Volume 60 — Oklahoma Reports

Error from District Court. Dewey County; T. P. Clay, Judge. In the matter of the survey of .section 30. township 19. range 20. in Dewey county by J. E. Fail-child, as county surveyor. From a judgment of the district court dismissing an appeal by Alex Crow from the report of survey, Crow brings error.

<p>Error from County Court, Ellis County; A. E. Squire, Judge.</p> <p>Action by the State against K. A. Mietcalf and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Trial — Taking Case from Jury — Demurrer — Peremptory Instructions.</p> <p>When any competent evidence has been presented for the consideration of the jury reasonably tending to prove the issues, it is proper to overrule a demurrer to the evidence or deny a motion for peremptory instruction; for in such a condition, under proper instructions from the court, the cause should be submitted to the jury for their determination.</p> <p>2. Appeal and Error — Review—Questions of Fact.</p> <p>Where the evidence in a case leaves it doubtful whether the particular carrier who is sued for a loss of goods, or another from whom that carrier received the goods, is liable, the Supreme Court will not disturb the findings in the court below.</p> <p>3. Commerce — Carriage of Goods — Connecting Carrier — Statutory Provisions.</p> <p>The act to regulate commerce provides: “That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from.the liability hereby imposed.” Carmack Amendment to Hepburn Act (Act June 29, 1906, e. 3591, sec. 7, par. 11. 34 ' 8tat. 595 [TJ. S. Comp. St. 1913. sec. 8592]). The act provides that nothing in the above section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he lias under existing law.</p> <p>4. Carriers — Carriage of Goods — Connecting Carriers — Liabilities.</p> <p>The statute provides: “That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.” Paragraph 12 (section 8592.)</p> <p>5. Same — Limitation of Liability.</p> <p>On February 29, 1908, the Circuit Court of the Western District of Arkansas (Smeltzer v. St. Louis & S. F. R. Co., 15S Fed. 649). held that the provision in the Hepburn Act. commonly called the Carmack Amendment, which makes an initial carrier liable for loss, damage, or injury to through shipments, whether such losses occur on or off the line of the initial carrier, is constitutional, and that a clause in a bill of lading, providing that an initial ca.rrer’s liability on an interstate shipment of goods transported over the lines of several carriers from point of origin to destination shall be limited to losses occurring on its own line, is in conflict with the Carmack Amendment. The court said that Congress in adopting this amendment seems to have recognized the difficulty involved, on (he part of shippers, when goods are" lost, in tracing the goods, fixing the liability, and recovering their loss. It seems to have recognized the additional fact, that the facilities of the initial carrier are much greater than those of the shipper to locate the goods and fix the liability for loss or damage. The court further declared that these provisions rest on substantial grounds of public policy which inspired this remedial legislation for the regulation of the immense volume of interstate commerce.</p> <p>6. Same.</p> <p>Under the common law, independently of statute, whore a common carrier receives property for carriage beyond its own line, issuing a through bill of lading therefor, specifying the freight for through carriage, it makes the connecting carriers its agents, and is responsible to the shipper for any loss or damage to such property, either on its own or the connecting lines, which liability it cannot limit by contract.</p> <p>7. Commerce — Carriage of Goods — Connecting Carriers — Statutory Provision.</p> <p>The Carmack Amendment to the Hepburn Act, relating to the liability of common carriers of property in interstate commerce for loss or damage to such property, but which contains the proviso “that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law,” leaves n shipper free to resort to the laws of a state applicable to his contract.</p> <p>8. Trial — Carriers — Action for Loss of Goods — Requisite Instructions.</p> <p>Although requested instructions may correctly state tlie law, yet, if tlie law applicable to the issues involved in tbe ease is fairly and substantially given by the court in its charge, a judgment will not be reversed because of refusal to give such requested instructions. It is not required that the entire law of the case shall be stated in a single instruction, and it is therefore not improper to state the law, as applicable to particular questions, or particular parts of the case in separate instructions, and if there is no conflict in the law as stated in different instructions, and all the instructions considered as a series present the law applicable to the case fully and accurately, it is sufficient.</p> <p>9. Appeal and Error — Review—Questions of Fact — Verdict.</p> <p>Where the jury is properly instructed upon mi issue of fact joined by the pleadings, and Hiere is evidence reasonably tending to support their finding on that issue, their verdict' will not bo disturbed by the Supreme Court.</p> <p>10. Carriers — Carriage of Goods — Connecting Camers — Liability of Delivering Carrier.</p> <p>The evidence in the case shows that these shipments were delivered to the initial carrier under a continuous contract to destination in a condition that was plenty good to ship, and the fact that the initial carrier received them for shipment and did ship them tends to show beyond a doubt that they were in a shipping condition. Under the rule laid down by this court in the case of St. Louis & S. IT. R. Co. v. Jamieson, 20 Okla. 654, 95 Pac. 417, if the carrier finally delivering the goods does not deliver them in the condition in which they were received by its agent, the initial carrier, then it must account for the injury.</p> <p>11. Same — Burden of Proof — Authority of Initial Carrier.</p> <p>The burden rests upon it, the delivering carrier, to show that the injury occurred without its fault or negligence. To the extent of involving it, the delivering carrier, in the liability of a common carrier after the goods shall have come to its custody, the initial or receiving carrier of the goods had such authority. The burden of proof in cases of loss or injury rests upon the carrier to exempt itself from liability, the law imposing the obligation of such duty upon it. The carrier, almost without exception, will be able to show the condition of the property when reaching its custody; the shipper or consignee can rarely, if ever, do so. This is a salutary rule, resulting in justice to the greatest number affected, leaving it also to the party to prove the fact in whose power it expressly lies.</p> <p>12. Anneal and Error — Review—Questions of Fact.</p> <p>Both sides brought forward their proofs before the jury touching these several matters and things, and the jury on the whole case found, by their verdict; that the cattle were injured while in the custody of the defendant, and through its fault or negligence. This court will not disturb the-verdict, and will not, when the evidence in a case leaves it doubtful whether the particular carrier who is sued for a loss or an injury to live stock, or another from whom that carrier received such property, is liable, disturb the findings in the court below.</p> <p>13.Carriers — Carriage of Goods — Limitation of Liability.</p> <p>Again as to interstate shipments, the common-law liability of the carrier for the safe carriage of property may be limited by special contract with the shipper, when such contract, being supported by a consideration, is reasonable and fairly entered into by the shipper, and does not attempt to cover losses caused by the negligence or misconduct of the carrier.</p> <p>(Syllabus by Davis, C.)</p>

Error from District Court, Creek County; Wade S. Stanfield, Judge. Actions by Daisy Scott, by her next friend, against Joe Abraham, and by George Washington Scott, by his next friend, against the same defendant, in ejectment and to cancel certain deeds. Judgment for defendant, and plaintiffs appeal.

<p>j. Frauds, Statute of — Promise to Answer ‘ for Debt of Another — Pleading.</p> <p>Bill of particulars examined, and held to state a cause of action under the second subdivision of the statute of frauds.</p> <p>2. Appeal and Enw — Briefs—Setting Out Instructions.</p> <p>Where, appellant complains of the court’s instructions, but does not set out in his brief the portions thereof complained of, nor point out wherein the defect lies, he fails to comply with rule 25 of this court (38 Okla. x, 137 Pac. xi), and such instructions will not bo considered, but assumed correct.</p> <p>3. Appeal and Error — Review—Questions of Fact.</p> <p>Where there is a conflict in the evidence, and the issues determined by a jury under proper instructions, and approved by the trial court, this court will not disturb the verdict on the weight of the evidence.</p> <p>4. Frauds, Statute of — Promise to Answer for Debt of Another — Original Undertaking-.</p> <p>A transaction in parol, whereby M. requests of N. to extend credit to Q., ami N. refuses, but agrees to extend credit to M., and merchandise is delivered to Q. upon said request and agreement of M., same is an original undertaking as to M. and not within the second subdivision of the statute of frauds (section 941, Rev. Laws 1910).</p> <p>5. Appeal and Error — Briefs—Instructions’ —Evidence.</p> <p>Whore appellant complains. of the admission and rejection of testimony, and of the. refusal of the,' court to give requested instructions, and fails to set out in his brief -the full substance of said testimony, and fails to set out therein in totidem verbis separately-said requested instructions, he fails to comply with rule 25 of this court, and same will not be considered.</p> <p>6. Appeal and Error — Objections in Lower Court — Absence of Witnesses. •</p> <p>Where upon request of defendant he is granted from adjournment time in the afternoon to 9 o’clock the following morning to procure witnesses, and interposes no motion for a continuance or request for further time, but proceeds to trial without further objection, lie has been deprived of no substantial right.</p> <p>(Syllabus by Day, 0.)</p>

<p>Error from County Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by C. J. Wrightsman against E. R. Letcher. Judgment for plaintiff, and defendant brings error.</p>

<p>1.Appeal and Error — Review—Amendment Regarded as Made,</p> <p>By a clerical error, plaintiff's first name was erroneously stated in the bill of particulars. The defendant answered, and the plaintiff replied to such answer, setting up her correct name. On appeal to the district pourt', the court, in his instructions to the jury, stated the correct name of the plaintiff, and the verdict ran in the correct name of plaintiff. Some of the pleadings and motions filed were entitled in the correct name of plaintiff, and others were entitled erroneously as the action was originally commenced. Held, that defendant is not prejudiced by the misnomer, and that the pleadings may be treated, without any formal amendment, as having been amended so as to state the real name of the plaintiff.</p> <p>2. Justices of the Peace — Appeal—Appearance.</p> <p>An appeal from a judgment of the justice of the peace court to the district court, where there is a trial de novo of the case, constitutes a general appearance and waives all objections raised by defendant to the jurisdiction of the court over his person.</p> <p>3. Appeal and Error — Review—Discretion of Trial Court — Continuance.</p> <p>The granting or refusing of a continuance rests within the sound discretion of the trial court, and unless it is made to appear that such discretion has been abused, the refusing of a continuance does not constitute reversible error.</p> <p>4. New Trial — Grounds—Misconduct of Jury — Affidavit of Juror.</p> <p>Upon grounds of public policy, jurors will not be heard, by deposition, affidavit, or other sworn statement, to impeach their verdict, and it is not error for the court to refuse to grant a new trial because of the misconduct of the jury, upon such deposition, affidavit, or other sworn statement of jurors, even though no objection be made to the competency thereof.</p> <p>5. New Trial — Grounds—Newly Discovered Evidence.</p> <p>A new trial will not ordinarily be granted on the ground of newly discovered evidence, where the evidence set up as newly discovered only goes to impeach the evidence of a witness of the opposing party..</p> <p>(Syllabus by Rummons, C.)</p>

<p>Lib°l and Slander — Privilege—Scope of Privilege.</p> <p>P. M. K. was a night watchman of the city of Frederick. C. F. Cline was the mayor of said city, arid J. T. C. was councilman of said1 city. No charges were pending, nor was the official conduct of said P. M. K.-hecng investigated, when J. T. G. spoke of and concerning said P. M. K. that he had caught P. M. K. stealing baled hay and other statements libelous per se. The only defense interposed by the answer was that said words spoken of and concerning said P. M. K. were privileged. Held, that said libelous words, spoken of and concerning said P. M. K., were not a privileged communication, and not a defense to this action, and the court erred in overruling the demurrer to the answer.</p> <p>(Syllabus by Collier, C.)</p>

<p>Master and Servant — Liability to Third Person — Action—Direction of Verdict.</p> <p>In an action for damages for personal injuries, where a railroad company and one of its employees, who was charged with the commission of the acts of negligence which caused the injury, were joined as parties defendant, and where, from the negligence pleaded and the proof made the railway company. if liable at all, is liable upon the principle of respondeat superior, and the court, at the conclusion of me evidence, directs the jury to return a verdict m favor of the employee. it is error for the court to submit to the jury the issue of the negligence of the defendant railroad company.</p> <p>(Syllabus by Rummons, C.)</p>

<p>1. Vendor and Purchaser — Contracts—Construction.</p> <p>The maker of promissory notes evidencing unpaid installments of the purchase price of real estate, executed pursuant to a contract for the sale thereof by the payee to said maker, containing the following provision, “It is further stipulated by and between the parties that time is the essence of this agreement ; and, upon default upon the part of the party of the second part in payment of two or more installments, the said second party shall forfeit to the parties of the first part as liquidated damages any such sum or sums as may have been paid under this agreement and all other rights and interests accruing to said second party thereunder,” cannot by mere failure to pay arbitrarily terminate the contract and escape liability on such notes without the consent of the payee. The right of forfeiture under such provision of the contract, which can only be exercised after default in the payment of such note, is the exclusive privilege of the payee.</p> <p>%. Appeal and Error — Assignment of Errors —Petition in Error.</p> <p>When a defendant in error fails to file a cross-petition hi error, only those questions presented for assignments in the petition in error are properly reviewable by the Supreme Court on appeal.</p> <p>(Syllabus by Bleakmore, C.)</p>

Error from District Court, McIntosh County ; R. W. Higgins, Judge. Action by T. C. Harrill against J. W. Henderson and others. There was judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Oklahoma County ; W. It. Taylor, Judge.</p> <p>Action by Mina Gunness against Lydia N. Stever and others. Judgment for plaintiff for a portion of the amount ‘demanded, and she appeals.</p>

<p>Error from County Court, Ellis County; S. A. Miller, Judge.</p> <p>Action by the Farmers’ Grain & Supply Company against George Isaac, in which the Bank of Gage intervened. Judgment for plaintiff, which was set aside on motion of the intervener and a new trial ordered, and plaintiff brings error.</p>

Error from County Court, Wagoner County ; J. C. Pinson, Judge. Action by A. L. Harris against A. F. Evans, guardian of Bennie Durant, a minor, and Bennie Durant, to recover an attorney’s fee. Judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; IV. R. Taylor, Judge. Action by J. C. Dalrymple and another, as partners under the style and name of J. C. Dalrymple & Co., against the Queen'Insurance Company of America. Prom a judgment for plaintiffs, defendant appeals.

Error from District Court. Texas County: W. C. Crow, Judge. Action by Emil Hall and others against f he Phoenix Insurance Company of Hartford. Conn., to recover on certain insurance policies. There was judgment for the plaintiffs, and defendant appeals.

<p>Error from County Court, Beckham County ; E. n. Gipson. Judge.</p> <p>Action by R. N. Sewall against the Chicago. Rock Island & Pacific Railway Company and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Bailment — Liability of Bailee — Measure of Damages.</p> <p>In an action to recover against a bailee for Lire for loss of household goods where the goods have a market value, the measure of damages for such loss is the cash market value thereof, and where such articles have no market value, the measure of damages is the value of the goods to the owner; not any fanciful value which he might place upon them, but such reasonable value as from the nature and condition of the goods and the purpose to which they were adapted and used, they had to him.</p> <p>2. Principal and Agent — Rights and Liabilities to Third Persons — Undisclosed Principal.</p> <p>Where the husband stores with a bailee for hire a box containing household goods, part of which belong to his wife, for which the bailee executes a receipt to the husband and it is undisclosed to the bailee that any part of the said articles belong to the wife, the husband, being agent of an undisclosed principal, in his own name may recover damages for the loss of the entire contents of the box.</p> <p>(Syllabus by Collier, C.)</p>

<p>1. Estoppel — Equitable • Estoppel — Inconsistent Conduct.</p> <p>C. E. M. and J. C. T. executed a note to T. A. H., which was indorsed to H. It was admitted by H. that J. C. T. only signed the note as surety. The payment of said note was secured by a mortgage upon a mare and her increase. ■ C. E. M. sold the mare and increase at private sale to H., at which sale J. C. T. was present and entered the credit of the price agreed upon for the mare and colt upon the note and did not object to the sale of' said animals at the price agreed upon. Held, that J. C. T., in an action to recover the balance of the note, was estopped from setting up the invalidity of said sale.</p> <p>2. Trial — Demurrer to Evidence. ,</p> <p>Where the court sustains a demurrer to the evidence, the court may properly withdraw the case from the jury and render judgment fór the party demurring as the state of the pleadings or the proof shall demand.</p> <p>(Syllabus by Collier, C.)</p>

<p>1, Trial — Trial by Court — Judgment at Close of Plaintiff’s Case.</p> <p>Where a trial is had to the court without the intervention of a jury, it is not error for the court to weigh the plaintiff’s evidence at the close thereof, and upon the whole evidence to pronounce judgment for the defendant.</p> <p>S. Homestead — Creation—Right of Wife.</p> <p>Where husband and wife are living together, and the homestead status of the land in question has never been established, the wife has no power without the direction or consent of the husband to impress his lands with the homestead character.</p> <p>3. Deeds — Validity—Duress—Evidence.</p> <p>Evidence examined, and held to support the judgment.</p> <p>(Syllabus by Burford, C.)</p>

<p>L Process — Service by Publication — Restraining Order — “Provisional Remedy.”</p> <p>A temporary restraining order, while a provisional remedy, is not such a remedy as contemplated by section 4722; Rev. Laws 1910, allowing service by publication in actions brought against a nonresident of the state having in this state property or debts sought to be taken by any of the provisional remedies, or to be appropriated in any way.</p> <p>2. Courts — Jurisdiction — Nonresident — Defendants — Seizure of Property.</p> <p>In the absence of a seizure of property or debts upon which the judgment of the court is to operate, power to render any judgment is lacking. The mere fact that there is property belonging to the nonresident defendant within the jurisdiction of the court is not sufficient to give the court jurisdiction. The property must be taken by one of the provisional remedies or sought to be appropriated by some process of the court.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>1. Commerce — Power to Regulate — Effect of Federal Law — Telegraph Companies.</p> <p>Act. Cong. June 18, 1910, c. 309, 36 Stat. 539, amending the act to regulate commerce (Act Cong. Eeb. 4, 1887, c. 104, 24 Stat. 379), which placed telegraph companies, with respect to interstate business, in the same class as other common carriers, and made such companies liable under the federal law for any dereliction of duty, supersedes all state laws on the subject.</p> <p>2. Telegraphs and Telephones — Operation— Limitation of Liability.</p> <p>A stipulation, on the back of a regular printed form upon which messages are written. that a telegraph company will not be liable for mistakes. or delays in the transmission or delivery, or the nondelivery of an unrepeated message beyond the amount received for sending the same, is as. applied to' ■interstate messages valid and binding upon the sendee of such ■ message, and is not affected by section 9, art. 23, Const.</p> <p>(Syllabus by Day, C.)</p>

<p>Error from District Court, Kiowa County: Jas. R. Tolbert. Judge.</p> <p>Action by T. A. Boyd against Stella M. Young, executrix. There was judgment for the plaintiff,' and defendant appeals.</p>

Error from District Court, Muskogee County ; R. C. Allen, Judge. Petition by the Blackstone Coal & Mining Company against T. A. Barnett, guardian of Birdie Barnett, a minor, and others, for a vacation of an order of the county court. From a order of the county court denying vacation, petitioner appealed to the district court; and from a judgment there for petitioner, defendants bring error.

<p>Error from District Court, Beaver County ; W. C. Crow, Judge.</p> <p>Action by G. W. Robinson against the Wichita Falls & Northwestern Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by the L. H. Keller Company against Peter McGraw and another. Judgment for defendants, and plaintiff appeals.</p>

Error from District Court, Oklahoma County ; Edward Dewes Oldfield, Judge. Action by H. T. Deupree and another, receivers of the Standard Land & Loan Company, against H. F. Tripp and another. Judgment for plaintiffs, and defendants bring error.

<p>. Error from District Court, Pontotoc County ; Tom D. McKeown, Judge.</p> <p>' Action by J. G. Chapman against David Alberson and others. Judgment for plaintiff, and defendant Lottie Carney brings error.</p>

<p>Error from County Court. Garvin County; W. R. Wallace, Judge.</p> <p>Action by T. J. Dobyns and others against J. E. Bell. Judgment for plaintiffs, and defendant brings error.</p>

Error fro'm'District Court, Carter County; S. H. Russéil','1 Judge. Action by James E. Whitehead against James O. Galloway and others. Judgment for the. defendants, and the plaintiff brings error.

<p>Error from District Court, Sequoyah County ; John H. Pitchford, Judge.</p> <p>Action by Charles Crickett and others against Oliver C. Hardin. There was judgment for defendant, plaintiffs appeal.</p>

<p>1. Divorce — Right of Action — Insane Defendant.</p> <p>Action for divorce or alimony alone, for any of the causes for which divorce may be granted, may be maintained against an insane defendant, represented by guardian, where it appears that the acts constituting the grounds of divorce were committed by such defendant prior to his becoming insane.</p> <p>2. Marriage — Validity — Presumption and Burden of Proof.</p> <p>A second marriage being shown as a fact, a strong presumption is raised in favor of its legality, which is not overcome by mere proof of a prior marriage. The party attacking such second marriage has the burden of proof to show that neither party to the first marriage had obtained a divorce, even though this involved the proving of a negative.</p> <p>(Syllabus by Bleakmore, O.)</p>

<p>1. Banks and Banking — Officers—Lieutenant Governor — Compensation.</p> <p>A public officer is bound to perform -the duties attached to his office for the compensation fixed by law.</p> <p>2. Officers — Compensation of Officers — Recovery of Amounts Paid.</p> <p>Where sums of money have been illegally drawn from the treasury of the state as sal- . ary, to which an officer was not entitled, sucia money may be recovered from such officer in an action brought by the proper authority.</p> <p>(Syllabus by Rummons, C.)</p>

<p>1. Mechanics’ Liens — Actions — Petition — Evidence.</p> <p>In an action to recover for work and material and to foreclose a mechanic’s lien for the amount found due for such work and material, where the petition states a good cause of action for the recovery of the amount claimed to be due for such work and material, objection to the introduction of evidence for the reason that the petition fails to state a cause of action was properly overruled, even though the petition shows upon its face that plaintiff is not entitled to a lien.</p> <p>2. Tenancy in Common — Actions—Contribution for Improvements — Evidence.</p> <p>In an action to recover a pro rata share of expenses in making improvements from a co-tenant. the vouchers and receipts for moneys expended in making such improvements are • competent evidence. ■</p> <p>3. Same — Amount of Recovery — Profits.</p> <p>Where one tenant in common makes im- ' provements upon the common property under • an agreement with his cotenant that such co-tenant will pay its pro 'rata share of the cost of making such improvements, he is only entitled to contribution from such cotenant for the actual cost of making such improvements, and is not entitled -to make a profit thereon,</p> <p>4. Frauds, Statute of — Contracts — Agree* • ments to be Performed Within a Year.</p> <p>A contract between cotenants in an oil and ' gas lease, by the terms of which one cotenant is to drill a well for-oil or gas upon the lease and develop said lease for oil and gas, the other cotenant agreeing to pay its pro rata . share of-the cost of drilling such well and doing such development, does not fall within , the statute of frauds! as being a contract which by its terms is not to be performed within one year, since the contract may be completely performed in less than a year.</p> <p>5. Mines and Minerals — Lien—Person Entitled — Cotenant.</p> <p>A cotenant in an oil and gas lease owning an undivided seven-eighths interest therein, who furnishes labor and material for the drilling of wells and developing the lease for oil and gas under a contract with the other cotenant, owning an undivided one-eighth interest therein, by the terms of which contract the other cotenant is to pay its pro rata share of the cost of drilling such wells and such development work, is not entitled to a lien upon the undivided one-eighth interest of the cotenant for such labor and material under section 3865, Rev. Laws 1910.</p> <p>(Syllabus by Rummons, O.)</p>

<p>Trial — Waiver of Error — Demurrer to Evidence.</p> <p>If, after a demurrer to plaintiffs’ evidence, the defendant proceeds to offer evidence in his -own behalf, including therein evidence on the very point on which he claimed the plaintiffs’ evidence was deficient, and at the close of the trial, without interposing a further demurrer or requesting an instructed verdict, submits his case to the jury, he, by so doing, waives any error the court may have committed by its action in overruling the demurrer to plaintiffs’ evidence at the close of plaintiffs’ case in chief, and the status of the evidence at the close of plaintiffs’ case in chief should not he given further consideration by the trial court, or by this court on appeal, except in connection with all other evidence in the case, to determine whether all the evidence was sufficient to sustain a verdict for the plaintiffs.</p> <p>(Syllabus by Wilson, C.)</p>

Error from District Court, Muskogee County; R. P. de Granffenried, Judge. Action by D. N. Pink and another against the Board of County Commissioners of Muskogee County, Okla., and another. Prom an order oyerruling a demurrer to the petition of plaintiffs, the defendants bring error.

<p>1. Witnesses — Competency — Testimony as to Transactions with Persons Since Deceased</p> <p>Under section 5049, Rev. Laws 1910, a freedman Creek allottee is not competent to prove an alleged conversation with her grantee, then dead, tending to show that her deed, executed upon sufficient consideration, and after she became of age, was given in ratification of former void deeds, taken during her minority.</p> <p>2. Deeds — Indians—Indian Lands — Consideration of Deed — Sufficiency.</p> <p>A Creek freedman citizen who, subsequent to the taking effect of the Act of Congress of May 27, 1908, c. 199-, 35 Stat. 312,, while a minor, by deed void under the provisions of said act, attempted to convey her allotted lands, may, upon arriving at majority, convey said lands to the grantee named in her former void deed. Such later conveyance made when she is an adult, if regularly and voluntarily executed and without fraud or duress, is valid and binding upon her.</p> <p>Generally mere inadequacy of consideration, in the absence of fraud or duress, is not sufficient ground to avoid a deed voluntarily and • regularly executed, following Henley v. Davis, 57 Okla. 45, 156 Pac. 337.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court, Muskogee County ; Farrar L. McCain. Judge. Action by Della Ogden, administratrix of the estate of M. R. Ogden, deceased, against the Midland Valley Railroad Company. Judgment for plaintiff for ,$8,000, and defendant brings erren'.

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by Abram J. Pool and another against C. G. Bly and another. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Creek County; AVade S. Stanfield, Judge. Action by U-Par-har-ha and others against J. Garfield Buell and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Muskogee County ; R. P. de Graff enried, Judge. Action by Emmett Brewer, by his guardian ad litem. George W. Parker, against J. S. Dodson and another. Judgment for defendants, and plaintiff appeals.

<p>1. Appeal and Error — Record—Questions Presented for Review — Entry of Judgment.</p> <p>Where the case-made does not affirmatively ■show that the judgment appealed from has been entered in the journal of the court, this court is without jurisdiction to review the same.</p> <p>2. Appeal and Error — Record—Authentication — Seal.</p> <p>Failure of the clerk to attest the signature of the trial judge to his certificate as to the correctness of the ease-made, with the seal of the court, deprives this court of jurisdiction to consider said case-made.</p> <p>(Syllabus by Rummons, C.)</p>

Error from District Court, Coal County; R. M. Rainey, Judge. Action between J. W. Butts, Jr., and another and the Rothschild Brothers Hat Company. From the judgment, Butts and another bring error. Motion for judgment against sureties on supersedeas bond.

<p>Error from District Court, Tulsa County; L. M. Poe, Judge.</p> <p>Action by C. E. Foley against Samuel C. Davis. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Blaine County; James R. Tolbert, Judge.</p> <p>Action by Mrs. J. C. Dimmitt against C. S. McDowell. Judgment for defendant, and plaintiff appeals.</p>

Error from District Court, Pontotoc County ; Tom D. McKeown, Judge. Action by S. M. Hilligoss, general agent, etc., against James E. Webb and another. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Cotton County; Cham Jones, Judge.</p> <p>Action by Earl B. Spencer against N. I. McLeod and another. Judgment for plaintiff, and defendants bring error.</p>

Eri-or from District Court, Alfalfa County; James B. Cullison, Judge. Action by T. J. Carroll against Henry L. Messner and others, in ejectment, rents.and damages. Trial to the court and judgment for plaintiff, and defendant Messner brings error.

Error from District Court, Jefferson County; Frank M. Bailey, Judge. Action by the Moning Dry Goods Company against E. S. Wiseman and J. L. Jordan. Judgment in favor of plaintiff and against the defendant E. S. Wiseman, and in favor of the defendant J. L. Jordan, and against the plaintiff, and plaintiff brings error.

<p>1. Conversion — Issues and Proof — Evidence Admissible Under Pleading.</p> <p>It is material error to admit, over objection, testimony in support of facts not put in issue by the pleadings.</p> <p>2. Trial — Instructions—Application to Case.</p> <p>An instruction upon a material issue, not raised by the pleadings, when excepted to is prejudicial error.</p> <p>3. Judgment — Pleading as Defense — Admissibility of Evidence.</p> <p>The rejection of material testimony offered in support of a material issue raised by the pleadings when excepted to is prejudicial error.</p> <p>(Syllabus by Day. C.)</p>

Error from District Court, Texas County; W. O. Crow, Judge. Action by Edna B. Sneed against the Pitts-burg Mortgage Investment Company and another. Judgment for plaintiff, and defendants bring error.

<p>Error from Superior Court, Tulsa County ; M. A. Breckenridge, Judge.</p> <p>Action by Kate Baldridge against the Sand Springs Railway Company, a corporation. Prom a judgment -for plaintiff, defendant brings error.</p>

Error from District Court. Oklahoma County ; W. R. Taylor, Judge. Action, by the Pacific Coast Pipe Company, a corporation, against N. 'S. Sherman, doing business as the N. S. Sherman Machine & Iron Works. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Tulsa County; L. M. Poo, Judge.</p> <p>Action by George Tiger against Harlan Read and others. Judgment for defendants, and plaintiff brings error</p>

<p>1. Judgment — Vacating—Grounds.</p> <p>It is not a sufficient ground upon which to vacate a judgment, that neither defendant nor his attorney of record was notified of the time that the case was set for trial.</p> <p>2. Same — Pleading—Conclusion of Law.</p> <p>It is a condition precedent to entitle one to have the judgment vacated that the party applying therefor must, if the defendant, set up in such motion or petition a valid defense against the judgment rendered, and in a motion or petition which seeks to vacate a judgment an averment that the defendant has a good defense as shown by his answer on file in the cause without making such answer a part of the motion or petition, being a mere conclusion of the pleader, is not sufficient.</p> <p>3. Appeal and Error — Presentation of Objections.</p> <p>Whore an exception is not taken to the action of a court in refusing to quash service of summons, this court will not review such action of the court.</p> <p>4. Appearance — Filing Answer.</p> <p>Where a motion to quash the service of a summons is overruled and not excepted to, and afterwards the movant applies for leave to, and files an answer in the cause, the service of summons is waived, and the movant is properly in court.</p> <p>(Syllabus by Collier, C.)</p>

<p>Error from Coúnty Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by M. A. Harrison against H. B. Talley. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Marshall County ; Jesse M. Hatchett, Judge.</p> <p>Action by Bob Jones against George W. Wood and wife. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from Superior Court, Muskogee County ; H. C. Thurman, Judge.</p> <p>Action by the Western Silo Company, a corporation, against J. E. Kelley. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Insurance — Pleading—Estoppel.</p> <p>An estoppel or waiver of the conditions in a benefit certificate, in order to be available to the beneficiary in an action thereon, must be specifically and distinctly pleaded, and, if not so pleaded, evidence of such estoppel or waiver is not admissible at the trial.</p> <p>2. Insurance — Action—Evidence of Waiver.</p> <p>Where the by-laws of a mutual farmers’ fire insurance company, made a part -of the contract of insurance by the terms of the policy, provide, “In case of damage by fire or lightning a member is not entitled to compensation if he has not paid dues within 30 days after notification,” and notice of dues on account of an assessment was given the member August 4,1913, and the fire occurred November 24, 1913, and the dues were not paid until after the fire, and were paid into the bank, the company’s depository, without notice of the fire, and the officers of the company, when notified of the payment, refused to accept the dues for the reason that a loss had occurred while the member was in default, and notified the member that the company would not accept the payment, and did not accept it, held, (a) That evidence of a waiver of this condition in the contract was incompetent because a waiver had not been pleaded; and (b) the evidence set out in the record, if competent, was insufficient to show a waiver of this condition; and (e) the order of the trial court sustaining a demurrer to the evidence was not error.</p> <p>(Syllabus by Galbraith, O.)</p>

<p>1. Damages — Fires — Evidence — Value of Trees.</p> <p>In an action against a railway company to recover damages for permitting fire to escape from a railway locomotive, resulting in the destruction and injury of growing fruit trees upon the land of plaintiff, evidence as to the value of the trees while growing on the land is competent for the purpose of showing the amount of plaintiff’s damage.</p> <p>2. Appeal and Error — Grounds of Review— Sufficiency of Evidence.</p> <p>In the absence of a demurrer to the evidence or a motion for a directed verdict, the sufficiency of the evidence to sustain the verdict of the jury is not presented to this court on appeal, except as to excessive damages appearing to have been given under the influence of passion and prejudice.</p> <p>(Syllabus by Rummons, C.)</p>

Error from County Court, Wagoner County ; Fred P, Branson, Judge. Action between Sallie Chissoe Childers and others and Jacob Fulsom and others. From the judgment, Childers and others appeal.

<p>Error from District Court, Rogers County; T. L. Brown, Judge.</p> <p>Action between Oee Denbo and others and' Mrs. Sue Adams. Judgment for Mrs. Adams.. and Oce Denbo and others bring error.</p>

<p>1. Abatement and Revival — Death of Party —Survival of Cause of Action.</p> <p>This suit was for the recovery of money on an appeal bond, and the cause of action, under the statutes, survived and passed to the personal representatives of the deceased plaintiff.</p> <p>2. Same — Proceedings for Revival — Order— Consent and Notice.</p> <p>A careful examination of sections 5288, 5293,' 5294, Rev. Laws 1910, noticing the phraseology and punctuation, clearly shows that no consent is necessary if the order to revive the action is made before the expiration of one year from the time the order might have been first made. If made with consent either before or after the expiration of one year from the time the order might have been first made, no notice, as required in section 5288, supra, is necessary. If made before the expiration of one year without consent, then the notice and service thereof required by section 5288, supra, become jurisdictional and mandatory. It cannot be made at all after the expiration of one year without consent.</p> <p>3. Same — Appeal and Error — Order of Re-vivor — Authority of Appellate Court.</p> <p>The order of revivor in this cause, made by the trial court on September 7, 1915, within the year, but without consent, and without notice, is utterly null and absolutely void and the court below acted entirely without jurisdiction : and, there being no legal and proper revivor in the court below, where such revivor would of necessity have to be made for the reason that this acton was pending in such court at the time of his death, no plaintiff in error is legally brought before this court in the proceedings in error, and more than six months, the time fixed by law in which to commence proceedings in error in this court, having elapsed, there is no judgment of the court below, and no revived cause of action brought up for this court to hear, consider, and determine. This action cannot be revived here, for the obvious reason that the plaintiff in error, plaintiff below, did not die while the action was pending in this court on appeal.</p> <p>4. Appeal and Error — Presenting Questions in Trial Court — Necessity—Jurisdiction.</p> <p>Under section 4742, Rev. Laws 1910, objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action, is never waived. The want of jurisdiction in the trial court may be raised for the first time in the appellate court.</p> <p>5. Same.</p> <p>A motion to dismiss proceedings in error, which raises a jurisdictional question, will be considered and determined, when the case is reached for final disposition, although the notice thereof required by rule 16 of the court has never been given. And jurisdictional questions, both as to the trial court and the appellate court, will be raised by the ap pellate court on its own initiative, or sua sponte.</p> <p>6. Appeal and Error — Jurisdiction—Consfnt of Parties.</p> <p>Parties.cannot confer jurisdiction upon any court by agreement, and certainly can neither confer jurisdiction upon the Supreme Court by agreement nor by voluntarily coming into the case as an original action in the Supreme Court.</p> <p>7. Abatement and Revival — Proceedings for Revival — Parties.</p> <p>Aside from a failure to give notice, the attempted revivor is void. The subject-matter of the action is personal property, and passes to the representatives of the deceased and not to his heirs. Section 5290, Rev. Laws 1910, provides: “Upon the death of the plaintiff in an action, it may be revived in the name of his representatives, to whom his right has passed. Where his right has passed to his personal representatives, the revivor shall be in their names; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names.” In this case, upon the death of the plaintiff, the right of action passed, not to his heirs’, but to the administrator of his estate. The subject-matter of the action was a part of the personal estate, and subject to the payment of the debts of the deceased, if judgment be secured and satisfied. The attempted revival in the names of the heirs was therefore a nullity, and is of no consequence in the determination of the question in this case.</p> <p>8. Parties — Amendment — Statutory Provisions.</p> <p>Section 4768, Rev. Laws 1910, which provides that the title of a cause shall not be changed at any of its stages, means the title or caption of the answer or demurrer, or other paper filed in the cause after the petition, shall be like that of the petition, naming plaintiff first; whereas, before the Code, it was usual to name the party putting in the pleading first. This section does not conflict with section 4790, Rev. Laws 1910, which authorizes the court, in furtherance of justice, to amend any pleading, etc., by adding to or striking out the name of any party, etc.</p> <p>(Syllabus by Davis, O.)</p>

Error from Superior Court Oklahoma County; Edward Dewes Oldfield, Judge. Action by the First State Bank against the Pioneer Construction Company and another. Judgment for plaintiff, and defendants bring error.

Error from Superior Court, Muskogee County; Parrar L. McCain, Judge. Action by Joseph A. Peel and others against G. M. Swanson and others. Judgment for plaintiffs, and defendant named and another bring error.

<p>Error from County Court, Kay County; Claude Duval, Judge.</p> <p>Replevin by S. J. Carpenter against Paul M. Mead. Judgment for defendant on appeal. From a judgment rendered in the county court, plaintiff brings error.</p>

<p>1. Electricity — Care Required — Sagging Wires.</p> <p>Where the wires of a telephone company are so constructed and maintained that they are apt to sag and come in contact with the 'wires of a traction company, charged with a high current of electricity, whereby the same may be transmitted to its line, the telephone company owes to its subscribers the highest degree of care to prevent injury to the property or the life of its subscribers, and if it fails so to do and injury results proximately therefrom, the company is liable.</p> <p>2. Electricity — Injuries—Presumptions—Res Ipsa Loquitur.</p> <p>The record in this case examined, and it is held that the doctrine of res ipsa loquitur does not apply.</p> <p>3.Appeal and Error — Presentation of Objections — Instructions.</p> <p>Errors in the giving of instructions are waived unless saved in manner and form provided by statute, and if an exception be not saved to an instruction in the court below, no error can be assigned in this court by reason of thes same having been given.</p> <p>(Syllabus by Hooker, 0.)</p>

<p>Error from District Court, Kiowa County; James R. Tolbert, Judge.</p> <p>Action by the Ely-Walker Dry Goods Company against H. B. Lockett. Judgment for plaintiff, and defendant ¡brings error.</p>

Error from District Court, Adair County; John H. Pitchford, Judge. Action by W. P. Fay, as next friend and guardian of Ella Morris, a minor, against E. L. Morris and others. Judgment for plaintiff, and defendant ■ First State Bank of Vinita, Oída., and another bring error.

Error from County Court, Kay County; Joshua L. Roberson, Judge. Action by O. J. Neal against G. C. Ledger-wood for commission on sale of reaL estate. Judgment for plaintiff and defendant appeals.

Error from County Court, Carter County; Thomas W. Champion, Judge. Action by S. P. Eddington against James W.- Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants bring error.

Error from County Court, Bryan County; J. L. Rappolee, Judge- Action by H. W. Spaulding, E. E. Spauld-ing, and E. H. Spaulding, partners doing business under the firm name and style of Spauld-ing Manufacturing Company, against Green Thompson, administrator of the estate of Arthur F. Eastwood, deceased. Judgment for defendant, and plaintiffs appeal.

<p>Error from District Court, Osage County: R. H. Hudson, Judge.</p> <p>Action by the American National Bank against W. H. Aaron and another on a promissory note. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Kingfisher County; James B. Cullison, Judge.</p> <p>Action by M. Radamaker against John F. Kremke and another. Judgment for plaintiff, and defendant Kremke brings error.</p>

<p>Evidence — X-Ray Plates — Identification.</p> <p>Before X-ray plates are admissible in evidence, they must be identified and their accuracy established.</p> <p>(Syllabus by'Rittenhouse, C.)</p>

<p>Error from Superior Court, Muskogee County; H. C. Thurman, Judge.</p> <p>Action by the Board of County Commissioners of Muskogee County against the First State Bank of Wainwright and others. Judgment for plaintiff, and defendant Western Casualty & Guaranty Insurance Company orings error.</p>

<p>1. Replevin — Action—Issues and Proof.</p> <p>Under a general denial in a replevin action, the defendant may make any defense which will defeat the plaintiff’s claim of right to possession as against the defendant,</p> <p>2. Pleading — Judgment on Pleadings — Answer.</p> <p>In an action in replevin, the defendant answered by general denial and in addition pleaded affirmative defenses. In the latter he admitted the execution and delivery of the note and mortgage, default in payment of which is made the basis of plaintiff’s claim to right of possession. Held, that such answer raises a question of fact, and a judgment rendered upon the pleadings is improper.</p> <p>(Syllabus by Edwards, O.)</p>

<p>1. Brokers — Right to Compensation — Performance of Contract.</p> <p>A contract, whereby O. and wife appoint D. as their agent to procure a loan of money uncoupled with an interest, may be revoked by the principal at will without liability for damages, but where, according to its terms, it is contemplated that the agent shall expend time and money to carry it out,' and the agent accepts said contract and does expend time and money in pursuance of the object of the agency, and does procure a party who is willing to loan the money for the time and according to the terms of the contract, the principal cannot revoke the same except upon the burden of responding to the agent for such damages as he may suffer by reason thereof. Such contract in that state of case is not void for want of mutuality, but the same is an enforceable, valid, and binding contract.</p> <p>2. Same — Liens.</p> <p>The contract in this case examined, and held to be valid, supported by a sufficient consideration, but -that D. is entitled to recover only $350 thereunder, provided no fraud was practiced upon O. and wife in the execution of said contract, and provided, further, that C. and wife were not justified in refusing to _ comply with said contract, on account of the mortgage presented to them to sign, containing impositions in its terms not contemplated by the contract between the parties, and to secure the payment thereof is entitled to a lien on the real estate named in the contract not released by D.</p> <p>(Syllabus by I-Iooker, O.)</p>

<p>Error from District Court, Nowata County; T. L. Brown, Judge.</p> <p>Action by C. C. Harmon against Lula M. Heffner and another. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Sequoyah County; John H. Pitchford, Judge. Action by tbe Merchants’ National Bank of Sallisaw against G. F. Frazier and W. E. McConnell and others intervene. From an adverse judgment, the plaintiff brings error.

<p>1. Pleading — Reply—Right to File.</p> <p>On the day of the trial the court, over the objection and exception of the defendant, permitted the plaintiff to file a reply to the answer of defendant. In the light of section 6005, Rev. Laws of Oklahoma 1910, this action complained of by the defendant on the part of the trial court did' not constitute any substantial violation of any statutory right of the defendant. This section was in full force at the time the trial court permitted plaintiff to file his reply and make the amendment complained of.</p> <p>2. Negligence — “Actionable Negligence”— What Constitutes.</p> <p>To constitute “actionable negligence” upon the part of defendant where the wrong is not willful and intentional, three essential elements are necessary: (1) There must be some duty owing by it to the plaintiff; and (2) a failure upon its part to perform that duty; and (3) injury proximately resulting to the plaintiff from such failure upon its part. C., R. I. & P. v. Duran, 38 Okla. 719, 134 Pac. 876.</p> <p>3. Master and Servant — Injuries to Servant — Duty of Master.</p> <p>The master is bound to exercise reasonable care and diligence to provide a reasonably safe place in which the employee or servant is to work, and also reasonably safe machinery, tools, and appliances with which to work, and to supply the servant with reasonably safe materials upon which to perform the work required of him.</p> <p>4. Same — Care—Question for Jury.</p> <p>In cases like the one at bar, which turn on the question whether the party exercised ordinary care or was guilty of negligence, after the usual appropriate definitions of these particular terms by the court, it is the province of the jury to say, from a consideration of the evidence, whether in the particular* case ordinary care was exercised, or whether there was negligence. In other words, what is ordinary care or what is negligence in the 'particular case is a question of fact for the jury, and not of law for the court.</p> <p>5. Same — Appliances—Statutes.</p> <p>“3746, Machinery to have Safety Devices. The owner or person in charge of a factory or any institution where machinery is used shall provide belt shifters or other mechanical contrivances for the purpose of throw: ing belts on or off puileys, whenever practicable. All machines shall be provided with loose pulleys and all vats, pans, planers, cogs, gearing, belting, shafting, setscrews and machinery of every description shall be properly guarded. * * *</p> <p>“3756. Penalty for Violating this Article. Any person who fails to comply with any of the xn'ovisions of this article shall be deemed guilty of a misdemeanor, except as otherwise provided, and on conviction thereof shall be fined in a sum not less than ten dollars nor more than one hundred dollars for each offense.” '</p> <p>6. Same — Actions—Instructions.</p> <p>The trial judge in this case charged the jury under the Factory Act, and also went further and charged the jury as to the law touching the duty of the defendant to furnish the plaintiff with a reasonably safe place in which to work and reasonably safe machinery with which to work, and also charged the jury concerning the assumption of risk. Had the court simply charged the jury under the Factory Act, then it would not have been necessary to have charged them as to the common-law liability as to a reasonably safe place in which to work, and reasonably safe machinery with which to work and the defense thereto of assumption of risk. But, having done so by proper instructions, we see no reversible error therein.</p> <p>7. Slame — Statutes—Jury Questions — “Negligence Per Se.”</p> <p>This Factory Act is a mandatory statute. The things expressly enumerated therein, together with machinery of every description, shall be properly guarded. This declares the fixed and settled public policy of the state touching these matters and things, and a violation of this act is made a crime and punishable as such. The sovereign, in order to afford greater and better protection to the lives and limbs of the subject who earns a livelihood by working with and around machinery, and in order to lessen the chances of accidents, has expressed her will in the solemn mandates of this mandatory and penal statute, which must be obeyed, and a failure to obey it becomes and is “negligence per se;” and those who disobey it are not entitled to the defense of assumption of risk, but may interpose the defense of contributory negligence. These matters were questions of fact for the jury. They were submitted to the jury. The jury by their verdict have found under the law and the evidence that the defendant was negligent as complained of. This court will not disturb their verdict.</p> <p>8. Same — Statute—Construction — Ejusdem Generis.</p> <p>The doctrine of ejusdem generis was applied in an Ontario case so as to limit materially the effect of the earlier statute. In Indiana the Supreme Court has been inconsistent' in its construction of the statute providing: “All vats, pans, saws, planers, cogs, gearing, belting, shafting, setscrews and machinery of every description.” The rule finally adopted is that the phrase, “machinery of every description,” does not modify in any way the specific appliances mentioned, but embraces all other kinds of machinery, which would be too numerous for the Legislature to mention, although an earlier decision of the Supreme Court, to the effect that the general terms simply referred to other appliances of the same general description gs those indicated by the specific terms, under the doctrine of ejusdem generis, was not in terms overruled. The doctrine of the Washington court is the same as that which appears to prevail in Indiana. And a somewhat similar view is taken of the statute in JSlew South Wales.</p> <p>9. Same.</p> <p>The doctrine of “ejusdem generis” is that where a general word follows particular and specific words of the same nature as itself, it takes its meaning from them, and is presumed to be restricted to the same genus as those words. The language here does not admit of the application of the ejusdem generis doctrine. The phrase “and machinery of every description” cannot be limited by the prior enumeration, for the reason that such enumeration is not an enumeration of machines at all- — the genus of those words is not of the same nature as of “machinery of every description.” A vat is not a machine; neither is a pan, nor a saw. Cogs, gearing, Getting, shafting, and setscrews are not machines, but may each or all enter into and be a part of various ma,chines. Since no enumeration of machinery precedes the general terms, there is nothing to limit those terms, and they are broad enough to cover any machine that is dangerous to life or limb, and which, without impairing its utility, can be guarded.</p> <p>10. Trial — Instructions—Contributory Negligence.</p> <p>In an action for damages based on negligence, wherein contributory negligence on the part of the plaintiff is pleaded as a defense, and there is evidence tending to sustain such defense, an instruction- which ignores the defense of contributory negligence in authorizing the jury to find the issues in favor of the plaintiff, according as the jury may determine certain facts in support of plaintiff’s theory of his case, will not be held erroneous when the court immediately follows said instruction with another, beginning with the words,' “But, upon the other-hand,” etc., and correctly states the law of assumption of risk and of contributory negligence to the jury under the defendant’s theory of the case.</p> <p>11. Master and Servant — Injuries to Servant —Instruction.</p> <p>Instructions examined, and held, on the whole, to substantially state the law applicable to the cause.</p> <p>(Syllabus by Davis, C.)</p>

Error from District Court, Oklahoma County; W. R. Taylor, Judge. Action by the Gault Lumber Company, a corporation, against J. H. Everest and others, to foreclose a mechanic’s lien. Prom a judgment in favor of plaintiff and other defendant lienholders, the defendant J. H. Everest brings error.

<p>Error from District Court, Blaine County; James R. Tolbert, judge.</p> <p>Action by E. M. Prost and others against Lee A. Akin and another. Judgment for defendants. Plaintiffs bring error.</p>

Error from,- District Court, Pittsburg county; A. H. Huston, Assigned Judge. Action by Ella L. Knott, administratrix, etc., against the Et. Smith & Western Kail-road company and others. There was a judgment for plaintiff, and defendants bring error.

Error from District Court, Carter County; A. Eddleman, Judge. Action by Laura E. Hutchins against Sovereign Camp of the Woodmen of the World. There was judgment for plaintiff, and defendant brings error.

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by R. T. Colter and others against T. H. Martin and others. There was a judgment for defendants, and plaintiffs bring error.

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by George C. Beidleman and others against Josie C. Spaulding and others, to foreclose a mortgage. Erom a judgment for plaintiffs, defendants appeal.

<p>Error from District Court. Woodward County; Jas. B. Cullison, Judge.</p> <p>Action by tbe Gerlacli Bank of Woodward against D. C. Herd. There was a judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Canadian County; John W. Hayson, Judge. Action by Ed Shadid, a minor, by his next friend, against the Chicago, Rock Island & Pacific Railway Company, a corporation. There was a judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.</p> <p>Action by tN« Farmers’ National Bank against Mattie Hartoon and others. There was judgment for defendants, and plaintiff brings error.</p>

<p>1. Payment — Necessity of Pleading.</p> <p>Payment is an affirmative defense and to be available must be expressly pleaded. It cannot be shown under a general denial.</p> <p>2. Payment — Presumptions — Burden of Proof.</p> <p>Payment is not presumed, and when the antecedent existence of an indebtedness is proven, the burden of proving its discharge by payment is upon the debtor or person alleging the payment.</p> <p>(Syllabus by Edwards, 0.)</p>

<p>1. Damages — Breach of Contract — Prospective Profits.</p> <p>Prospective profits, proximately resulting from the breach of a contract, are recoverable in an action for damages, where the amount thereof is not contingent and speculative, but can be measured with reasonable certainty.</p> <p>2. Damages — Breach of Contract — Measure.</p> <p>Where a construction company, holding a contract to construct and equip a line of railway, enters into a contract with a sand company, whereby it agrees to construct and equip a switch for the use of the sand company, and to furnish a stipulated number of cars per annum, and to handle the same at competitive freight rates, and to credit the sand company 50 per cent, of the amount of the freight charged on each bill until the total equals the sum of $3,000, which the sand company had advanced on the cost of the construction of the switch, and the construction company defaulted in its contract, and by agreement with the railway company the latter takes over the completion of the construction work, but refused to assume the obligation of the contract with the sand company, and the sand company, in order to get the switch, entered into a new contract with the railway company for its construction, and the switch was constructed, but the railway company refused to account for the $3,000 advanced to the construction company, and also refused to furnish any stipulated number of cars for the use of the sand company, held, that in an action for damages by the said company the construction company was liable to it in damages, and the measure of its damages was the $3,000 advanced, and interest thereon, at 6 per cent, per annum from the date of payment.</p> <p>(Syllabus by Galbraith, O.)</p>

<p>1.New Trial — Sufficiency of Evidence.</p> <p>It is the duty of the trial court, upon a motion for a new trial, which challenges the verdict, upon the ground that it is contrary to the evidence, to weigh the evidence and to approve or disapprove the verdict, and if the verdict is such that in the opinion of the trial court it should not be permitted to stand, and it is such that he cannot conscientiously approve it, and he believes it should have been for the opposite party, it is Us duty to set it aside and grant a new trial.</p> <p>2. New Trial — Motion—Weight of Evidence.</p> <p>In passing on a motion for a new trial, it is the court, and not the jury, that must weigh and determine for itself the effect of the evidence. It cannot be said that a court , approves a verdict when its reason and judgment rebel against the conclusions it expresses.</p> <p>3. New Trial — Sufficiency of Evidence— Verdict.</p> <p>Not only must the jury be satisfied of the righteousness of the conclusion to which it arrives, but, unless that conclusion meets the affirmative, considerate approval of the mind and conscience of the court, it should not, where challenged, be permitted to stand.</p> <p>(Syllabus by Brunson, O.)</p>

<p>1. Appeal and Error — Briefs—Dismissal.</p> <p>Where plaintiff in error fails to file briefs in the Supreme Court in compliance with the rules and orders of the court, his appeal will be dismissed.</p> <p>2. Appeal and Error — Supersedeas Bond— Sureties.</p> <p>In a case appealed to the Supreme Court, where supersedeas bond has been given and approved staying execution and the judgment here is against the appellant, this court, by virtue of the provisions of chapter 249, Sess. Laws 1915, will enter judgment against the sureties on such supersedeas bond.</p> <p>(Syllabus by Brunson, C.)</p>

Error from District Court, Dewey County; T. P. Clay, Judge. Action by Thomas D. Palmer, as administrator of the estate of E. M. Canary, deceased, against the Wichita Falls & Northwestern Railway Company and the Missouri, Kansas & Texas Railway Company. There was a judgment for defendants, and plaintiff brings error.

Error from District Court, Craig County; Preston S. Davis, Judge. Action in ejectment by Emma Johnson (nee Bussey) against J. E. Johnson and others. A demurrer was sustained to plaintiff’s reply, from which ruling plaintiff appeals.

Error from County Court, Garvin County: W. R. Wallace, Judge. Action by the Phoenix Insurance Company of Hartford against D. M. Newell, R. H, Grimmett, and another. There was a judgment against the defendant Newell, and in favor of the other defendants, and plaintiff brings error.

Error from District Court, Washington County; R. H. Hudson, Judge. Action by Vinita Higgins, a minor, by Robert L. Higgins, ber guardian, against John W. Waters, a minor. Judgment for defendant, and plaintiff brings error.

Error from District Court, Adair County ;• John H. Pitehford, Judge. Action by John Freeman against S. J. Langley and another. There was a judgment’ for defendants, and plaintiff brings error..

Error from District Court, Tulsa County ; Conn Linn, Judge. Action between the Board of Education of the City of Tulsa and J. S. Cosden. There was a judgment for the former, and the latter brings error.

Error from County Court, Tulsa County; ■Conn Linn, Judge. Action by L. S. Ooggswell against W. E. Elliott. There was a judgment for plaintiff, .and defendant brings error. The judgment was affirmed, plaintiff moves for judgment against the sureties on the supersedeas bond.

<p>Error from District Court, Garfield County ; James B. Cullison, judge.</p> <p>Action by W. H. Allen against E. A. Pen-darvis. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from Superior Court, Pottawatomie County; Leander G. Pitman, judge.</p> <p>Action by Georgia Bell Yates against J. AY. Mates. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Okfuskee ■County; Geo. C. Crump, Judge. Action by Annie King against James M. Shults and others. There was a judgment ■for defendants, and plaintiff brings error.

Error from District Court, Woods County ; W. C. Crow, judge. Action by Elton L. Leighton, as administrator of the estate of John S. Wagner, deceased, against George W. Crowell, J. A. Stine, and G. E. Nickel. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Pottawatomie County; Charles B. Wilson, Jr., Judge.</p> <p>Action by Tom Hall against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Garvin County; R. McMillan, Judge.</p> <p>Action by John R. Guyer and another against W. B. Crump. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Lily W. Scales against the State National Bank, a corporation, and others. There was a judgment for plaintiff, and certain defendants bring error.

<p>1.Appeal and Error — Ejectment—Demand for Trial — Estoppel to Appeal.</p> <p>No estoppel to contest by appeal the judgment of ouster' in an action of ejectment arises by reason'of the mere filing after judgment of a demand for a trial of defendant’s rights as occupying claimants.</p> <p>2. Ejectment — Actions—Issues.</p> <p>A determination of the rights of an occupying claimant has no proper place in the trial of the main issue in an action of ejectment, even though the parties consent to submit such issues upon the main trial.</p> <p>3. States — Right to Plead Usury — Constitution.</p> <p>The right to plead the defense of usury to a contract executed under the laws of the Indian Territory is preserved by virtue of the Schedule to the Constitution of Oklahoma, even though the action in which such plea is offered was not instituted until after the admission of the state.</p> <p>4. Usury — Plea—Return.</p> <p>The plea of usury to a contract executed under the laws of the Indian Territory, offered in an action of ejectment, no affirmative equitable relief being sought, does. not impose upon the party making such plea any return of the original loan.</p> <p>(Syllabus by Burford, C.)</p>

<p>Attachment — Wrongful Attachment — Theft of Property — Liability of Attaching Plaintiff.</p> <p>Where a sheriff seizes and takes into his possession personal property under an order of attachment wrongfully obtained at the commencement of an action and later dissolved, and a portion of such property is stolen while under control of the sheriff, but without his fault, held, that the plaintiff who procured the issuance and levy of such order of attachment is liable for the damage resulting from the theft, and that the rejection of evidence offered to establish such theft and consequent damage constitutes prejudicial error.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>Error from District Court, Oklahoma County; W. R.'Taylor, Judge.</p> <p>Action by J. J. Dunning against C. C. Ingram and another. There was a judgment for plaintiff, and defendants bring error.</p>

<p>Error from County Court, Greer County; Wylie Snow, Special Judge.</p> <p>Action by tbe Johnson County Savings Bank against L. J. McMinn to recover upon a promissory note. Judgment for plaintiff, defendant appeals.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by George Dixon, administrator of the estate of Theodore E. Dixon, deceased, against the State Mutual Insurance Company. There was a judgment for defendant, and plaintiff brings error.

Error from County Court, Lincoln county; H. M. Jarrett, Judge. Action by the Prague National Bank, a corporation, against Sam Horton. There was judgment for defendant, and from an order granting a new trial, the defendant appeals.

<p>Error from County Court, Oklahoma County ; John W. Ilayson, Judge.</p> <p>Action by J. Robinette against the C. M. Keys Commission Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Garfield County; James B. Cullison, Judge.</p> <p>Action by H. H. Champlin against Joseph Zehr and others. Judgment for plaintiff, and defendant Zehr brings error.</p>

<p>Error from District Court, Garfield County; James B. Cullison, Judge.^</p> <p>Action by H. H. Champlin against C. B. Thompson and others. Judgment for plaintiff, and defendant Thompson brings error.</p>

<p>Error from District Court, Seminole County ; Tom D. McKeown, Judge.</p> <p>Action by Mimey against J. O. Davis, Mal-com Henry and Bob Owens. There was a judgment for plaintiff,, and defendants appeal.</p> <p>The parties will be designated as in the trial court. One Mimey, a Seminole Indian woman, instituted this action against the defendants in the district court of Seminole county. Her petition embraced two counts; the first being an action in ejectment for the possession of a certain tract of land and for damages for its detention, and the second count being an action for the cancellation of a deed to said tract of land. She alleged in her petition that the tract of land in controversy was her allotment, and that defendants had been in the wrongful possession of the same since January 24, 1907. Defendants answered by general denial, and that they were owners of said land by virtue of a deed from plaintiff. Defendants further set up that in July, 1908, in the Circuit Court of the Eastern District of Okláhoma, the United States, as guardian of the estate of the plaintiff and in her behalf, filed an action, seeking the cancellation of the deed herein sought to be canceled and for the same reasons, and that the parties and subject-matter in said action in the said federal circuit court and m the action at bar were the same, and that said action in the federal court wa« still pending and undisposed of, for which reasons they aslsed that this action be abated. To this answer plaintiff; replied by general denial. Afterwards the following instrument was filed, and by the clerk spread upon the minutes:</p> <p>“Sept. 27th, 1913.</p> <p>“Wewoka, Okla. Mr. R. H. Chase, Clerk of the Dist. Court, at Wewoka: This is to demand of you that you dismiss the suit of Mimey v. J. O. Davis but not as to Malcolm Henry, at my costs in full settlement of all trouble and liability between us.</p> <p>“Mimey (her X mark.)”</p> <p>When the case was called for trial on the 11th day of December, 1913, the plaintiff asked permission of the court to withdraw the aforesaid dismissal. The defendants interposed an objection to the withdrawal of said dismissal, for the alleged reason that the same was filed on October 3, 1913. at a time when court was not in session, and that the same effectively dismissed said action, and defendant Davis stated that he appeared specially for the purpose of resisting said motion, and claimed that the court had no jurisdiction since the dismissal. The motion to withdraw the dismissal was sustained by the court. Plaintiff introduced deed to her allotment, embracing the land in controversy, and produced evidence as to the rental value of the land, and it was agreed that she was an enrolled half-blood Seminole. The defendants introduced deed from, plaintiff to them for the land in controversy, dated January 24, 1907. They also introduced a certified Copy of the suit filed in the federal court for the purpose of canceling the aforesaid deed given by plaintiff to defendants. They next introduced deed from plaintiff, Mimey, to defendant Davis, embracing 80 acres of the land in controversy, being the surplus allotment of the said Mimey, this deed being dated September 27, 1913. A written agreement of the same date was also introduced, wherein for a consideration of $25 in cash and other considerations the said Mimey agreed to dismiss her action against defendants. Plaintiff contested said last-named deed and written agreement upon the ground of alleged fraud in inducing the said Mimey to sign the same and the claim that she had been overreached. This was the principal controversy at the trial, and much evidence was introduced upon both sides thereon, but it is unnecessary to review the same here. Before the close of the testimony the plaintiff dismissed. her second cause of action, and the defendants entered a disclaimer as to land embraced in the homestead allotment of' the-said Mimey. The cause was tried to a jury and a verdict by them" returned in favor of plaintiff for the possession of the land and $260.75 damages for its detention. The motion for a new trial was overruled, and the-defendants prosecute this appeal.</p>

<p>Error from District Court, Garfield County; James B. Cullison, Judge. "</p> <p>Action by H. H. Champlin against S. B. Thomason and others. Judgment for plaintiff, and defendant named brings error.</p>

<p>• Error from District Court, Creek County; Wade S. Stanfield, Judge.</p> <p>Action by Jennetta Grounds and another against Ross B. Dingman and others. Erom a judgment for defendants, plaintiffs bring ■error.</p>

Error from District Court, Stephens ■County; Frank M. Bailey, Judge. Action by Emmett Rogers against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.

<p>1. Tidal — Demurrer to Evidence.</p> <p>When the evidence offered by the plaintiff is sufficient to make a prima facie case, it is reversible error on the part of the trial court to sustain a demurrer thereto.</p> <p>2. Same.</p> <p>It is a well-settled rule that a demurrer to the evidence admits all the facts which the evidence tends to prove or of which there is any evidence, however slight, and all inferences which can be logically and reasonably drawn from the evidence.</p> <p>3. Same.</p> <p>The decision of a case by the court upon a demurrer to the evidence is entirely unlike either the decision of a case by the jury upon the evidence or the decision of a case by the court upon a motion for a new trial; for, where the court sustains a demurrer to the evidence, the court must be able to say that admitting every fact that is proved which is favorable to the plaintiff, and admitting every fact that the jury may fairly and legally infer from the evidence favorable to the plaintiff, still the plaintiff has utterly failed to make out some one or more of the material facts of his case.</p> <p>4. Same — Directed Verdict.</p> <p>Court may direct verdict where facts undisputed or of such conclusive character that court in sound judicial discretion would be. compelled to set aside verdict returned in opposition to it.</p> <p>5. Same — Demurrer to Evidence.</p> <p>Question is whether there is enough competent evidence to reasonably sustain verdict. All evidence in conflict with evidence against which action is to be taken must be eliminated, leaving solely the evidence favorable to party against whom such action is leveled. Incompetent testimony received over objection should be eliminated.</p> <p>6. Same — Peremptory Instruction.</p> <p>Peremptory instruction should only be given where all reasonable minds would draw the same conclusion and where such conclusion would be against material averments of plaintiff’s petition. It is error to direct a verdict where there is a controverted question of fact before jury.</p> <p>7. Appeal and Error — Trial—Province of Court — Demurrer to Evidence — Review.</p> <p>It is the settled rule that a demurrer to the evidence admits every fact which the evidence in the slightest degree tends to prove and all inferences or conclusions that may be reasonably and logically drawn from the evidence. This court will consider as withdrawn all the evidence which is most favorable to the party demurring. If the inference to be drawn from the evidence is a reasonable one, although not a necessary one, the court will not invade the province of the jury by taking from it the right to pass on the facts to be deduced from such inference. A demurrer to the evidence not only admits the truth of the evidence of the demurree, but also all the facts which the evidence in any degree tends to prove, and is a waiver of all the evidence of the demurrant which conflicts with that of his adversary and of inferences from his own evidence.</p> <p>(Syllabus by Davis, 0.)</p>