Volume 76 — Oklahoma Reports

Error from District Court, Seminole County; Tom D. McKeown, Judge. Action between Co-wok-ochee and James A. Chapman and others. From judgment of district court reversing order of county court overruling motion to amend judgment, movant brings error.

Error from County Court, Carter County; Thos. W. Champion, Judge. Action by the Moline Plow Company against W. R. Adair, with cross-action or counterclaim by defendant. Verdict and judgment for defendant, and plaintiff brings error.

<p>Error from County Court, Jefferson County: E. 1.. Dillard, Judge.</p> <p>Action by V. L. Richards against the King Collie Company. Fi*om judgment for the plaintiff, the defendant brings error.</p>

<p>An original suit by John Raulerson against State Industrial Commission and others in this coiirt appealing from an award made by the State Industrial Commission.</p>

Error from District Court. Cleveland ■County: F. B. Swank, Judge. Injunction by the First Presbyterian 'Church of Norman against C. T. Walcher and others. From a judgment in favor of the plaintiff the 'defendants bring error.

<p>Original application for mandamus by the State of Oklahoma on the relation .of S. P. Freeling, Attorney General, against Mrs. A. K. Ross, respondent.</p>

<p>Error from District Court, Creek County; Ernest B. Hughes, Judge.</p> <p>Ejectment by George Tucker against M. B. Leonard and others. From judgment for defendants, the plaintiff brought error.</p>

<p>Appeal from Industrial Commission.</p> <p>Petition of Amel Blanlot against the Carbon Coal Company for compensation for injuries. From award denying compensation, the petitioner appeals.</p>

Error from District Court, Noble County; Wm. Bowles, Judge. Consolidated suits by the .Midland Savings ■ and Loan Company against C. K. Nicoll' and others, and by Midland, etc., Loan Company against Kate P. Nicholson and others to foreclose mortgages, and action by D. R. Swaney against Midland, etc.. Loan Company. Erom adverse judgments, the loan company brings •error.

<p>(Syllabus by the Court.)</p> <p>1. Mortgages — Foreclosure—Right to Jury.</p> <p>In an action to recover judgment on promissory notes executed by defendants and for foreclosure of mortgage lien, made to secure their payment, where issue is joined as to the indebtedness due, the case is one properly triable before a jury, as provided in sec. 4993. Rev. Laws 1910.</p> <p>2. Principal a,ml Agent — Existence of Agency — Jury Question.</p> <p>Agency, when made an issue, is a question of fact to be determined, in proper cases, by the jury, from all the facts and circumstances in evidence.</p> <p>3.Appeal and Error — Instructions—Harmless Error.</p> <p>While it is error for the court to instruct the jury upon questions of law not applicable to the issues involved, or evidence in support thereof, eyen though the instruction correctly states an abstract proposition of law, yet the giving of such instruction will not afford ground for reversal unless it is apparent that the instruction was calculated to confuse or mislead the jury to the prejudice of the losing party.</p> <p>4 Trial — Instructions — Requested Instructions.</p> <p>It is not error for the court to refuse a requested charge when the same proposition is covered by the instructions given, and which, taken as a whole, fairly submit to the jury the law applicable to the case.</p>

Error from District Court, Noble County; W. M. Bowles. Judge. Action for divorce and, alimony by Anna Hansing against Harry C. Hansing. From judgment for plaintiff, the defendant brings error. '

An application for writ of mandamus to disqualify Honorable S. C. Fullerton, district judge of Ottawa county, from proceeding with the trial of a cause brought by plaintiffs to cancel a deed to certain mining land in Ottawa county.

Error from District Court, Wagoner County; Fred P. Branson, Judge. Action ■ by Nathan W. Smith against Hiram Smith and others. From judgment for defendants, the substituted plaintiffs bring error.

<p>An original proceeding by Quincy V. Win-ningham against R. M. Chase, County Judge, in this court for writ of prohibition.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Erroiv-Record Proper— Agreed Facts.</p> <p>An agreed statement of facts, not being a part of the record, unless made so by hill of ■exceptions or case-made, cannot be considered on error, although a copy of it is attached to the transcript of the record.</p> <p>2. Same.</p> <p>The “record” proper in a civil action does not include an agreed statement of facts.</p>

<p>Error from District Court, Mayes County; Preston S. Davis, Judge.</p> <p>Action by W. H. Cater against B. W. Covington. From judgment for plaintiff, defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>Executors and Administrators — Foreign Executor — Right to Sue.</p> <p>N. died in Pottawatomie county, Oklahoma, leaving surviving him as his sole and only heir, C., who resided in Salem county, New Jersey. 0. secured an order from the county court of Pottawatomie county, Oklahoma, authorizing V., the administrator of the estate of N., to disburse to her $45,000. Before the order was effectuated, O. died. The last will and testament of -0. was duly probated in the surrogate court of Salem county, New Jersey, and D. qualified as executor under the will. I)., as executor, authorized R., an attorney in Oklahoma, to receive from V., administrator aforesaid, the $45,000. After Y. had paid R. this amount, R. paid to V. out of the sum so received. $5,000, in full of all fees and charges of Y. as administrator of N.’s estate. This payment was made without authority from D. Held, that D. was the proper party to bring suit against V. to recover the $5,000.</p>

<p>(Syllabus by the Court.)</p> <p>1. Judgment — bounty Court — Presumptions —Collateral Attack.</p> <p>The county courts of this state are courts of record and have original jurisdiction in probate matters. The orders and judgments of such courts, when acting within their jurisdiction, are entitled to the same favorable presumption and the same immunity from collateral attack as are accorded those of other courts of general jurisdiction.</p> <p>2. Executors and Administrators — Settle-tlement of Suit.</p> <p>N., residing in Pottawatomie county, Oklahoma, died intestate. O., a resident of New Jersey, claimed to be his only surviving heir and entitled to his estate. Her right was contested by others. Pending the hearing. C. died testate. D. qualified as the executor of the last will and testament of C. • Thereafter, upon hearing by the county court. C. was decreed the sole heir of N. Within the time for appeal. D. and the contesting claimants entered into an agreement whereby the latter, in consideration of $3,000. agreed not to appeal from the decree so entered, and to allow the same to become final The agreement so made was approved by the county court of Pottawatomie county, and the administrator of the estate of N. was ordered and directed to pay out of the funds of th-> estate of X. to the contesting heirs, $3,000. Held, that the order of the county court was not void, and that V. as administrator of the estate of N. was protected by virtue of said order in making payment.</p> <p>3. Compromise and Settlement — Family Arrangements.</p> <p>Compromises of doubtful rights are upheld by general policy as tending to prevent litigation in all enlightened systems of jurisprudence. Much more readily will courts of equity give effect to agreements of compromise of conflicting claims, especially when they partake of the nature of family arrangements.</p> <p>4. Executors and Administrators — Claims— Jurisdiction to Allow.</p> <p>X., residing in Pottawatomie county, Oklahoma, died leaving surviving him as his sole heir, C., residing in New Jersey. C. died testate prior to receiving the estate of N. Held, that the county court of Pottawatomie county, Oklahoma, was without jurisdiction to allow the administrator of N’s estate credit for payment of claims against the estate of 0.</p>

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by Anna Freeman,' administrator, against E. Norris Bryant. From a judgment vacating a judgment for plaintiff, she brings error.</p>

Error from District Court, McIntosh County : R. W. Higgins, Judge, Action to recover real estate and to quiet title by William Durant, a minor, against E. L. Black and others. From judgment for defendants, the plaintiff brings error.

Error from District Court, Muskogee County; R. P. de Graffenried, Judge. Action of conversion by Missouri Stewart and another against the Haskell National Bank of Haskell. From judgment for plaintiffs, the defendant brings error.

<p>Error from District Court, Atoka County; J. H. Linebaugh, Judge.</p> <p>Action by Amos K. Bass against the City of Atoka and J. E. Davis. Judgment for defendant City of Atoka, and plaintiff, Bass, brings error.</p>

<p>From an order of the Corporation Commission requiring the railroad company to furnish to the refining company tank cars in which to ship its products, the railroad company appeals.</p>

<p>Error from District Court, Haskell County; W. H. Brown, Judge.</p> <p>Action by C. B. Milam against May Milam for divorce. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1.Highways — Construction—Estimate.</p> <p>The estimate provided for in section 1, c 2S, Session Laws 1916, in relation to constructing permanent roads should be an itemized statement of the cost of said road, and filed with the county clerk with the plans and specifications.</p> <p>2. Same — Contract — Exceeding Estimate— Injunction.</p> <p>Section 1, c: 28, Session Laws of 1916, provides: “No contracts shall be made by the board of county commissioners at a price exceeding the estimate made and approved by the consulting engineer.” Where the only estimate prepared estimates the cost of the grading and the paving separately upon each section of road to be built and constructed, and the combined contracts for the grading and paving of each section of the road exceed the total cost as contained in the estimate for said grading and paving, the enforcement of said contracts for each section which exceed the gross estimate of said section will be enjoined.</p> <p>3. Same — Bonds—Use of Proceeds.</p> <p>Where bonds are voted by a county to build permanent roads, the proceeds cannot be used by the county to simply grade roads, but must be used for the purpose of constructing permanent roads, and for no other purpose.</p> <p>4. Same — Permanent Roads Defined.</p> <p>Section 6, c. 30, Session Laws of 1916, defines permanent roads as follows: “Permanent i’oads are defined to mean roads surfaced with crushed rock, gravel,- macadam, brick, concrete, asphalt-macadam, or any other hard surfacing material.”</p> <p>5. Same — Contracts—Validity—Injunction.</p> <p>In an action by certain taxpayers to enjoin the county treasurer from paying out funds derived from the sale of road bends, and to declare certain contracts entered into by the county commissioners for the construction of certain roads illegal and void, for the reason that no estimate had ever been prepared and filed as provided by law, where upon the trial of the case it is shown that contracts for the construction of the road were entered into on December 20, 1917, and that no estimate was filed with the county clerk, but the testimony of the county clerk was that some time in January, 1918, one of the county commissioners gave to the county clerk what purported to be an estimate of the cost of said work, though not itemized, nor approved by said consulting engineer, which statement or purported estimate had never been marked filed by the clerk, and the evidence in the case discloses that the contracts entered into by the county commissioners are in excess of the purported estimate, the same being the only estimate that was in existence, held, said contracts are in violation of section 1, c. 28, Session Laws 1916,. and the enforcement of the same will be enjoined.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Case-Made—Contents.</p> <p>A case-made which does not contain a copy of any judgment or final order rendered by the trial court, and which fails to affirmatively show that any order was rendered by the trial court, presents nothing that may be reviewed by the Supreme Court, and upon motion of the appellee to dismiss for said reason, when appellant makes no effort to amend or correct said case-made, the appeal will be dismissed.</p>

<p>Error from District Court, Oklahoma County; John W. Iiayson, Judge.</p> <p>Action by J. B. Riddle and another against A. F. Stewart and another for breach of a building contract. From judgment in favor of the plaintiffs the defendants bring error.</p>

Error from District Court, Tulsa County; Owen Owen, Judge. Suit for injunction by the Dux Oil & Gas Company against one Wilson, with intervention by J. A. Bearman, and judgment for the Dux Oil & Gas Company, which on Bear-man’s appeal was reversed and remanded, with direction to enter judgment for Bear-man and for an accounting, whereupon he filed a supplemental petition, bringing in George C. Probst and others for an accounting, etc. Judgment for Bearman, and Probst and…

Error from County Court, Noble County; A. Duff Tillery, Judge. Proceedings by Yaelov Hejduk against Fred Snyder. From the judgment on a verdict for defendant in a trial de novo in the county court, on appeal from a judgment of a justice of the peace, plaintiff brings error.

Error from District Court, Pittsburg County; R. W. Higgins, Judge. Suit by the City National Bank of McAles-ter against E. W. Schreiner and another. Judgment for plaintiff against defendant Schreiner, and he brings error.

<p>Error from District Court, Cotton County; Cham Jones, Judge.</p> <p>Action by C. E. Douglass against I. E. Tur-ben, John C. Keys, and H. L. Thompson. Judgment for plaintiff against defendants Turben and Keys, and they bring error.</p>

<p>(Syllabus by the Court.)</p> <p>1.- Carriers — Delivery of Freight,</p> <p>Under section 821, Rev. Laws of 1910, in order for a railway company to absolve itself from liability as an insurer of goods transported by it, it must deliver the property to the consignee at the place to which it is addressed, in the manner usual at that place.</p> <p>2. Same — Delivery of Cotton to Compress— Effect.</p> <p>In an action for cotton destroyed by fire after delivery to an independent compress company, with which consignee had made arrangements to receive the goods from the railway company, where it is shown that the customary way of making delivery was for the railway company to unload the cotton at the compress, to receive from the compress company cotton tickets identifying each bale by weight, number, etc., and to take said tickets to plaintiff’s agent, who, upon surrender of the tickets, would pay the freight charges and surrender the bill of lading for said cotton to the railway company, and where it is shown that the consignments of cotton in controversy were promptly unloaded by the railway company, the compress tickets delivered to the railway company on the same daj', and plaintiff’s agent had been advised by the railway company that the cotton had been unloaded and that the company had the tickets, and upon his request the agent of the railway company promised to bring the tickets to the bank and turn them over to plaintiff’s agent, but neglected to do so, held, since the railway company retained the tickets for its own convenience and benefit, and since the plaintiff could not secure the cotton, as a matter of right, without the tickets which represented the actual cotton, the railway company had not made delivery of the cotton in the manner usual at that pince. and delivery not having been completed at the time of the fire, the relation of carrier and shipper still existed, and the railway company was liable to the plaintiff, as insurer, for the loss of said cotton.</p> <p>I-Iarrison, J., dissenting.</p>

Error from District Court, Garfield County ; James B. Cullison, Judge. Suit for injunction by George J. Gensman and others against the City of Enid and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by the State of Oklahoma, on the relation of S. P. Freeling, Attorney General, against the Citizens’ National Bank of Broken Arrow. Judgment for plaintiff, and defendant brings error.

Action before the Corporation Commission, by the Tulsa • Street Railway Company, against the Oklahoma Union Railway Company. To review an order of the commission, the complainant appeals.

<p>Error from District Court, Pontotoc County; J. W. Bolen, Judge.</p> <p>Action by Francis Bandy, formerly Francis Jones, administratrix of tbe estate of Olay Jones, deceased, against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Verdict and judgment for plaintiff, motion for new trial overruled, and defendants bring error.</p>

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Suit by W. C. Bentley and others against the Zelma Oil Company, the Almez Oil Company, the Nemo Oil Company, and .H. B. Houghton, president of such corporations and trustee for some one or more of them. Judgment for defendants, and plaintiffs bring error.</p>

<p>Original action for writ of prohibition by .the State of Oklahoma, on the relation of Hall C. Miller and others, against W. A. Huser, as County Judge of Okfuskee County,</p>

<p>(Syllabus by the Court.)</p> <p>1. Insurance — Ambiguous Language in Life Policy — Construction.</p> <p>Where the meaning of language in a policy of life insurance is ambiguous or susceptible of two different constructions, the same will be strictly construed against the insurer, and that construction adopted which is most favorable to the insured.</p> <p>2. Same — Total Disability — Payment of Premiums.</p> <p>In an action on an insurance policy, which contains the provision “that if the insured shall furnish due proof of total permanent disability that he will be continuously and wholly prevented thereby, for life, from pursuing., any and all gainful occupations, the company agrees to páy regularly for the insured the premiums,” then in the same section contains the further provision, “if, however, the insured shall recover so as to be able to engage in any gainful occupation during the premium paying period, the company’s obligation to pay the premiums shall cease,” said sections are ambiguous and contradictory, but, when construed together, must mean that if the insured is totally disabled, and will probably be so for life, he comes within the provisions of the policy requiring the company to pay the premiums.</p> <p>3. Same — Proof of Total Disability — Waiver.</p> <p>The provision in the insurance policy requiring proof of total disability to be furnished the company within a certain definite time is waived by the company denying liability within such time upon other grounds than failure to furnish proof of total disability.</p> <p>4. Appeal and Error — Harmless Error — Admission of Evidence.</p> <p>Under section 4759 of Revised Laws of 1910 the allegation of any appointment of authority is taken as true, unless the denial of the same be verified by affidavit of a party, his agent or attorney. The plaintiff alleged that a certain party was agent of defendant, which allegation was undenied, as above required. Evidence was offered on the trial of the cause to establish the agency thus admitted. Held, that the reception of the same was not prejudicial error.</p>

Error from . District Court, Washington County; R. B. Boone, Judge. Action by Hanna B. Zuber against the Missouri, Kansas & Texas Railway Company and another. From judgment for the plaintiff the defendants bring error.

<p>Action between J. H. Berry and others and the Eureka Construction Company. From the judgment, the parties first named bring error.</p>

<p>Error from District Court, Greer County; T. P. Clay. Judge.</p> <p>Action on note by the Western Silo Company against L. G. Cousins. From judgment for defendant and order overruling motion for new trial, the plaintiff brings error.</p>

<p>Error from District Court, Johnston County; J. H. Linebaugh, Judge.</p> <p>Action by Floyd Shock against Kirby Purdom and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Murray County; F. B. Swank, Judge. Action by Calvin B. Tracy, by his next friend, N. E. Tracy, against Mark Tracy and others. Demurrer to plaintiff’s evidence sustained, and he brings error.

Error from District Court, Muskogee County; R. P. deGraft'enreid, Judge. Action by Aaron Drumright and others against Frank Brown and -others. Judgment for defendants, and plaintiffs bring error.

- Error from District Court, Craig County; Preston S. Davis, Judge. Suit for injunction by John D. Humble against Prank Carden, William Pace, and Pearl Smith, with cross-petition by defendants, and suit by William Pace against John D. Humble. Cases consolidated for trial and judgment for plaintiff Humble against Pace, Carden, and Smith, and they bring error.

Error from District Court, Seminole County: J. AY. Bolen, Judge. Action in ejectment by Munnah, Seminole Roll No. 1066, against E. S. Gates. Verdict and judgment for defendant, motions for judgment notwithstanding the verdict and for a new trial overruled, and plaintiff brings error.

Error from Cotmty Court, Kiowa County; J. S. Carpenter, Judge. Action by A. J. Smith against T. D.' Huck-aby and N. D. Harris to foreclose a chattel mortgage and to secure possession of property, in which defendants defaulted, and the Curreather’s Mercantile Company and another appeared as interpleaders. Judgment for interpleaders, and plaintiff brings error.

Error from District Court, Blaine County; Thomas A. Edwards, Judge. Action by James A. Wyman against tie Chicago, Rock Island & Pacific Railway Company. Defendant’s demurrer to tie evidence sustained, and judgment entered for it; plaintiff’s motion for a new trial overruled, and he brings error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Frivolous Appeal — Dismissal.</p> <p>Where plaintiff sues upon a promissory note and defendant answers by unverified general denial, and, upon motion of plaintiff, judgment is rendered for plaintiff on the pleadings, an appeal, assigning the rendition of such judgment as error, without stating any defense to plaintiff’s action, will be dismissed as frivolous.</p>

Error from District Court, Cotton County; Cham Jones, Judge. Action by Jacob M. Dickinson, as receiver, against G. C. Blackwood, to recover taxes paid under protest. From judgment for defendant the plaintiff brings error.

Error.from District Court, Muskogee County; R. C. Allen, Judge. Action by Kenneth H. Murchison against the Mid-Continent Oil & Gas Company, in which Jeff D. Ellis and another intervened. From the judgment the intervenors bring error.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by J. B. Klein Iron & Foundry Company against A. B. Mays & Co. and others to foreclose a sub-contractor’s lien. From the judgment the plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Justices of the Peace — Jurisdiction—Acts Outside District.</p> <p>A justice of the peace being a township officer under the Constitution and- laws of this state, he can perform his official acts only in his own township.</p> <p>2. Same — Appeal—Authentication of Record.</p> <p>The act of the justice of the peace in signing and authenticating the record herein while residing in a sister state, was void.</p> <p>3. Same — Jurisdiction on Appeal.</p> <p>Proceedings in the appellate court are based upon the justice of the peace transcript, without which it has no jurisdiction of the subject-matter.</p>

Error from District Court, Garfield County ; James B. Oullison, Judge. Action toy the Enid Cemetery Association against H. M. Spalding and another. Judgment against Spalding. Upon his death action was revived in the name of Elinor L. Spalding, administratrix, who brings error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Case-Made—Filing in Trial Court.</p> <p>Where the case-made was not filed among the papers in the case in the trial court, as required by section 5242, Rev. Laws 1910, the case-made will be stricken from the files of this court and the appeal by such case-made dismissed.</p>

<p>(Syllabus by tbe Court.)</p> <p>1. Jury — Right of Trial by — Equity Cases.</p> <p>Tbe constitutional guaranty that “the right of trial by jury shall be and remain inviolate” has no reference to the trial of issues of fact in equity cases.</p> <p>2. Action — Character of — How Determined —Pleadings.</p> <p>The character of an action is to be determined by the nature of the issues made by the pleadings and the rights and remedies of the parties, and not alone by the form in which the action is brought or by the prayer for relief, which, in this respect, forms no material part of the pleading.</p> <p>3. Mortgages — Single Transaction — Venue.</p> <p>Where several mortgages are made to different parcels of land to secure one and the same debt they constitute one mortgage and their unity is determined by the debt secured and an action may be maintained in any county in which any part of the land is situated which is covered by any one of the several mortgages.</p> <p>4. Appeal and Error — Review of Equity Case.</p> <p>In equitable actions the judgment of the trial court will not be set aside unless it is clearly against the weight of the evidence.</p> <p>5. Mortgages — Foreclosure—Defenses—Foreign Judgment — Appeal—Harmless Error.</p> <p>Where husband and wife, on August 15, 1930, while residents of the state of Colorado, joined in the execution of certain promissory notes and mortgages upon the land of the wife situated in this state, and after default in the payment of notes the same were merged into judgments in the courts of Colorado in favor of the payee in said notes on the 16th and 18th days of April, 1912, and thereafter, on August 23, 1913, the said payee filed a suit to foreclose his mortgage lien upon said land in the district court in this state against the makers of said notes and mortgages, but did not seek a personal judgment in such foreclosure proceedings for his debt but merely to condemn the land to sale for the payment thereof — held: (a) That the plaintiff may maintain his foreclosure action without suing upon his foreign judgment and that subdivision 4 of sec. 4657, Rev. Laws 1910, providing that n suit upon a foreign judgment must be brought within one year, is not available as a defense: (b) that the fact that verbal testimony was admitted upon the trial of said foreclosure suit tending to prove that the defendants were divorced in the st'ffe of Colorado on September 39, 1912, constituted harmless error.</p> <p>6. Mortgages — Foreclosure—Evidence—Sufficiency.</p> <p>Record examined and held that the judgment of the court is not "against the clear weight of the evidence.</p> <p>7.Appeal and Error — Harmless Error.</p> <p>“No judgment shall be set adide or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”</p>

Error from District Court, Muskogee County; Benjamin B.»Wheeler, Judge. Appeal of the Muskogee Times-Democrat from the action of the Board of County Commissioners of Muskogee County in refusing to allow a claim. From judgment for the county, the claimant brings error.

Error from District Court, Washington County; R. B. Boone, Judge. Action by Minnie B. Armstrong against Prank Phillips and the Lewcinda Oil Company. Demurrer to plaintiff’s evidence sustained, and judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Negligence — Elements.</p> <p>To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the djefendantirto 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.</p> <p>2. Same — When Jury Question.</p> <p>Where the evidence on the primary negligence of the defendant is such that reasonable and intelligent men might differ as to the facts and inferences to be drawn therefrom, the case is one for the jury.</p> <p>3. Railroads — Negligence—Persons on Trade —Caye Required.</p> <p>It is a sound and wholesome rule of law, humane and conservative of human life, that, without regard to the question whether the person killed or injured in the particular case was or was not a trespasser or a bare licensee upon the track of the railway company, the company is bound to exercise special care and watchfulness at any point upon its track, where people may be expected upon the track in considerable numbers, as, where the roadbed is constantly used by pedestrians. At such places the railway company is bound to anticipate the presence of persons on the track, to keep a reasonable lookout for them, to give warning signals, such as will apprise them of the danger of an approaching train, to moderate the speed of its train so as to enable them to escape injury; and a failure of duty in this respect will make the railway company liable to any person thereby injured, subject, of course, to the qualification that his contributory negligence may bar a recovery.</p> <p>4.Same.</p> <p>Where deceased was walking along the railroad track, in broad daylight, in a well settled community, near but not on a public crossing, where, to the knowledge of the railway company, the public had been for a long time prior thereto accustomed to- using the track for their own convenience as a pathway, and where the track was so situated that deceased might have been clearly visible for a considerable distance ahead of the train, the duty rested upon the railway company to use such degree of care for the safety of deceased as was commensurate with the probability that some person might be using the track as a pathway, or, differently stated, to use reasonable and ordinary care to avoid injury to persons whose presence on its premises was known, or whose presence it might reasonably have anticipated, and a failure to use such care, resulting in injury and death to deceased, will make the railway company liable therefor.</p> <p>5 Same — Licensees—Warning.</p> <p>Nor does the fact that the defendant had placed signs along its right of way, and handed out printed cards to pedestrians, warning the public against trespassing thereon, absolve it from the duty imposed by the custom of the public which had ripened into a license, where it appears that no evidence was introduced that the injured man had ever seen one of the cards, and that this custom of the public had continued unabated after the placing of said signs and the giving out of said cards.</p> <p>6. Negligence — Proximate Cause — When Jury Question.</p> <p>In a suit for personal injuries the question of whether or not defendant’s negligence is the proximate cause of the injury sustained should be left to the jury where the evidence is conflicting, or where men of ordinary intelligence might differ as to the effect of the evidence on such issue.</p> <p>7. Railroads — Negligence—Persons on Track —Instructions.</p> <p>Instructions examined and found that no material or prejudicial error has been committed therein.</p>

Error from District Court, Hughes County; Tom D. McKeown, Assigned Judge. Action by James C. Chupco and others against James A. Chapman and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court Oklahoma County; John W. Hayson, Judge. Action by J. B. Stewart and another against the City of Oklahoma City. Prom judgment for plaintiffs, the defendant brings error.

Original petition for writ of prohibition by Joe T. Taylor against W. P. Preeman, judge of the Eighth judicial district, state of Oklahoma, sitting in Carter county.

Error from District Court, Craig County; Preston S. Davis, Judge. Action by the state on the relation of C. Caldwell, county attorney, and another against Theo. D. B. Frear and another. From judgment for plaintiff^, the defendants bring error.

Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge. Action by Vernon V. Harris against Harry H. Rogers, James A. Chapman, and the Mc-Man Oil Company, to cancel conveyances of certain lands and oil leases conveyed by him to the Oil Company, and by the Oil Company to Rogers. Judgment for plaintiff and defendants appeal.

Error from District Court, Atoka County: J. H. Linebaugh, Judge. Action for possession and to quiet title by B. B. Braley and E. T. Clymer against C. E. Smith, J. H. Gernert, and Clarence J. Crockett, in which, on the court’s order, Willie Tumbler was made a party defendant. Judgment for plaintiffs on a directed verdict. Motion by defendants Smith, Gernert, and Tumbler for a new trial denied, and- they bring error.

Error from District Court, Wagoner County; W. J. Campbell, Assigned Judge. Action by M. Curtis to quiet title under an oil and gas lease covering certain described land belonging to Lucinda Harris. Prom a judgment in favor of defendants, plaintiff appeals.

Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge. Action by W. G. Flournoy and R. D. Flour-noy, partners doing business as Flournoy Bros., against John B. Jameson. Judgment for plaintiffs, and defendant brings error.

<p>Error from Superior Court, Muskogee County; Parrar L. McCain, Judge.</p>

Error from District Court, Creek County; M. L. Bozarth, Judge. Mandamus by the State on the relation of the Board of County Commissioners of Creek County against P. O. Poster, Clerk, and others. Judgment for defendants, and relator brings error.

<p>Original action by W. E. Lambert for writ of habeas corpus.</p>

<p>1. Libel and Slander — Words Libelous Per Se.</p> <p>In this state it is libelous per se to write of or concerning a white person that said person is colored.</p> <p>2. Same — Actions—Parties Liaile.</p> <p>A cause of action for libel cannot be maintained against a hospital for the insane on account of the act of its officers and employes in placing a white patient in that part of the institution set apart and used for colored patients.</p> <p>3. Same — Construction of Language.</p> <p>In construing language alleged to be libelous, the courts should give to said language the same meaning and understanding as is usually applied thereto.</p> <p>4. Same — ¡Statutory Definition.</p> <p>Section 4956 of the Revised Laws of 1910 considered, and held, that the general words “or other fixed representation” are used for the purpose of including other species of the same hind as the particular words there used — “writing, printing, picture, or effigy.”</p> <p>5. Same — Privileged Communications — Letters.</p> <p>The letter which constitutes the second cause of action and is attached to the petition as a part thereof examined, and the same held to be privileged.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Creek County; Mark L. Bozarth, Judge. Action by Ambrose Miller and another against J. D. Kimmel and others to cancel a deed. From judgment for defendants, plaintiffs bring error.

<p>Error from District Court, Creek County; Ernest B. Hughes, Judge.</p> <p>Action by Ambrose Miller and another against O. R. Howard and another to cancel a deed. From judgment for defendants, tfie plaintiffs bring error.</p>

<p>Error from District Court, Mayes County; Preston S. Davis, Judge.</p> <p>Action by J. B. Montgomery against John Z. Hogan and others. Judgment dismissing action, and plaintiff brings error.</p>

<p>Error from District Court, Alfalfa County; James B. Cullison, Judge.</p> <p>Action by Midland Savings & Loan. Company against Farmers State Bank of Inger-soll. From judgment for plaintiff, defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>Guardian and Ward — Domicile of Ward.</p> <p>The right to fix the residence of an incompetent person under guardianship in this state is regulated by section 3334, Rev. Laws 1910, under which the guardian of the person of such incompetent may fix the residence of his wa)rd at any place within the state.</p>

<p>(Syllabus by the Court.)</p> <p>Taxation — Income Tax — Remedy of Taxpayer.</p> <p>The remedy of an income taxpayer aggrieved at the action of the State Auditor in adjusting and correcting an income tax assessment is by appeal to the district court, and not ¡by writ of certiorari to the Supreme Court.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Dismissal of Appeal.</p> <p>Cause dismissed for reasons stated in opinion.</p>

<p>Error from County Court, Carter County; Thos. W. Champion, Judge.</p> <p>Action by Moline Plow Company against N. M. Hooven. Judgment for defendant, and plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Trial — Demurrer to Evidence — Admissions.</p> <p>A demurrer admits the truth of all the evidence introduced and all the facts which it tends to establish, as well as every fair and reasonable inference, and should be overruled unless the evidence and all inferences which a jury could reasonably draw from it are insufficient to support a verdict for plaintiff.</p> <p>2. Master and Servant — Tools and Appliances.</p> <p>The tools and appliances adopted by the master must be reasonably safe to do the work required of them and for which purpose they are used.</p> <p>3. Same — Fellow Servants — Duty of Master.</p> <p>The law requires the master to furnish his employes with a sufficient number of fellow servants to safely do the work with the appliances and machinery adopted and used by the master.</p> <p>4. Same — Question for Jury — Negligence.</p> <p>Whether the injury sustained by the employe is due to the negligence of the master in not furnishing a sufficient number of fellow servants with which to safely do the work is a question of fact to be submitted to the jury, where there is any evidence which reasonably tends to support the cause of action.</p> <p>5. Same — Question for Jury — Assumption Bisk.</p> <p>Under the provisions of section 6, art. 23, of the Constitution, the defense of assumption of risk is a question of fact to be submitted to the jury.</p> <p>6. Negligence — Circumstantial Evidence— Sufficiency.</p> <p>Negligence, like any other fact, may be proved from circumstantial evidence when the facts and circumstances are sufficient to warrant a reasonable inference of the negligence alleged.</p> <p>7.Master and Servant — Action for Injury— Instructions.</p> <p>Instructions examined and held, to correctly state the law applicable to the issues presented on the proof.</p>

<p>(Syllabus by the Court.)</p> <p>1. Attorney and Client — Disbarment Proceedings — Report of Referee.</p> <p>A referee in a disbarment proceeding is an officer of the court, and the court has full authority to supervise and control his report by setting it aside, or confirming or modifying it, as the facts and the law require.</p> <p>2. Same — Review—Report of Referee.</p> <p>The report of a referee appointed to take evidence and report his findings of fact and conclusions of law in a disbarment proceeding is not conclusive as to either the findings of fact or conclusions of law, but is accorded every reasonable presumption of being cor-reet. The 'burden is on the party attacking it, but it is to be freely set aside by the court if found to be incorrect.</p> <p>3. Attorney ¡and Client — Disbarment Proceedings — Presumptions.</p> <p>In a proceeding to disbar an attorney at law, such attorney is presumed to be innocent of the charges preferred and to ha<ve performed his duty as an officer of the court in accordance with his oath, and the evidence in support of the charges must satisfy the court to a reasonable certainty that the charges are true and warrant a judgment of disbarment.</p> <p>4. Same — Sufficiency of Evidence.</p> <p>Transcript of the evidence examined, and held: That the same supports the findings of the referee; findings and conclusions of the referee confirmed and the proceeding dismissed.</p>

<p>(Syllabus by the Court.)</p> <p>1.Trial — Jury—Verdict in Equity — Effect.</p> <p>In the trial of equity cases the court may call in a jury for the purpose of advising the court upon questions of fact, and the court may either adopt or reject their conclusions as to the same, as he sees fit.</p> <p>2. Same — Special Interrogatories.</p> <p>Where a jury is impaneled in a case purely of equitable cognizance to aid the court in determining the facts, it is entirely within the discretion of the court as to what interrogatories the court propounds to such jury: and error cannot properly be assigned that the court erred in propounding such interrogatories. or that the interrogatories propounded were not germane to the issues involved.</p> <p>3. Appeal and Error — Equity Causes — Consideration of Evidence.</p> <p>In all cases which were cognizable only in a court of chancery, this court on appeal has the pdwer to consider the whole record, to weigh the evidence, and, when the judgment of the trial court is clearly against the weight of the evidence, render or cause to be rendered such judgment as the trial court should have rendered.</p>

<p>Error from District Court, Atoka County; J. H. Linebaugh, Judge. <</p> <p>Action on contract b-y M. D. Michael against the City of Atoka. Prom judgment for defendant, the plaintiff brings error.</p>

Error from District Court, Love County; IV. F. Freeman, Judge. Action by Wilburn Gaines against Clotilde B. Hajmes and another, as executors of the estate of R. H. Haynes, deceased, and Will Riley, to have a deed decreed to be a mortgage. From judgment for plaintiff, the defendants bring error. Upon the death of plaintiff, cause revived in the name of his heirs.

Error from District Court, Garvin County; F. B. Swank, Judge. Action by Phelix N. Choate, a minor, by R. M. Love, his next friend and legal guardian, against E. N. Nesbitt, P. O. Ringer, and the Alliance Trust Company, Limited, of Dundee, Scotland, consolidated with action by Leslie R. Choate, a minor, by his next friend and guardian, etc., against the Alliance Trust Company.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Evidence — Sufficiency.</p> <p>Where there, is no evidence reasonably tending to support the verdict, this court will, when the sufficiency of the evidence is properly challenged, set the verdict aside.</p> <p>2. Banks and Banking — Action on Certificates of Deposit.</p> <p>Record examined, and held, there is no evidence reasonably tending to support the verdict and the same cannot be justified upon any hypothesis presented by the evidence.</p>

Eiror from District Court, Pawnee County - L. M. Poe, Judge. Action by tbe Uncle Sam Oil Company against A. M. Richards and others. From judgment for defendants, the plaintiff brings error.

Error from District Court, Choctaw County; O. E. Dudley, Judge. Action by E. E. Blocker and N. F. Miller, partners doing business under the firm name and style of the Blocker-Miller Companv, against the St.. Louis & San Francisco Railroad Company and James W. Lusk and others, its receivers. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Tulsa County : Conn Linn, Judge. Action by the First National Bank of Tulsa, Okla., against the Oklahoma TJnion Traction Company, to foreclose a note and mortgage, in which a temporary receiver was appointed to take charge of defendant’s property. and in which the Colonial Trust Company and the Central' State Bank of Kiefer were allowed to file petitions in intervention against the.defendant praying for foreclosure of mortgages against it, and .in…

<p>Error from District Court, McClaiu County; F. B. Swank, Judge.</p> <p>Action by Laura Powell against Mary E. Campbell, administratrix, and others. Judgment for plaintiff, and defendants appeal.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Review — General Finding of Court.</p> <p>When a jury is waived and a cause is tried to the court and the finding of the court is general, such finding is a finding of every special thing necessary to be found to sustain the general finding, and such finding, when reasonably supported by the evidence in the case, is conclusive upon this court upon all doubtful and uncertain questions of fact so found.</p> <p>55. Pleading — Amendments.</p> <p>The trial court may, in the furtherance of justice and in the exercise of sound discretion, before or after judgment, permit tlie amendment of all pleadings to conform to the facts proved, when such amendment does not change substantially the claim or defense.</p>

<p>Error from County Court, Lincoln County ; Ira E. Billingslea, Judge.</p> <p>Action by the Bank of Commerce of Mc-Loud, Okla., against W. F. Canafax. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Garfield County ; James B. Cullison, Judge. Action by Adolph Hauser and wife against B. A. Garber and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Muskogee County; R. P. deGraffenreid, Judge. Proceedings for appointment of guardian for Luther Manuel, minor. From order of county court disapproving nomination of Carr Peterson as guardian and appointing Ed K. Brook, the minor and Peterson appealed to district court. Later the minor dismissed his appeal, and Brook moved for dismissal of Peterson’s appeal, and from an order dismissing same, he brings error.

Error from District, Court, Lincoln County ; Hal Johnson, Judge. Action by township officials of Ponca township, Lincoln county, for mandamus to compel the county treasurer to transfer to plaintiffs funds held by the treasurer for the use and benefit of the township. Judgment for plaintiffs, and defendant appeals.

Error from District Court, Lincoln County; Hal Johnson, Judge. Action by the State ’ on relation of the County Attorney of Lincoln County against the officers of Chandler township to oust said officers, and declare such offices abolished. Judgment for defendants, and plaintiff appeals.

<p>Error from District Court, Payne County; A. R. Swank, Judge.</p> <p>Action by L. A. Woolworth against Perfection Refining Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Marshall County; Jesse M. Hatchett, Judge.</p> <p>Action by Mrs. Anna Zirkle against the Chicago, Rock Island and Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Ottawa County; Vein E. Thompson, Judge. From order of county court refusing to set aside forfeiture of appearance bond of Mrs. Otis Wells, her sureties, J. B. Reed and another, bring error.

<p>Error from County Court, Cleveland County; B. F. Wolf, Judge.</p> <p>Action by Hannah F. Haines, administra-trix. against the First National Bank of Washington, Oklahoma. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Action by W. L. Smith against the Missouri, Kansas & Texas Railway Company. Judgment for defendant, and plaintiff bring error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Action — Joinder of Causes.</p> <p>Rev. Laws 1910, sec. 4738, authorizes the uniting of several causes of action in the same petition whether they be such as have heretofore been denominated legal or equitable, or both, where they all arise out of the same transaction or transactions connected with the same subject of action.</p> <p>2. Reformation of Instruments — Scope of Relief — Damages for Breach.</p> <p>As courts of equity have always asserteu the right to give complete relief on all matters properly brought before them, the party who seeks in a court of equity relief by reformation of a written instrument or deed may ask and obtain reformation thereof and damages for breach of a general warranty therein contained when reformed.</p> <p>3. Limitation of Actions — Estoppel of Grantor to Plead Statute.</p> <p>In an action for the reformation of a deed and for -damages for a breach of a covenant of warranty therein when reformed, it appeared that some time after the delivery ol the deed and the payment of the consideration by the grantee, such grantee was informed that the deed did not contain covenants of warranty as represented to him by the grantor at the time the deed was delivered, and thereafter, within the period of limitation, the grantee made request of the grantor for a return of the money paid, as he, the grantee, was threatened by suit for the land, and the grantor, knowing that such suit was imminent, requested the grantee to remain in possession of the land and to make a deferred payment then due of tie purchase price, assuring the grantee that hxs title was good, and that the grantor was back of the same, and the grantee was thereby induced to remain in possession of the land and make said deferred payment, and thereafter the grantee, on being served with summons in said suit, again requested the grantor to make good the title or return the purchase price, whereupon the grantor again assured the grantee that he had a good title, and that he would back the same, and requested the grantee to further wait and not sue him, and he, also being a party defendant, requested the grantee to await the outcome of the suit, saying he would employ counsel to defend on behalf of both. He did employ counsel, who filed separate demurrers for each, but, on the same being overruled by the court, the grantor, without knowledge or consent, and without informing the grantee, his codefendant, filed a disclaimer in said suit, which was unknown to the grantee until a few weeks before the trial by which the grantee was evicted from the greater portion of the land. Within one year after he was evicted from the land, he brought suit for reformation of the deed, and upon the covenants of warranty in said deed, and the grantor pleaded the statute of limitations. Held, that the grantor is estopped from maintaining such defense</p> <p>4. Trial — Direction of Verdict — Failure of Defense.</p> <p>Where, under the pleadings, the plaintiff is entitled to recover unless a certain defense pleaded by the defendant is sustained, ano where no evidence is prodxtced reasonably tending to support such defense, a verdicr should be directed in favor of the plaintiff.</p> <p>5. Appeal and Error — Affirmance.</p> <p>Record examined, and, it appearing that substantial justice has been done, the judgment of the trial court is affirmed.</p> <p>Owen, O. J., dissenting.</p>

<p>(Syllabus by the Court.)</p> <p>1. Sales — False Representations — Opinions.</p> <p>False representations, made in the sale of a jack, that such animal was all right and a good breeder, the only purpose for which he was of any value, were not mere expressions of opinion as to value, but amounted to representations of material extrinsic facts affecting value, and are sufficient on which to predicate action for rescission of the contract.</p> <p>2. Sales — Cave¡at Emptor — Fraud.</p> <p>The rule of caveat emptor does not apply where the seller is guilty of the fraudulent concealment of a latent defect affecting the value of the property for the purpose for which it is bought.</p> <p>3. Sales — Trial—Instructions.</p> <p>Instructions, considered as a whole, held to correctly state the law and fairly submit the issues to the jury arising upon the proof.</p> <p>4. Appeal and Error — Evidence—Sufficiency on Appeal.</p> <p>Where there is a conflict in the evidence as to material facts, and there is evidence reasonably tending to support the findings of the jury, the verdict and judgment based thereon will not be disturbed.-</p>

<p>(Syllabus by the Court.)</p> <p>1. Master and Servant — Workmen’s Compensation — Review.</p> <p>Under the provisions of section 10, art. 2, of the Workmen’s Compensation Act (Laws of 1915, c. 246), the decision of the State Industrial Commission is final as to all questions of fact.</p> <p>2. Same — Award of Industrial Commission.</p> <p>Actions regularly commenced in the Supreme Court for the purpose of reviewing an award or decision of the State Industrial Commission, where the aggrieved party has complied with rule 1, of the rules prescribed by the Supreme Court governing the commencement and trial of such actions, the same will be heard in a summary manner upon the record and proceedings had before the commission.</p> <p>3. Same.</p> <p>Record and proceedings of the commission examined, and there being no error, the decision thereof is affirmed.</p>

<p>Error from District Court, Washington County; R. B. Boone, Judge.</p> <p>Action by W. C. Meéker and others against W. P. Garretson and others. Prom order overruling motion to dissolve attachment, defendants bring error.</p>

<p>Error from District Court, Nowata County ; C. W. Mason, Judge.</p> <p>Action by Cripple Creek Oil Company, a corporation, against C. A. King and J. C. Newbert. Prom a judgment for defendants, plaintiff brings error.</p>

<p>Error from District Court, Garvin County; F. .B. Swank, Judge.</p> <p>Action by Farmers Exchange Bank of Lindsay against A. G. Cudd and others. Judgment for plaintiff, and defendants bring error.</p>