administration of property.</italic> Tit. 58 O. S. 1941 § 314, requiring the court to make a reasonable allowance for support of the family, to continue during administration if property set apart to them be insufficient, applies to a widow to whom sufficient property has not been set apart although she may have enough of her own for her support. 3. APPEAL AND ERROR. — <italic>Discretion of trial court as</italic> <italic>to amount of allowance for family support.</italic> The amount of the allowance for family support rests largely in the sound discretion of the county court and of the district court when tried de novo on appeal, and unless this discretion has been abused its action will not be disturbed. 4. EXECUTORS AND ADMINISTRATORS — <italic>Sufficiency of</italic> <italic>evidence to support order fixing allowance of widow at $300</italic> <italic>per month.</italic> Record examined; held, that the order of the district court fixing the allowance of the widow at $300 per month is supported by the evidence. 5. SAME — <italic>Family allowance granted widow pending</italic> <italic>administration of estate properly chargeable against assets</italic> <italic>of estate.</italic> The family allowance granted widow pending administration of estate under authority of Tit. 58 O. S. 1941 § 314 is not to be paid from community interests of testator and widow, but is properly charged against the assets of the estate.

(Syllabus.) 1. WITNESSES — <italic>Conviction of violation of city</italic> <italic>ordinance may not be shown to impeach witness, or his</italic> <italic>credibility.</italic> The conviction of a witness in police court for the violation of a city ordinance, which violation does not constitute an offense against the state law, may not be put in evidence in a civil action to discredit the testimony of the witness, or to affect his credibility. 2. STREET RAILROADS — TRIAL — <italic>Injuries to</italic> <italic>driver in collision at intersection — Giving of</italic> <italic>instruction that "failure to look and listen" was</italic> <italic>contributory negligence constituted reversible error.</italic> Where plaintiff sued defendant for damages sustained by him as the result of a collision in a street intersection, between plaintiff's automobile and a streetcar belonging to defendant, and defendant pleaded contributory negligence, the giving of an instruction by which the jury was told that it was the duty of plaintiff, when going upon or across a streetcar track at a public crossing, to look in each direction and listen to ascertain whether a streetcar was approaching, and that his failure to do so would be a want of ordinary care, to which instruction plaintiff objected and excepted, constitutes reversible error.<page_number>Page 363</page_number>

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Conclusiveness of</italic> <italic>finding that no disability resulted from accidental</italic> <italic>injury.</italic> The order of the State Industrial Commission in a cause properly before it, based on its finding that there was no disability arising from an accidental injury, will be sustained when there is any competent evidence to support such finding.<page_number>Page 371</page_number> 2. SAME — <italic>Sufficiency of evidence to support finding</italic> <italic>of Industrial Commission.</italic> Record examined, and sufficient competent evidence found to support the finding of the State Industrial Commission.

(Syllabus.) APPEAL AND ERROR — <italic>Reversal on failure of defendant</italic> <italic>in error to file brief.</italic> Where plaintiffs in error have served and filed brief, but the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause, with directions.

(Syllabus.) 1. NUISANCE — <italic>Extent of injunction prohibiting</italic> <italic>operation of mule barn in city, causing injury to comfort,</italic> <italic>health, or property.</italic> Where the facts show that a lawful business is being conducted in such a manner as to constitute a private and public nuisance, causing substantial injury to comfort, health, or property, a court is authorized to enjoin and abate such nuisance. The injunction ordinarily should be limited, not to the business itself, but to the usage that creates the nuisance, leaving the right to carry on the business in a proper and lawful manner; but where it clearly appears that such business cannot be conducted in any manner at the place where situated without constituting a substantial injury to adjoining property owners, the injunction should absolutely prohibit the operation of such business. 2. SAME — <italic>Sufficiency of evidence to sustain finding</italic> <italic>mule barn constituted public and private nuisance.</italic> Under the evidence in the record, held that the finding of the trial court that defendant's business constitutes a public and<page_number>Page 383</page_number> private nuisance is not clearly against the weight of the evidence, and that it was not error for said court to perpetually enjoin the operation of said business.

(Syllabus.) 1. PLEADING — <italic>Motion for judgment on'pleadings</italic> <italic>properly sustained, in action on promissory note, where</italic> <italic>only defense pleaded is an unverified general denial.</italic> In an action upon a promissory note and to foreclose a real estate mortgage given to secure the same where the only defense pleaded is an unverified general denial, a motion by plaintiff for judgment on the pleadings is properly sustained. 2. MORTGAGES — <italic>Interpleader — Filing of</italic> <italic>petition in intervention ineffective as such.</italic> In such an action where a petition in intervention is filed setting up claims to the same property as that covered by the mortgage based upon a judgment of the district court of another county, which judgment was appealed to and reversed by this court, forms no basis for the petition in intervention, as such.

(Syllabus.) 1. MORTGAGES — <italic>Necessary allegations of facts upon</italic> <italic>which plaintiff seeks to have mortgage decreed a lien on</italic> <italic>apparent paramount title.</italic> In an action to foreclose a real estate mortgage, if plaintiff desires to bring within the jurisdiction of the court and litigate an outstanding title or interest which on the face of the record is a valid paramount title, the plaintiff should allege the facts upon which he seeks to have his mortgage decreed to be a lien on such apparent paramount title. 2. SAME — <italic>Petition construed as against petitioner</italic> <italic>as attacking only interests or claims derived from</italic> <italic>mortgagor since execution of mortgage.</italic> In an action to foreclose real estate mortgage, a petition which alleges that certain defendants, other than the mortgagor, are claiming some interests in the real estate, the exact nature of which to the plaintiff is unknown, but that such interests were junior and inferior to the right, title and lien of the plaintiff, without demanding a disclosure of such interests or stating any other ground for including such defendants in the action, should be construed, as against the petitioner, as only attacking interests or claims derived from the mortgagor since the execution of the mortgage. 3. SAME — <italic>Judgment as to paramount interest without</italic> <italic>the issues, and court may correct injustice so long as</italic> <italic>entire matter may be adjusted between parties without</italic> <italic>affecting intervening interest of third person.</italic> Where R., the owner of real estate, conveyed to N. and S. certain mineral interests which conveyance is duly recorded, and thereafter R. executed a real estate mortgage on the premises and thereafter in an action to foreclose such mortgage the mortgagee plaintiff names as defendants the mortgagor and various persons having acquired rights and interests from the mortgagor since execution and recording of the mortgage, and plaintiff also names as defendants N. and S. owners of paramount interests, only upon general allegations as stated in the preceding paragraph of this syllabus, without stating any attack whatever against the paramount title of N. and S., or making any specific claim that such paramount interests are subject to the debt or lien of the mortgage, and default judgment is rendered against all defendants, the paramount interest of N. and S. should not be foreclosed, and if such foreclosure of such interests results from including the names of N. and S. in the petition and journal entry of judgment, the court in its equitable power may correct such injustice as between plaintiff and the two defendants N. and S. on a subsequent motion to vacate the judgment as to said defendants,<page_number>Page 401</page_number> at least since the entire matter may be adjusted between plaintiff and said defendants without affecting any interest, claim or equity of a third person, when no laches or applicable statute of limitation is shown or relied upon. 4. JUDGMENT — <italic>Court may properly vacate judgment as</italic> <italic>to defendants owning paramount title; held, order vacating</italic> <italic>such judgment not error.</italic> When a judgment in foreclosure of real estate mortgage, whether by inadvertence or otherwise, purports to foreclose a title or interest prior and paramount of record to the mortgage, without any reason therefor being alleged or shown, the court on subsequent motion may properly vacate such judgment as to the defendants owning such paramount title, and in this appeal, under the circumstances shown, it is held that the order vacating judgment as to the named defendants was not error.

(Syllabus.) 1. WILLS — <italic>Prima facie case of due execution of will</italic> <italic>created where attestation clause recites due execution of</italic> <italic>instrument.</italic> Where the attestation clause recites due execution of a will, it creates a prima facie case of due execution of the instrument, which can be overcome only by clear and convincing evidence. 2. SAME — <italic>In execution of will, substantial</italic> <italic>compliance with statutory provisions sufficient.</italic> Strict compliance with the provisions of 84 O.S. 1941 § 55[<cross_reference>84-55</cross_reference>] need not be shown to establish proper execution of a will. Substantial compliance, if established by a preponderance of the evidence, is sufficient.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Subsequent injury to</italic> <italic>"physically impaired person" — Liability of employer for</italic> <italic>full compensation for disability sustained as result of</italic> <italic>combined injuries where employer failed to secure payment</italic> <italic>of compensation benefits as required by law.</italic> Where an employee, who is a physically impaired person, receives a subsequent accidental injury compensable under the Workmen's Compensation Law (while 85 O. S. Supp. 1943 § 172 is still in force), which results in additional permanent disability so that the degree of disability caused by the combination of both disabilities is materially<page_number>Page 416</page_number> greater than that which would have resulted from the last injury alone, the employee is entitled to receive compensation on the basis of such combined disabilities. The employer is liable only for that percentum and degree of disability which resulted from the last injury alone and Special Indemnity Fund is liable for the balance. If, however, the employer has failed to secure the payment of compensation benefits as required by law, no portion of such compensation may be recovered against the Special Indemnity Fund, but the employee is entitled to recover from his employer full compensation to which he is entitled for disability sustained as the result of his combined injuries. 2. SAME — <italic>Evidence found insufficient to sustain</italic> <italic>finding and award of Industrial Commission.</italic> Record examined, held evidence insufficient to sustain the finding and award of the State Industrial Commission.

(Syllabus.) STATUTES — INITIATIVE AND REFERENDUM — <italic>Proceeding to review order made upon sufficiency of petition</italic> <italic>— Time for filing.</italic> In a proceeding to review the order made upon the sufficiency of an initiative petition under the provisions of 34 O. S. 1941 § 8, it is essential that there be filed in the office of the Clerk of the Supreme Court a proceeding to commence such review within ten days from the date of the order entered by the Secretary of State.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Strained back sustained</italic> <italic>by employee, while prying loose boards and seats in</italic> <italic>gymnasium building, held accidental injury within meaning</italic> <italic>of Workmen's Compensation Law.</italic> An injury sustained by an employee consisting of a strain to his back while engaged in prying loose boards and seats in a gymnasium building, under the evidence and circumstances of this case, constituted an accidental injury within the meaning of the Workmen's Compensation Act, 85 O. S. 1941 § 3, subd. 7. 2. SAME — <italic>Sufficiency of evidence to sustain finding</italic> <italic>and award.</italic> Record examined. Held, evidence sufficient to sustain the finding and award.<page_number>Page 425</page_number>

(Syllabus.) 1. PLEADING — <italic>Judgment on pleadings not proper where</italic> <italic>issues of fact to be determined.</italic> A motion for judgment on the pleadings cannot be sustained where there are issues of fact to be determined. 2. SAME — <italic>Motion for judgment on pleadings sustained</italic> <italic>only where no cause of action or defense is stated by</italic> <italic>opposing party.</italic> A motion for judgment on the pleadings is not favored by the courts, and in passing upon such a motion, the allegations contained in the pleadings of the movant, which have been denied by the opposing party, will be considered as withdrawn or untrue, and such a motion will be sustained only where no cause of action or defense is stated by the opposite party.

(Syllabus.) 1. OIL AND GAS — <italic>Preference right lessee of Land</italic> <italic>Office entitled to exclusive possession of surface of land,</italic> <italic>subject only to reservations made in lease or by operation</italic> <italic>of law.</italic> A preference right lessee of the Land Office is entitled to exclusive possession and control of the surface of the land owned by the Commissioners of said office and leased to him for the term of the lease subject only to such reservations as are made in the lease or by operation of law. 2. SAME — <italic>Equity will protect lessee in enjoyment of</italic> <italic>said right as against unlawful invasion thereof.</italic> Equity will protect such lessee in the enjoyment of said right as against an oil and gas lessee's unlawful invasion thereof.

(Syllabus.) 1. INJUNCTION — APPEAL AND ERROR — <italic>In indirect</italic> <italic>contempt case, evidence found to reasonably support verdict</italic> <italic>finding defendant guilty of willful disobedience to court</italic> <italic>injunction.</italic> Where, on appeal, the sole question of sufficiency of the testimony in an indirect contempt case is submitted, a verdict of guilty and the judgment of the court based thereon will not be disturbed if the evidence reasonably supports the verdict of the jury finding the defendant guilty of willful disobedience of a court injunction. 2. SAME — <italic>Sufficiency of evidence to support verdict</italic> <italic>and judgment.</italic> Record examined and held, that the evidence is sufficient to support the verdict and judgment.

(Syllabus.) 1. REFORMATION OF INSTRUMENTS — <italic>Evidence of mistake</italic> <italic>in written contract must be clear, unequivocal, and</italic> <italic>decisive.</italic> In order to justify the reformation of a written contract which fails to conform to the alleged agreement of the parties because of mutual mistake, the proof should be clear, unequivocal, and decisive. 2. OIL AND GAS — <italic>Deed held to reserve to grantors</italic> <italic>one-sixteenth interest in oil and gas deposits that may be</italic> <italic>developed on said land.</italic> Where, in a deed, the grantor excepts or reserves from the conveyance "a one-sixteenth (1/16) interest in the oil and gas deposits that may be developed on said land, and also an undivided one-half (1/2) interest in the bonus or rental of oil and gas lease now existing against said land . . .," the grantor retains a one-sixteenth (1/16) interest in the oil and gas.

(Syllabus.) 1. ELECTION OF REMEDIES — FRAUD — <italic>Action to</italic> <italic>recover option money upon ground of deceit and fraud</italic> <italic>— Relief sought held not inconsistent, and election not</italic> <italic>required.</italic> Where plaintiff brought an action based upon fraud and deceit for money had and received by defendants under an option agreement of plaintiff to purchase, performance of which was made impossible by reason of defendants' conduct, and for damages arising therefrom, and the evidence established that defendants performed no part of their agreement and actively prevented plaintiff from exercising his option, plaintiff's causes of action upon which he sought relief were not inconsistent and he was not required to elect. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to</italic> <italic>sustain verdict of properly instructed jury.</italic> The verdict of a properly instructed jury, supported by competent evidence, will not be disturbed on appeal.

(Syllabus.) TAXATION — <italic>Sufficiency of evidence to sustain</italic> <italic>judgment.</italic> Whether the intangible tax has been paid is a question for the court and where the court's judgment is sustained by the evidence the same will not be reversed on appeal.

(Syllabus.) 1. APPEAL AND ERROR. — <italic>Right to new trial where case</italic> <italic>simply "reversed" without directions.</italic> Where a case on appeal is simply "reversed" without directions, or without specific indication of finality in the reversing opinion, it is not error for the trial court to grant a new trial. 2. SAME — TRIAL — <italic>Conclusiveness of findings</italic> <italic>by court in jury-waived case.</italic> Where a jury is waived, the findings of the court are entitled to the same weight and consideration that would be given to a verdict by a jury, and, if there is any evidence, including reasonable inferences, tending to support the findings, this court will not reverse for insufficient evidence. 3. USURY — INTEREST — <italic>Evidence sustained</italic> <italic>judgment of trial court — Amount of interest allowed and</italic> <italic>attorney fees not shown to be erroneous.</italic> Record examined, and held, that the judgment of the trial court is sustained by the evidence. Held, further, that the amount of interest allowed and attorney fees fixed by the trial court are not shown to be erroneous.

(Syllabus.) 1. TRUSTS — <italic>One occupying a confidential and</italic> <italic>fiduciary relationship with another may be declared a</italic> <italic>constructive trustee.</italic> One who, while occupying a confidential and fiduciary relationship with another, takes title to real estate in his own name in violation of his agreement, express or implied, not to do so, may be declared a constructive trustee of the realty so acquired and required to account for all rents and profits therefrom of every character. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> In a case of purely equitable cognizance the findings and judgment of the trial court will not be disturbed by this court unless clearly against the weight of evidence.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Definition of</italic> <italic>"physically impaired" person under statute.</italic> A "physically impaired" person under the Special Indemnity Fund Act, O.S. 1943, Supp. Title 85, sections 171-176, is one who as a result of any cause has suffered the loss of the sight of one eye, the loss by amputation of the whole or a part of some member of his body classified and scheduled in 85 O.S. 1941 § 22[<cross_reference>85-22</cross_reference>], subd. 3 (the arms, legs, feet, hands, fingers and toes), or the loss of the use, or partial loss of the use, of such specific and classified members which is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession, or any disability which previously has been adjudged and determined by the State Industrial Commission. Special Indemnity Fund v. Wade, <cross_reference>199 Okla. 547</cross_reference>, <cross_reference>189 P.2d 609</cross_reference>. 2. SAME — <italic>Ear not classified as "member" —</italic> <italic>Injured employee not rendered a physically impaired person</italic> <italic>because of loss of hearing in one ear caused by accident</italic> <italic>sustained in early childhood.</italic> The word "member" as used in Special Indemnity Fund Act, 85 O.S. 1943 Supp. § 171, does not include or embrace the ear, therefore, an employee who had sustained an accidental personal injury arising out of and in the course of his employment which resulted in loss of hearing in his left ear and who prior thereto, as a result of an accident which he sustained in early childhood, had suffered the loss of hearing in his right ear, was not a physically impaired person as that term is defined by said Act.

(Syllabus.) 1. TRIAL — <italic>Refusal of instruction based upon</italic> <italic>assumption machine was in defective condition.</italic> It is not error to refuse an instruction based upon the assumption that a machine<page_number>Page 468</page_number> is in defective condition unless the evidence discloses that there is a defect in the machine due to faulty construction which would result in danger to the operator of the machine. 2. NEGLIGENCE — <italic>When manufacturer of mechanical</italic> <italic>device is liable to third party.</italic> The manufacturer of a mechanical device is liable to a third party only where due to the construction of such device its operation is inherently dangerous to the operator or where there is a faulty or defective construction of the mechanical device. 3. TRIAL — <italic>Refusal of requested instructions not</italic> <italic>error where instructions given reasonably submit issues to</italic> <italic>jury.</italic> Where the instructions given by the trial court reasonably submit the issues involved to the jury, it is not error to refuse requested instructions. 4. APPEAL AND ERROR — <italic>Harmless error in admission of</italic> <italic>evidence, where such error has not caused failure of</italic> <italic>substantial justice.</italic> Although the admission of evidence may constitute error, where it appears from an examination of the record that such error has not caused a failure of substantial justice, this court may decline to vacate the judgment for such error.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — TAXATION — <italic>Act</italic> <italic>authorizing transfer of surplus funds to general fund for</italic> <italic>general use does not violate constitutional requirements as</italic> <italic>to levy and use of taxes for purposes specified.</italic> Tit. 62 O.S.Supp. 1943 § 445[<cross_reference>62-445</cross_reference>], which, among other things, authorizes cities to transfer, with the approval of the excise board of the county, unused, unneeded and surplus funds in its sinking fund to the general fund for general use, is not unconstitutional. It does not violate section 19, of art. 10 of the State Constitution. 2. SAME — <italic>Transfcr of surplus in sinking fund to</italic> <italic>general fund for current expenses authorized.</italic> The balance in the sinking fund of a city over and above all possible needs of that fund, may, with the approval of the excise board of the county, be transferred by the city to its general fund and used for current expenses of the city.

(Syllabus.) 1. AUTOMOBILES — <italic>Requirement by Corporation</italic> <italic>Commission that motor carrier file liability insurance</italic> <italic>policy or bond in sum fixed by proper order.</italic> Under the law (47 O.S. § 169[<cross_reference>47-169</cross_reference>]) the Corporation Commission must require that a motor carrier file a liability insurance policy or bond in such sum and amount as fixed by a proper order of the Commission. 2. SAME — <italic>Rules and regulations of Corporation</italic> <italic>Commission could not exclude motor carrier's employees from</italic> <italic>liability insurance coverage required by statute.</italic> By virtue of 47 O.S. 1941 § 169[<cross_reference>47-169</cross_reference>] the liability insurance coverage, required to be filed by the motor carrier thereunder, must include compensation for death of the carrier's employees resulting from the operation of the carrier for which such carrier is legally liable and the Corporation Commission is without power to exclude the carrier's employees from such coverage by rules and regulations adopted by it under 47 O.S. 1941 § 162[<cross_reference>47-162</cross_reference>]. 3. SAME — INSURANCE — <italic>Commission has provided</italic> <italic>liability on policy shall be not less than $5,000, with</italic> <italic>permission for larger coverage upon election of motor</italic> <italic>carrier and his insurer.</italic> There is no showing that the Corporation Commission by any proper order has fixed the sum of $5,000 as the limit of liability on such a policy for injury to or death of one person. On the contrary, it appears the Commission has provided that such liability shall not be less than $5,000, with<page_number>Page 481</page_number> permission for larger coverage upon election of the motor carrier and his insurer. 4. SAME — <italic>Effect of endorsement on limit of</italic> <italic>liability — Lack of proper order of Corporation Commission</italic> <italic>fixing $5,000 as limit.</italic> Where such a motor carrier and his insurer, acting pursuant to the statute, and appropriate order of the Corporation Commission, file an insurance policy providing in the body of the policy for liability up to $10,000 for injury to or death of one person, such liability of the insurer may extend up to said sum as so fixed by the insurer and the motor carrier, and that limit of liability is unaffected by an endorsement attached to said policy stating in effect that the limit of liability as to any one person is not more than $5,000 by reason of the fixing of such limit of liability by the Corporation Commission, when it does not appear that said Commission, by any proper order, has fixed said sum of $5,000 as the limit of liability on such a policy.

(Syllabus.) JURY — <italic>Right to jury trial for recovery of specific</italic> <italic>real property and to quiet title not affected by equitable</italic> <italic>issues injected by pleadings.</italic> In an action in the nature of ejectment for the recovery of specific real property and to quiet title, it is error to deny the plaintiff a jury trial on the ground that equitable issues are injected by pleadings of the defendant (Title 12, sec. 556, O. S. 1941).

(Syllabus.) TAXATION — <italic>Separate portion of business may be</italic> <italic>transferred to employing unit owned and controlled by same</italic> <italic>interests — Successor unit entitled to benefit of experience</italic> <italic>of predecessor, and not required to pay greater contribution</italic> <italic>rate.</italic> Under the first paragraph of 40 O.S. 1941 § 217[40-217](c)(9), a separable portion of a business conducted by an employer may be transferred to an employing unit owned and controlled by the same interests owning and controlling the employer, although by such transfer the entire business of such employer is not transferred, but a portion thereof is retained by it. Where such transfer of the portion of the business is made to such an employing unit, and the business transferred is conducted solely by the successor employing unit, the predecessor and successor employing units may be treated as a single unit, if to so treat them does not tend to defeat or obstruct the purpose of the Unemployment Compensation Act, and the successor unit is entitled to the benefit experience of the predecessor, and may not be required to pay a greater contribution rate than its predecessor.

(Syllabus.) 1. APPEAL AND ERROR — TRIAL — <italic>Review —</italic> <italic>Insufficiency of evidence — Waiver of demurrer to evidence</italic> <italic>and failure to ask directed verdict.</italic> If defendants after demurrer to plaintiffs' evidence has been overruled, do not stand upon the demurrer but put on evidence this waives the demurrer, and if they do not move for a directed verdict after the parties have finally rested, they cannot urge against an adverse verdict that the evidence was insufficient to establish a cause of action in favor of plaintiffs. 2. TRIAL — <italic>Instructions to be considered as a</italic> <italic>whole.</italic> Instructions given by the trial court are to be considered as a whole, and if the instructions given fairly and reasonably present the issues raised and the law applicable thereto, same are sufficient.

(Syllabus.) 1. EMINENT DOMAIN — <italic>Estate which oil pipe line</italic> <italic>company may acquire in condemnation limited to that which</italic> <italic>is "necessary for the transaction and operation of its</italic> <italic>business."</italic> The estate which an oil pipe line company may acquire by condemnation under the provisions of 52 O. S. 1941 § 60, the procedure therefor being prescribed by 66 O.S. 1941 §§ 53[<cross_reference>66-53</cross_reference>] to 56, inclusive, is limited and restricted by the third, or last, proviso of section 2, art. 22, Const., to that which is "necessary for the transaction and operation of its business," and where an easement fulfills these requirements no greater estate may be thus acquired. 2. DEEDS — <italic>Deed may be deposited with grantee</italic> <italic>without becoming operative as a deed.</italic> A deed may be deposited with the grantee, or handed to him for any purpose, other than as the deed of the grantor, or as an effective instrument between the parties, without becoming operative as a deed. 3. SAME — <italic>Real test of delivery of deed is intention</italic> <italic>of grantor.</italic> Where there is a dispute as to whether there has been an effective delivery of a deed, the real test is the intention of the grantor, which intention may be manifested by acts or words or by both combined.

(Syllabus.) 1. DIVORCE — <italic>Judgment of sister state in divorce</italic> <italic>proceeding, as to custody of minor child, not binding in</italic> <italic>habeas corpus proceeding in this state, under Full Faith</italic> <italic>and Credit Clause of Federal Constitution.</italic> A judgment of a sister state in a divorce proceeding, fixing in both the mother and the father the right to the care and custody of a minor child, is not, under the Full Faith and Credit Clause of the Federal Constitution, binding in a habeas corpus proceeding upon the courts in this state, to which the father has removed and taken up his domicile and has legal custody of the child. 2. SAME — HABEAS CORPUS — <italic>Welfare of child as</italic> <italic>paramount consideration in awarding custody.</italic> The welfare of a minor child is the paramount consideration, and the circumstances pertaining to its custody may always be inquired into by a court of competent jurisdiction, and any order relating thereto may be made whenever the child's best interests so demand. 3. DIVORCE — <italic>Foreign divorce decree is res judicata</italic> <italic>as to custody of child.</italic> As long as the situation of the parties is unchanged, the judgment of a district court of another state in a divorce action is res judicata as to the custody of the minor child of the parties thereto. 4. APPEAL AND ERROR — <italic>Disposition of equity case</italic> <italic>where judgment against clear weight of evidence.</italic> In an equitable action, this court will weigh the evidence, and if the judgment below is clearly against the weight thereof, will render such judgment as the trial court should have rendered.

(Syllabus.) INTEREST — <italic>Particular fund paid into court —</italic> <italic>Rights of various claimants — Fund does not bear interest.</italic> Where a sum of money in the hands of the court is specifically held by court order pending final determination of a claim against the fund for attorney's fee, and the fund earns no interest, the successful claimant is not entitled to interest as against his former client, and his judgment of right to receive or collect said fund, which is stayed by court order pending appeal taken in good faith, does not give rise to a valid claim against the former client for interest, though the claimant prevails in general on the appeal.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Injury from prank of</italic> <italic>stranger held to have "arisen out of" employment.</italic> Where a workman is going about his duties and is injured by the prank of a<page_number>Page 517</page_number> stranger, not a fellow employee, in which prank the workman does not actively participate, the resulting injury arises out of the employment within the meaning of the Workmen's Compensation Act. 2. SAME — <italic>Injury to workman arose out of employment</italic> <italic>where there was causal connection between employment and</italic> <italic>resulting injury.</italic> An injury to a workman may be said to arise out of the employment, within the meaning of the Workmen's Compensation Law, when it is apparent, from a consideration of all of tile circumstances, that a causal connection exists between the condition under which the work is required to be performed and the resulting injury.

(Syllabus.) 1. COURTS — <italic>Power and jurisdiction of courts limited</italic> <italic>to terms of special statute.</italic> When a court, either of limited or general jurisdiction, assumes to act under a special statute which specifically submits the questions to be determined, the power<page_number>Page 520</page_number> and jurisdiction of the court in that proceeding are limited by the terms of the act and any act done or decision rendered outside of and beyond the limits of the jurisdiction so specifically conferred are in excess of jurisdiction and void. 2. CERTIORARI — <italic>Certiorari proper remedy to bring</italic> <italic>record of proceedings to this court, where court, or judge,</italic> <italic>acts outside of jurisdiction.</italic> Where a court, or the judge thereof, acts outside of and beyond the jurisdiction conferred upon him by law and there is no provision in the special act under which he proceeds for correction of this erroneous assumption of jurisdiction by appeal, certiorari is a proper remedy to bring the record of those proceedings to this court for review.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case.</italic> The judgment of the trial court in an action of equitable cognizance will not be disturbed on appeal unless clearly against the weight of the evidence. 2. OIL AND GAS — <italic>Action to enjoin removal of casing</italic> <italic>from gas well — Injunction against lessee not warranted</italic> <italic>because of fact lessor uses gas in his residence from one</italic> <italic>of the wells.</italic> Where production can no longer be obtained in commercial quantities from an oil and gas lease, the fact that the lessor uses in his residence gas from one of the wells will not justify the granting of an injunction<page_number>Page 521</page_number> against the lessee, restraining him from pulling the casing in said well and plugging same, where there is no evidence that such well has ever produced, or could be made to produce, oil or gas in paying quantities.

(Syllabus.) 1. INSURANCE — <italic>Action on group life insurance policy</italic> <italic>— Employer dismissing insured employee and terminating</italic> <italic>policy, held not violating duty to beneficiary — Action</italic> <italic>may not be maintained by beneficiary because of such</italic> <italic>dismissal and termination of policy.</italic> Where an employer secures a life insurance policy for an employee, under a group<page_number>Page 523</page_number> life insurance policy covering the life of its employees, which policy provides that insurance thereunder shall cease immediately upon the termination of employee's employment and the insured employee at the time of his employment and at the time of making his application for insurance enters into a written contract with his employer agreeing that his employment may be terminated at any time, which agreement was in full force and effect at the time the policy was issued, and thereafter the employer enters into another written contract with a labor union of which insured employee is a member, in which the employer agrees that no employee shall be dismissed while absent because of illness, and the employer, contrary to the terms of this agreement, dismisses the employee, terminates the policy and so advises the insurance company, and insured employee thereafter dies; held, the employer in dismissing insured employee and in terminating the policy violated no duty or obligation it owed to the beneficiary of insured, and such beneficiary may not maintain an action against the employer for damages because of such dismissal and termination of the policy. 2. CONTRACTS — <italic>When two or more writings may be</italic> <italic>construed together.</italic> It is only when two or more writings are executed at the same time and between the same parties and concern the same subject-matter, or when the contracts are not executed at the same time, but refer to the same subject-matter, and on their face show that they are each executed as a means of carrying out the intent of the other, that they may be construed together.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Evidence establishes</italic> <italic>claimant as a physically impaired person at time of his</italic> <italic>last injury.</italic> Record examined, and held, that the evidence produced by the claimant before the Industrial Commission sufficiently established that claimant was a physically impaired person at the time he received his last injury. 2. SAME — <italic>Combination of injury to right leg with</italic> <italic>subsequent eye injury fixing liability upon Fund.</italic> Where the right leg of a claimant is one inch shorter than his left leg due to injury, it may be combined with a subsequent eye injury in order to fix liability upon the Special Indemnity Fund. 3. SAME — <italic>Amount of money received from joint</italic> <italic>settlement for injury making claimant a physically impaired</italic> <italic>person to be deducted from award for combined</italic> <italic>disability.</italic> Where a physically impaired person files a claim for an additional injury, the amount of money he received from a joint settlement of the claim for the injury that made him a physically impaired person shall be deducted from the award made for the combined disability.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Sewer improvement</italic> <italic>district held not political corporation or other</italic> <italic>subdivision of state under constitutional limitation on</italic> <italic>indebtedness.</italic> A sewer improvement district organized under the provisions of chapter 19, title 19, S. L. 1947, p. 217, O. S. 1941, Cum. Suppl. 1947, Title 19, chapter 20, is not a political corporation or subdivision of the state as that term is used in article 10, sec. 26 of the Constitution, and the provisions in said section 26 limiting the amount of indebtedness which may be incurred by political corporations or subdivisions of the state do not apply to such sewer improvement district. 2. SAME — <italic>"Special assessments" on property in sewer</italic> <italic>improvement district — Homestead exemption — Provisions</italic> <italic>of act authorizing valuation of lands at full value not</italic> <italic>violative of Constitution and fact that all land is liable</italic> <italic>for assessments until public sewer paid for does not render</italic> <italic>act unconstitutional as violative of Due Process Clause of</italic> <italic>Constitution.</italic> Assessments levied on an ad valorem basis on property in a sewer improvement district organized under the above law are special assessments for benefits that are common and general to the district as a whole, and are not ad valorem taxes. The homestead exemption provided by article 12a, section 1, of the Constitution, does not prohibit the levy of such assessments against homesteads within the sewer improvement district. The provision in the act authorizing the valuation of the lands in the district at their full value is not violative of article 5, sec. 10, of the Constitution, and the fact that the law makes all the land in the district liable for assessments until the public sewer is paid for does not render the act unconstitutional as violative of the Due Process Clause of the Constitution. 3. SAME — STATUTES — <italic>Publication of petition</italic> <italic>prerequisite to valid organization of sewer improvement</italic> <italic>district under law involved.</italic> The requirement of the sewer improvement district act that the petition for the organization of such district be published for at least two weeks in some newspaper printed and published in the county where the petition is presented is mandatory, and compliance with such provision is essential to the formation of a sewer improvement district under such law. 4. SAME — CONSTITUTIONAL LAW — <italic>Manner in which</italic> <italic>sewer improvement bonds shall be paid left to discretion of</italic> <italic>Board of Directors.</italic> The provision in the sewer improvement district act that bonds issued thereunder shall run for a period of from ten to twenty years as determined by the board of directors refers to the maturity date of the entire issue and does not prohibit the retirement of the bonds serially in such amounts as may be determined by the board of directors. Nor is it necessary that bonds issued be submitted for approval to the county attorney and county clerk of the county in which the district lies, or to the<page_number>Page 532</page_number> Attorney General under the provisions of section 29, art. 10 of the Constitution. <center> On Rehearing.</center> 5. CONSTITUTIONAL LAW — STATUTES — <italic>Curative</italic> <italic>acts — Legislative power.</italic> Curative acts may apply to pending proceedings, and, while the Legislature cannot annul or set aside the judgment of a court, it may remove a defect on which the judgment proceeded.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Street improvements not</italic> <italic>"public utilities," to be owned exclusively by city, within</italic> <italic>meaning of term as used in Constitution.</italic> Street improvements do not constitute "public utilities" within the meaning of the term as used in section 27, art. 10 of the Constitution, which provides that: "Any incorporated city or town in this state may, by a majority of the qualified property tax-paying voters of such city or town, voting at an election to be held for that purpose be allowed to become indebted in a larger amount than that specified in section twenty-six, for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by such city." (Coleman v. Frame, <cross_reference>26 Okla. 193</cross_reference>,<cross_reference>109 P. 928</cross_reference>.)

(Syllabus.) INSURANCE — WORKMEN'S COMPENSATION — <italic>"Extraterritorial endorsement" attached to policy valid</italic> <italic>contract indemnifying insured for injury to employees</italic> <italic>employed in State of Kansas.</italic> Where a casualty company issues a standard form policy of workmen's compensation insurance covering insured's operations in Oklahoma, and thereafter, upon insured's application issues an "extraterritorial endorsement" whereby insurer agrees to indemnify the insured for any losses that<page_number>Page 549</page_number> may be occasioned by injury to insured's employees regularly employed in the State of Kansas, such endorsement is a valid contract of indemnity under which the insurer assumes the risk of loss, and insured cannot accept and retain the policy and thereafter sue and recover back the premiums paid upon the basis of such endorsement.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Insufficiency of</italic> <italic>evidence to support finding employee, as result of injury</italic> <italic>to leg, sustained a 40 per cent permanent partial</italic> <italic>disability to the foot.</italic> Where in a hearing before the State Industrial Commission for compensation under the Workmen's Compensation Act, the only evidence offered by the employee as to the extent of disability sustained by him as a result of an injury to his leg below the knee consisted of testimony of one physician who stated that as a result of such injury the employee suffered such pain as to incapacitate him to the extent of 75 to 80 per cent, or practically all of his former occupation, that of "rough neck" for a driller, or any other occupation that would necessitate bending of the body, lifting or climbing; <italic>Held,</italic> evidence insufficient to support the finding of the commission that the employee as a result of such injury sustained a 40 per cent permanent partial disability to the foot. 2. SAME — <italic>Percentage of total disability determined</italic> <italic>with due regard to actual cumulative effect of injuries, in</italic> <italic>case of injury to two specific members.</italic> In case of injury to two specific members, percentage of total disability should be determined with due regard to actual cumulative effect of injuries and not by arbitrary application of mathematical formula.

(Syllabus.) 1. TENANCY IN COMMON — <italic>Possession of real property</italic> <italic>by tenant in common may be shown to have become adverse as</italic> <italic>to other tenants by evidence of acts showing open,</italic> <italic>notorious possession.</italic> The possession of real property by a tenant in common may be shown to have become adverse as to other tenant or tenants in common out of possession by evidence of acts or a series of acts which show the open, notorious, exclusive possession, such as receiving all of the rents, issues and profits, discharging mortgage indebtedness which was against the property at the time title thereto was acquired, conveying, devising, leasing, encumbering and placing valuable and lasting improvements thereon, and paying the taxes and special improvement assessments. 2. APPEAL AND ERROR — <italic>In quiet title action to real</italic> <italic>estate, decree sustaining title by prescription not</italic> <italic>disturbed on appeal unless clearly against evidence.</italic> In an action to quiet title to real property, a decree sustaining title by prescription will not be disturbed on appeal unless it is clearly against the weight of the evidence. 3. LIS PENDENS — <italic>Party seeking to defeat title of</italic> <italic>third party must allege and prove summons was served or</italic> <italic>publication made 60 days after petition filed.</italic> To charge a third party with notice of the pendency of an action involving an interest in real property under 12 O. S. 1941<page_number>Page 556</page_number> § 180, so as to defeat the title of such third party acquired after the filing of the petition, it is incumbent upon the party seeking to defeat such title to allege and prove that summons was served or the first publication was made within sixty days after the petition was filed.

(Syllabus.) CONSTITUTIONAL LAW — <italic>Appeal from ballot title</italic> <italic>prepared by Attorney General to initiated measure — Policy</italic> <italic>of court to accept title so prepared if same fairly states</italic> <italic>gist of measure without comment for or against the measure.</italic> This court, on appeal from a ballot title prepared and submitted by the Attorney General, as required by law, to an initiated measure amending the Constitution, will accept the title prepared and filed it same fairly states the gist or substance of the measure without comment for or against the same in compliance with 34 O.S. 1941 § 9[<cross_reference>34-9</cross_reference>].

(Syllabus.) 1. WITNESSES — <italic>Attorney may not testify concerning</italic> <italic>communications made to him by client, but rule does not</italic> <italic>apply to communications made in presence of third</italic> <italic>persons.</italic> Tit. 12 O.S. 1941 § 385[<cross_reference>12-385</cross_reference>] provides that an attorney shall be incompetent to testify concerning any communications made to him by a client in that relation. The rule, however, does not apply to communications openly made in the presence of third persons. To enjoy the protection of the statute they must have been made in confidence of the relation and under such circumstances as to imply that they should ever remain secret. 2. SAME — <italic>Statutes excluding persons from testifying</italic> <italic>strictly construed in favor of witness.</italic> Statutes which exclude persons from testifying will be strictly construed in favor of the witness. Classes of persons not named in the statute will not be excluded by implication even though the reason therefor may seem as strong as those which apply to the persons expressly designated. 3. SAME — <italic>Competency of one employed as attorney for</italic> <italic>party litigant, whose fee is dependent upon success of</italic> <italic>litigation.</italic> One employed and acting as attorney for a party litigant and whose fee is dependent upon the success of the litigation, is not disqualified to testify upon the issue involved by reason of the provisions of Tit. 12 O.S. 1941 § 384[<cross_reference>12-384</cross_reference>].

(Syllabus.) 1. HOMESTEAD — <italic>Homestead character attached to land</italic> <italic>continues until owner voluntarily changes its character by</italic> <italic>abandonment.</italic> When homestead character once attaches to land, it continues to be the homestead until the owner voluntarily changes its character, by disposing of the property or by leaving with the intention, or forming such intention after leaving, of not returning and occupying it as a homestead. 2. BANKRUPTCY — <italic>Judgment based on claim arising from</italic> <italic>fraud constitutes debt not dischargeable in</italic> <italic>bankruptcy.</italic> A judgment based on a claim arising out of fraud, misappropriation or defalcation of a bankrupt, while acting in a fiduciary capacity, constitutes a debt or claim not dischargeable in bankruptcy. Title 11, U.S.C.A. § 35. 3. APPEAL AND ERROR — <italic>Review — Sufficiency of</italic> <italic>evidence in equity case.</italic> In a case of purely equitable cognizance this court on appeal will review and weigh the evidence, but will not reverse the judgment unless it can be said that it is clearly against the weight thereof.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Employee not permitted to</italic> <italic>refuse operation for operative hernia and claim compensation</italic> <italic>for permanent disability.</italic> Under the Workmen's Compensation Law of this state, an injured employee disabled as the result of an operative hernia may not refuse an operation to correct such hernia and claim compensation for a permanent disability.

1. CONSTITUTIONAL LAW — TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION — <italic>Unconstitutionality of act preventing</italic> <italic>retail or wholesale merchants from advertising products for</italic> <italic>sale at a loss in order to attract business.</italic> An act of the Legislature which makes it a crime, or declares it to be contrary to public policy so as to call for injunctive relief for a retail or wholesale merchant to advertise, offer to sell or sell any item of merchandise at less than cost thereof to the seller, with intent or effect of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor or otherwise injuring a competitor, impair and prevent fair competition or injure public welfare, is unconstitutional and void as violative of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States and violative of the due process clause, section 7, article II, of the Constitution of the State of Oklahoma. 2. STATUTES — <italic>Entire Act not necessarily invalidated</italic> <italic>by unconstitutionality of part.</italic> The unconstitutionality of a portion of an Act of the Legislature does not defeat or affect the validity of the remaining provisions unless it is evident that the Legislature would not have enacted the valid provisions with the invalid provisions removed, if with the invalid provisions removed the rest of the Act is plain and fully operative as law. 2. SAME — <italic>Effect of provision in Act that invalidity</italic> <italic>of part of Act shall not affect remainder.</italic> The effect of a provision in an Act of the Legislature that the invalidity of any sentence, clause or provision in the Act shall not affect the remaining portions, is to create a presumption that, omitting the unconstitutional portions, the remaining portions would have been enacted by the Legislature. 4. SAME — <italic>Striking out of material part of section</italic> <italic>of Act, working change of public policy.</italic> Where an Act in contravention of public policy of the State as declared by one section of an Act is made a crime by another section of the same Act, the striking out of any material part of the section which declares the public policy, works a change of that policy so as to defeat the basis for declaring the Act a crime and renders the Act unconstitutional. 5. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION — <italic>Part of Unfair Sales Act held invalid and unconstitutional</italic> <italic>as too indefinite to establish rule of conduct.</italic> That part of subdivision (e), 15 O. S. 1941 § 592, which reads: ". . . and purchases made by retailers and wholesalers at prices which cannot be justified by prevailing market conditions within this State shall not be used in determining the cost to the retailer and cost to the wholesaler" is invalid and unconstitutional as too indefinite and uncertain to establish or prescribe a rule of conduct.

(Syllabus.) PLEADING — TRIAL — <italic>Rule as to when petition</italic> <italic>deemed good as against defendant's motion for judgment on</italic> <italic>opening statement of counsel.</italic> After the pleadings are made up and issues joined, if the petition is good against a demurrer, it is good against a motion for judgment in favor of defendant upon opening statement of counsel, unless it appears that such statement contravenes the material allegations of the petition, whether by conceding errors in the petition or failure of the proof to sustain the petition.

(Syllabus.) 1. JUDGMENT — <italic>Defendants may open up and defend</italic> <italic>judgment against them on service by publication within</italic> <italic>three years.</italic> Under the provisions of 12 O.S.A. § 176, the defendants against whom a judgment is rendered without service other than by publication in a newspaper may at any time within three years have said judgment reopened and be let in to defend upon complying with the terms of said section, that is, filing a full answer, giving the plaintiff notice of the application, offering to pay the costs if the court requires, and make it appear to the court that they had no actual knowledge of the pendency of the suit in time to have made their defense. Where such defendants bring themselves within the provisions of said section, the trial court has no alternative but to sustain the application and let the defendants in to defend. 2. SAME — <italic>Judgment of trial court found not clearly</italic> <italic>against weight of evidence.</italic> Record examined, and held, that the judgment of the trial court is not clearly against the weight of the evidence.

(Syllabus.) 1. FRAUDS, STATUTE OF — DEEDS — <italic>Action to</italic> <italic>cancel deed and quiet title not barred by statute where</italic> <italic>evidence shows no meeting of minds on consideration.</italic> Grantor in a deed is not barred from an action to cancel deed and quiet title by par. 3, sec. 136, Title 15, O.S. 1941, where evidence shows there was no meeting of the minds on consideration for conveyance. Under such facts the above statute is not applicable. 2. CONTRACTS — <italic>Meeting of minds on all material</italic> <italic>parts of agreement essential.</italic> To constitute a valid contract there must be a meeting of the minds of the parties on all material parts of the agreement. 3. SAME — <italic>Equity may rescind, where due to mutual</italic> <italic>mistake, minds failed to meet.</italic> Where due to a mutual mistake of fact the minds of the contracting parties failed to meet, equity may rescind the apparent contract. 4. APPEAL AND ERROR — <italic>Sufficiency of evidence in</italic> <italic>equity case to sustain judgment.</italic> In an action of equitable cognizance, the judgment of the trial court will not be disturbed on appeal where not shown to be against the clear weight of the evidence.

(Syllabus.) TELEGRAPHS AND TELEPHONES — <italic>Corporation Commission</italic> <italic>without authority to declare area occupied and served by</italic> <italic>telephone company open territory.</italic> The Corporation Commission is without authority to declare an area, occupied and served by a telephone company, open territory on the applications and petitions of persons residing in the area, on the ground of inadequacy of service, where the undisputed evidence shows that such telephone company had constructed and maintained in the area lines, equipment and facilities sufficient to give complete, efficient and adequate service and was ready and willing to do so prior to the time the petitions requesting such relief were filed.

(Syllabus.) 1. TRIAL — <italic>Demurrer to evidence —</italic> <italic>Determination of whether evidence sufficient to entitle</italic> <italic>plaintiff to relief.</italic> Demurrer to evidence searches pleadings for facts admitted, as well as evidence for facts proved, to determine whether evidence is sufficient to entitle plaintiff to relief asked. 2. SAME — <italic>For purposes of demurrer, evidence treated</italic> <italic>as true.</italic> The court, in reviewing a ruling on a demurrer to the evidence, must treat plaintiffs' evidence as true. 3. SAME — <italic>Demurrer to evidence overruled where</italic> <italic>evidence fairly tends to support cause of action.</italic> Where the evidence fairly tends to support any cause of action, the demurrer thereto should be overruled.

(Syllabus.) 1. MINES AND MINERALS — <italic>Coal mining lease —</italic> <italic>Validity of contract with third party for payment of</italic> <italic>overriding royalty.</italic> Lessor in coal mining lease providing for payment of definite royalty per ton of coal produced cannot complain if lessee enters into contract with third party for payment of overriding, or additional, royalty, to be paid by lessee. 2. SAME — <italic>Right of lessee to execute overriding</italic> <italic>royalty contract to apply to future leases to said</italic> <italic>lessee.</italic> Where lessors have exclusive right to execute future coal mining leases and receive all bonuses or delay rentals, lessee may execute an overriding royalty contract to apply to future leases to said lessee. 3. SAME — <italic>Right to own and receive overriding</italic> <italic>royalty under mining lease, and at same time receive</italic> <italic>non-participating royalty.</italic> One may own and receive overriding royalty under a mining lease, and at the same time own and receive "non-participating" royalty under the same mining lease, since non-participating royalty is applicable to proceeds based upon actual production and does not entitle the owner thereof to participate in bonuses, delay rentals or other income from lease, except a portion of royalty based entirely upon actual production of minerals.

(Syllabus.) CERTIORARI — <italic>Where order of court clearly within</italic> <italic>limits of jurisdiction conferred by statute, writ of</italic> <italic>certiorari denied.</italic> In a proceeding on petition for certiorari to review the action of the county and district judges in denying an application of petitioner for a permit to sell nonintoxicating beverages under the provisions of 37 O. S. Supp. 1947 § 163.11, the only question for determination is that of jurisdiction, and where the transcript of the proceedings in the lower court attached to the petition discloses that the order of the lower court was clearly within the limits of jurisdiction conferred by said statute, the writ of certiorari will be denied.

(Syllabus.) 1. AUTOMOBILES — NEGLIGENCE — <italic>Use of highway</italic> <italic>by wrecker to extricate stuck or disabled truck not</italic> <italic>forbidden by statute.</italic> Rule 10 of the Road, 69 O.S. 1941 § 583[69-583], subdivision 10, providing that when a motor vehicle is brought to a stop on a hard-surfaced highway, the left side of motor vehicle must be to the right of the center of the highway at least three feet, does not prohibit the temporary blocking of a highway by a service truck, or wrecking truck, in an endeavor to extricate a stalled or disabled truck from a ditch along side the highway. 2. SAME — <italic>Failure to put out warning flags when</italic> <italic>highway temporarily obstructed not actionable negligence</italic> <italic>where plaintiff sufficiently apprised of his danger, and</italic> <italic>was unable to stop because of breaking of axle.</italic> Actionable negligence cannot be based upon a failure to put out warning flags when a highway is temporarily obstructed, as above stated, where, from the evidence, it appears that the agent of plaintiff in charge of his truck clearly perceived that the highway was obstructed in sufficient time to have stopped his truck, and thus have avoided a collision, but was unable to stop because of the breaking of an axle on his truck, which rendered the gears and brakes of the truck useless. 3. SAME — <italic>Statutes defining obstructing of highway</italic> <italic>as a nuisance not applicable to temporary obstruction in an</italic> <italic>effort to extricate stalled or disabled car from</italic> <italic>ditch.</italic> The 3d subdivision of 50 O.S. 1941 § 1[<cross_reference>50-1</cross_reference>], which defines the obstructing of any public street or highway as a nuisance, and the provisions of 69 O.S. 1941 § 4[69-4], providing that the poles, wires, conduits and equipment of public service corporations shall be maintained so as not to endanger the public in the use of the highway, have no application to a temporary obstruction of a highway in an effort to extricate a stalled or disabled vehicle from a ditch along the highway.

(Syllabus.) 1. VENDOR AND PURCHASER — <italic>Vendor's choice of</italic> <italic>remedies upon default of vendee — Vendor may rescind</italic> <italic>contract in toto with usual rights and duties attendant</italic> <italic>upon such act.</italic> The vendor in an executory contract for the sale of real property, upon default by the vendee, may elect one of several remedies. One of the remedies is that the vendor may rescind the contract in toto with the usual rights and duties attendant upon such act. 2. SAME — <italic>If vendor desires to rescind or forfeit</italic> <italic>contract of sale, notice of such intention must be</italic> <italic>given.</italic> Ordinarily, if a vendor desires to rescind or forfeit a contract of sale, and payments thereunder, for default in performance, notice of such intention to rescind must be given. Such notice is necessary when by the terms of the contract the vendor is given the option to rescind or forfeit the contract on default of purchaser in performance. Such notice should be served upon the purchaser or his successor or successors in interest. 3. JUSTICES OF THE PEACE — <italic>Justice of peace without</italic> <italic>jurisdiction in action of forcible entry and detainer.</italic> A justice of the peace has no jurisdiction in an action of forcible entry and detainer in which the vendor of real estate brings an action to recover the possession of premises against a purchaser to whom he has made a contract for the sale of the land, and whom he has put in possession thereof, and who had made default in the payment of the purchase price; the remedy is by an action in the district court to rescind the contract, or to foreclose the equitable interest of the purchaser. 4. VENDOR AND PURCHASER — <italic>When vendor treated the</italic> <italic>contract as subsisting, he thereby waived or lost the right</italic> <italic>to forfeit or rescind the contract.</italic> Where, subsequent to the time when grounds arise for forfeiture or rescission, under the contract for the sale of real property, the vendor undertakes to rescind or forfeit the contract, and, subsequently, acquiesces therein and treats the contract as still in existence by applying for and obtaining homestead exemption on behalf of the widow and children of the purchaser who are in possession, the vendor waives or loses the right to forfeit or rescind the contract. 5. SPECIFIC PERFORMANCE — <italic>Action for specific</italic> <italic>performance of contract for sale of real estate — Finding</italic> <italic>and conclusion that</italic><page_number>Page 620</page_number> <italic>money advanced by vendor was a loan, and not intended as</italic> <italic>consideration for absolute conveyance.</italic> Where, in an action for specific performance of a contract for the sale of real property, there is an issue of whether a payment of certain money by the vendor to the widow of the purchaser was a loan secured by quitclaim deed intended as a mortgage, or was the consideration for an absolute conveyance of her interest, the fact that the vendor for six years after the transaction seeks and obtains homestead exemption for and on behalf of the widow and children of the purchaser as to the land involved, is sufficient to uphold a finding and conclusion that the money so advanced was a loan and was not intended as consideration for an absolute conveyance.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Collection of garbage,</italic> <italic>trash and rubbish a governmental function.</italic> A city in collecting and disposing of garbage, trash and rubbish, for which a fee is charged its citizens, is performing a governmental function. 2. SAME — <italic>Collection of garbage, trash and rubbish</italic> <italic>not one of employments designated as hazardous.</italic> The collection and disposal of garbage, trash and rubbish is not one of the employments denominated as hazardous by 85 O.S. 1941 § 2[<cross_reference>85-2</cross_reference>]. 3. SAME — <italic>City employee injured while collecting</italic> <italic>garbage not within terms of Compensation Law.</italic> An employee, who is engaged in such employment for the city or municipality, is not within the terms of the Workmen's Compensation Law, and an order of the State Industrial Commission denying him an award for an injury while engaged in such employment will be sustained.

(Syllabus.) TAXATION — <italic>Burden on taxpayer to prove taxes imposed</italic> <italic>by statute on freight cars greater than general ad valorem</italic> <italic>tax for all purposes would be on such cars.</italic> In a proceeding on a claim for a reduction of an assessment of freight car tax made in accord with the provisions of 68 O.S. 1941 § 805a[68-805a], the taxpayer assumes the burden of proving that the taxes imposed are greater than the general ad valorem tax for all purposes would be on such freight cars, if taxed on an ad valorem basis, measured by the average ad valorem tax rate applied to property throughout the state for the fiscal year.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Claim barred where not filed</italic> <italic>within one year after injury and employer has done nothing to</italic> <italic>toll or waive statute.</italic> Under 85 O.S. 1941 § 43[<cross_reference>85-43</cross_reference>], where an employer has neither paid compensation nor wages in lieu of compensation, nor furnished medical care or attention for an alleged injury within one year next preceding the filing of a claim therefor, any claim thereafter filed with the Industrial Commission is barred where the employer or some one in his behalf has done nothing to toll or waive the statute.

(Syllabus.) 1. WILLS — <italic>Will devising property to wife for life</italic> <italic>with remainder over to adult daughters, held to give wife</italic> <italic>power to convey fee-simple title to real estate.</italic> Under Tit. 60 O.S. 1941 § 266[<cross_reference>60-266</cross_reference>], a devise of real property by a testator to his wife for life with remainder over to adult daughters with a further provision that the wife should have the power to sell the real estate and use the proceeds "as long as she lives and at her death what is left shall be equally divided among the above named heirs" (daughters), gives to the wife the power to sell the real estate and convey a fee-simple title thereto. 2. CONTRACTS — FRAUDS, STATUTES OF — <italic>Transfer</italic> <italic>of equitable interest by patrol.</italic> An equitable interest in real estate may be transferred by parol under the same conditions and subject to same limitation as to the statute of frauds as apply to the transfer of a fee title.

(Syllabus.) COUNTIES — <italic>Defendant not rendered ineligible to</italic> <italic>office of county commissioner by reason of pleas of guilt of</italic> <italic>offenses charged against him under laws of U.S. in federal</italic> <italic>court.</italic> Defendant's pleas of guilt in a federal court for possession of a still and distilling apparatus and for possession of spirituous liquor upon which tax had not been paid, constituting offenses under the laws of the United States, which may be punished by imprisonment for a term exceeding one year, neither of which constitutes a felony under the laws of the State of Oklahoma, did not render him ineligible to the office of county commissioner under the prohibition contained in Title 19, O.S.A. § 132.

(Syllabus.) 1. COUNTIES — <italic>Mandatory duty of Board of County</italic> <italic>Commissioners and County Excise Board to allow and provide</italic> <italic>supplemental appropriations to enable county assessor to</italic> <italic>carry out his mandatory duties in the property revaluation</italic> <italic>program.</italic> Where at the beginning of any fiscal year the county excise board of any county provides appropriations for the county assessor's office for supplies, deputy hire and traveling expenses, deemed adequate at that time to enable the county assessor to perform the duties imposed upon him by 68 O.S.A. 1947 Supp. § 15.17, and during the fiscal year said appropriations are exhausted, either by reason of inadequacy of the original appropriation or by reason of unforeseen conditions, and it is made to appear that there are ample unencumbered surplus funds on hand out of which supplemental appropriations may be properly made for the balance of such fiscal year, exclusive of all other requests for appropriations therefrom for the performance of other mandatory duties, and the county assessor makes due and timely request in writing for such supplemental appropriations, it is the plain mandatory<page_number>Page 653</page_number> duty of the board of county commissioners and the county excise board to allow and provide such supplemental appropriations. Under such facts said boards have no discretion in the matter. 2. MANDAMUS — <italic>County assessor may, by original</italic> <italic>action in Supreme Court, obtain writ sought upon proper</italic> <italic>showing.</italic> Where a county assessor institutes an action in the district court for mandamus to secure a supplemental appropriation to finance the needs of his office, and the judgment is there rendered against such county assessor, and there is not ample time to perfect an appeal to the Supreme Court in order to obtain a ruling thereon before the end of the fiscal year, the county assessor may, by original action in this court, obtain the writ sought upon a proper showing. 3. MANDAMUS — <italic>In proper case, writ not denied, where</italic> <italic>decision on appeal or error would come too late for</italic> <italic>relief.</italic> If a proper case for mandamus is made out, the writ will not be denied because of a remedy by appeal or error when the decision thereof would come too late to grant any relief. 4. SAME — <italic>Duties of county assessor — Statutes</italic> <italic>not conflicting with any constitutional provision.</italic> Sections 15.17 and 15.19, 68 O.S.A. 1947 Supp. are not in conflict with any provision of the State Constitution.

(Syllabus.) 1. DEEDS — <italic>Relationship of parent and child not,</italic> <italic>within itself, sufficient to raise presumption of fraud and</italic> <italic>undue influence.</italic> While the relation of a parent and child exists between the parties, this, within itself, is not sufficient to raise a presumption of fraud and undue influence, but, when a fiduciary or confidential relation exists between a parent and child, in addition to the family relation, under such circumstances, the burden of proving that the transaction was a fair one is upon the donee. 2. SAME — <italic>Insufficiency of evidence to establish or</italic> <italic>raise presumption of fraud and undue influence in obtaining</italic> <italic>deed.</italic> Record examined. Held, evidence offered by plaintiff insufficient either to establish or raise the presumption that defendant obtained his deed to the property in controversy by fraud and undue influence and defendant was not required to affirmatively prove the transaction to be free from such cloud. 3. SAME — <italic>Undue influence not inferred from mere</italic> <italic>power and opportunity.</italic> Power and opportunity to exert undue influence will not alone raise the presumption that such influence was in fact exerted. 4. SAME — <italic>Recording of deed by grantor as delivery</italic> <italic>of deed — Question of intention one of fact.</italic> The recording of a deed by the grantor with the intention that it be effective as a conveyance may constitute a delivery. The question of intention in such case is one of fact to be determined from the evidence and circumstances peculiar to each case. 5. SAME — <italic>Test of capacity to make a deed or</italic> <italic>conveyance.</italic> The test of capacity to make a deed or conveyance is that the grantor shall have the ability to understand the nature and effect of the act at the time the conveyance is made.

(Syllabus.) 1. NEGLIGENCE — <italic>Assumption of risk by one entering</italic> <italic>private property and going upon dirt loading machine</italic> <italic>without invitation, express or implied.</italic> One entering private property and going upon a dirt loading machine thereon without an invitation, express or implied, assumes the risk of such machine falling and injuring him. 2. SAME — ATTRACTIVE NUISANCE — <italic>Rule not</italic> <italic>invoked where minor is over age of</italic> 14 <italic>and presumed prima</italic> <italic>facie to be capable of exercise of judgment and discretion.</italic> In an action for damages founded on the attractive nuisance doctrine, a minor over the age of 14 is prima facie presumed to be capable of the exercise of sufficient judgment and discretion to know and appreciate the danger that attends his ordinary acts and to have legal capacity to assume the risk of such acts.

(Syllabus.) 1. PROCESS — <italic>Motion to quash service properly</italic> <italic>overruled where record demonstrates truth of statements</italic> <italic>made in affidavit to obtain service by publication.</italic> Where a motion to quash service of summons by publication, based upon a verified denial of the affidavit to obtain service, is submitted to the court upon the affidavit, the motion to quash, and a verified response<page_number>Page 668</page_number> thereto showing the efforts of plaintiff to obtain personal service, and the allegations of such response are uncontradicted and the record as a whole clearly demonstrates the truth of the statements made in the affidavit to obtain service by publication, it is not error to overrule the motion to quash the service. 2. ARMY AND NAVY — <italic>Not error to deny application to</italic> <italic>stay action under Soldiers' and Sailors' Civil Relief</italic> <italic>Act,</italic> 1940, <italic>where court finds presence of defendant not</italic> <italic>necessary to adjudication of issues.</italic> Where upon hearing an application to stay an action under 50 U.S.C.A. App. § 521 (Soldiers' and Sailors' Civil Relief Act, 1940), the uncontradicted evidence shows that there are no controverted issues of fact and that only questions of law are involved, and that defendant who is in military service is not a lawyer but is represented by counsel who testified that the defendant, if present, could be of no assistance in presenting the questions of law, and the court finds that the presence of defendant is not necessary for the full adjudication of the issues raised by the pleadings, it is not error to deny the application to stay. 3. TAXATION — <italic>Tax deed effective to pass title to</italic> <italic>land including oil and gas rights where oil and gas rights</italic> <italic>not being produced therefrom.</italic> A valid tax deed conveys to the purchaser the entire interest and estate in the land, including the oil and gas rights therein where oil and gas is not being produced therefrom. 4. CONSTITUTIONAL LAW — TAXATION — <italic>Redemption</italic> <italic>from lien resulting from tax sale before tax deed issued by</italic> <italic>county treasurer — Owner not deprived of property without</italic> <italic>due process of law.</italic> Where a statute authorizes a lien for ad valorem taxes to be foreclosed by advertisement and sale by the county treasurer, the proceedings thereunder relate to the land itself, rather than the owner thereof, and where the statute provides for notice and gives the right to any person owning the land, or any interest therein, to redeem the land from such taxes at any time before a tax deed is issued by the county treasurer, the statute affords due process of law, and the owner of the nonproducing oil, gas, and other mineral rights, whose interest in the land, in the name of the owner of the surface, is assessed, advertised, and sold for delinquent ad valorem taxes, is given equal protection of the law and is not deprived of property without due process of law.

(Syllabus.) OIL AND GAS — <italic>Action to cancel oil and gas mining</italic> <italic>lease — Held, judgment of trial court canceling lease on</italic> <italic>ground lessee failed to comply with requirements of former</italic> <italic>judgment clearly against weight of evidence.</italic> Record, examined, and held, that defendant, lessee in an oil and gas mining lease extended by a previous judgment, which required him to commence actual drilling of a well for oil and gas within the extension period, and to prosecute the drilling thereof with due diligence, sufficiently complied with the requirements of said former judgment, and that the judgment of the trial court canceling the lease on the ground that he failed to do so is clearly against the weight of the evidence.

(Syllabus.) 1. EVIDENCE — <italic>Admissibility of all facts and</italic> <italic>circumstances relevant to issues made by pleadings in a</italic> <italic>suit.</italic> All facts and circumstances which are relevant to the issues made by the pleadings in a suit are admissible in evidence, unless the exclusion of any such fact or circumstance is required by some established principle of evidence; a fact or circumstance is relevant if it legally tends to prove some matter in issue or to make a proposition in issue more or less probable. 2. WITNESSES — <italic>Suit upon oral contract —</italic> <italic>Cross-examination of plaintiff as to inconsistent action or</italic> <italic>transactions with third party, etc.</italic> In a suit upon oral contract, the terms of which are set out in the petition and testified to by plaintiff, it is not error to permit cross-examination of plaintiff as to inconsistent action or transactions with a third party or contradictory statements theretofore made. Pleadings signed, sworn to and filed by plaintiff in such a suit containing statements inconsistent with or otherwise impeaching of the testimony of plaintiff on a material issue may be identified and received in evidence on cross-examination. 3. APPEAL AND ERROR — <italic>Harmless error in giving</italic> <italic>additional instructions to jury, where not prejudicial to</italic> <italic>rights of complaining party.</italic> The provisions of 12 O. S. 1941 § 582 are not violated by the giving of additional written instructions to a jury after its deliberation has begun if all parties are present although notice was not given to counsel for the complaining party if the instruction given is not prejudicial to the substantial rights of the complaining party. The error, if any, under such circumstances, is harmless.

(Syllabus.) 1. ATTORNEY AND CLIENT — <italic>Charges of professional</italic> <italic>misconduct against an attorney to be proved by clear and</italic> <italic>convincing evidence.</italic> Charges of professional misconduct against an attorney must be proved by clear and convincing evidence. 2. SAME — <italic>Rules of Oklahoma Bar Association as to</italic> <italic>appointment of grievance committees, etc., for the</italic> <italic>investigation of charges of professional misconduct.</italic> The Rules Creating, Controlling and Regulating the Oklahoma Bar Association, reported February 22, 1947, in Oklahoma Bar Journal, vol. 18, No. 8, providing for the appointment of grievance committees for the investigation of charges of professional misconduct, provide no term for the personnel of such committees, and the members of such committees hold at the pleasure of the appointing authority, which has full power to appoint new personnel on any grievance committee and to request further investigation of the same charges referred to the committee composed of the original personnel, which made no report or recommendation. 3. SAME — <italic>Evidence in support of general charges</italic> <italic>covering acts similar to specific charges based upon</italic> <italic>affidavits, where motive and intent are material.</italic> While the Rules of the Oklahoma Bar Association require that charges of professional misconduct be based upon affidavit, it is sufficient if part of the charges are based upon affidavit, and the rules do not require that such affidavits be furnished the attorney charged prior to investigation by a grievance committee and hearing before the referee. It is not required that general charges be based upon affidavit where evidence in support of such general charges covers acts similar to the specific charges based upon affidavit, where motive and intent are material. 4. SAME — <italic>Technical legal rules should not control</italic> <italic>in disciplinary proceedings involving professional</italic> <italic>misconduct.</italic> In disciplinary proceedings involving professional misconduct, technical legal rules should not control, where the attorneys charged are given a full and fair opportunity to be heard and to refute and explain the charges. 5. SAME — <italic>Review of entire record by Supreme Court</italic> <italic>on request of attorneys involved.</italic> This court will review the entire record in disciplinary proceedings where requested to do so by the attorneys involved, and will approve, disapprove, or modify the findings and recommendations of the Executive Council or Central Committee as seems proper. 6. SAME — <italic>Solicitation of legal business as ground</italic> <italic>for suspension from the practice of law.</italic> The solicitation of legal business, personally and through paid agents, by an attorney at law, is ground for suspension from the practice of law.

(Syllabus.) 1. JUDGMENT — <italic>Proper parties defendant in quiet</italic> <italic>title action.</italic> Where an action to quiet title to real property is brought against the record owner who is dead, and his unknown heirs, executors, administrators, devisees, trustees and assigns, immediate and remote, as defendants, they have such interest as will entitle them to participate in a trial involving the subject matter in controversy and are defendants under the provisions of 12 O.S.A. § 176. 2. SAME — <italic>Defendants may open up and defend judgment</italic> <italic>against them on service by publication within three</italic> <italic>years.</italic> Under the provisions of 12 O.S.A. § 176, the defendants against whom a judgment is rendered without service other than by publication in a newspaper may at any time within three years have said judgment reopened and be let in to defend upon complying with the terms of said section, that is, filing a full answer, giving the plaintiff notice of the application, offering to pay the costs if the court requires, and make it appear to the court that they had no actual knowledge of the pendency of the suit in time to have made their defense. Where such defendants bring themselves within the provisions of said section, the trial court has no alternative but to sustain the application and let the defendants in to defend. 3. SAME — <italic>Judgment of trial court found not clearly</italic> <italic>against weight of evidence.</italic> Record examined, and held, that the judgment of the trial court is not clearly against the weight of the evidence.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Evidence sufficient to</italic> <italic>sustain finding claimant had change of condition warranting</italic> <italic>further award.</italic> Under the provisions of 85 O. S. 1941 § 28, the State Industrial Commission is authorized to review a former award and grant claimant a further award on a change in physical condition, and where there is competent evidence to sustain the finding of the State Industrial Commission that there has been a change of condition for the worse from and after the date of the prior award, this court will not disturb the finding of the Commission.

(Syllabus.) DIVORCE — <italic>Alimony pendente lite separate and distinct</italic> <italic>from an award for permanent alimony.</italic> Alimony pendente lite is separate and distinct from an award for permanent alimony which may be awarded under proper circumstances. A husband who has been required to pay alimony pendente lite cannot recover the amount paid, nor have the same set off against any claim of the wife, nor have such amounts credited on a judgment for permanent alimony.