Volume 97 — Oklahoma Reports

<p>Commissioners’ Opinion, Division No. 2.</p> <p>Error from District Court, Grant County; J. W. Bird, Judge.</p> <p>Action by John Clift against John Nolan. ■Judgment for plaintiff, and defendant brings err< r.</p>

<p>1. Evidence — Cause of Injuries — Expert Testimony not Necessary.</p> <p>In an action for personal injuries, where the plaintiff was thrown from a buggy and struck the pavement with her head, face, and side, it was competent for the plaintiff to testify that the cut above the eye and the bruises on her face, side, and body were the result of striking the pavement and that ag a result of such injuries she was confined to her bed for 30 days.</p> <p>2. Appeal and Error — Presumptions—Basis of Verdict for Personal Injuries.</p> <p>In an action for personal injuries, where it was shown that the plaintiff was thrown from a buggy in which she was riding and her head, face, and side struck the pavement, as a result of which she was confined to her bed for 30 days, and received medical attention, and the verdict was for $500, it will not be presumed that any part of such verdict was an award for permanent injuries.</p> <p>3. Appeal and Error — Exclusion of Evidence —Necessity for Record'.</p> <p>This court cannot say that an objection to a question was improperly sustained where no statement as to what the witness was expected to testify is contained in the record.</p> <p>(Syllabus by Hay, 0.)</p>

<p>Commissioners’ Opinion, Division No. 1.</p> <p>Error from District Court, Tulsa County; 2. I. ,T. Holt, Judge.</p> <p>Action by E. R Carhart et al. against E. N. DeGroff. Judgment for plaintiffs, and defendant appeals.</p>

Commissioners’ Opinion. Division No. 1. Error from District Court] Stephens County; Cham Jones, Judge. Action by William Hines against George R. Brock. Judgment for plaintiff, and defendant brings error.

<p>1. Indians — Inherited Lands — Conveyance by Full-Blood Heirs — Approval.</p> <p>Where the heirs of a member of either of the Five Civilized Tribes of Indians are full-blood Indians, title to lands allotted to such member and inherited by such full-blood Indian heirs, where such member died subsequent to the act of Congress April 26, 1900, can be acquired only by procuring a conveyance of the lands from such heirs and having the same approved by the Secretary of the Interior, prior to the act of May 27, 1908, and thereafter by the county court having jurisdiction of the settlement of the estate of such deceased member.</p> <p>2. Same — Invalidity of Conveyance.</p> <p>A conveyance of allotted restricted Indian lands, made in violation of a federal statute authorizing the alienation of such lands is against public policy and absolutely void, and in no manner can any right, title, or interest in such lands be acquired under such conveyance.</p> <p>3. Same — Adverse Possession as Against Government and Restricted Indians.</p> <p>There can be no adverse possession against the federal government which can form a basis of title by estopped, or under the statute of limitations, and the same rule applies where the lands involved are lands that have been allotted to Indians with restrictions upon the alienation of title thereto by the Indians, so long as such restrictions upon alienation exist.</p> <p>(Syllabus by Jarman, C.)</p>

<p>1. Carriers — Negligence—Personal Injury-Doctrine of Last Clear Chance.</p> <p>Plaintiff’s negligence does not excuse defendant from duty of exercising reasonable care after discovery of peril. The doctrine of last clear chance applies usually in cases where the plaintiff or his property is in some danger from a threatened contact with some agency under the control of the defendant when the plaintiff cannot, and the defendant can, prevent the injury. Defendant is charged with the duty of using ordinary care to prevent injury or accident in such cases when defendant sees plaintiff’s peril, It is defendant’s duty to act with reasonable care after thus seeing the other, to avoid the injury, and defendant cannot insist upon the other’s negligence as a protection when after defendant has discovered the other’s situation, it does not exercise reasonable care to prevent the accident.</p> <p>Held, that under the facts in the instant case it was proper to submit to the jury the question as to whether plaintiff in error, after discovering the dangerous situation of the defendant in error, exercised reasonable care and prudence to avoid the injury.</p> <p>Instructions examined, and held, that the instructions as a whole properly state the doctrine of last clear chance, and do not impose upon the defendant a greater burden than that of using ordinary care to avoid injuring plaintiff after the discovery of his peril.</p> <p>2. Negligence — Personal Injuries — Contributory Negligence.</p> <p>Contributory negligence is the negligence of the person on account of whose injury the action was brought, amounting to a want of ordinary care, when combined with a proximate connection between this want of care and the injury complained of.</p> <p>Heidi that an instruction which states the substance of contributory negligence in apt terms in accordance with the foregoing definition is sufficient, although the instruction does not contain the specific term “contributory negligence.”</p> <p>3. Appeal and Error — Discretion of Court— Admission of Imperfect Diagrams in Evidence.</p> <p>To render admissible in evidence a cut, model or diagram, preliminary evidence should be given of the correctness of the representation, and when such cut or diagram is admitted in evidence, not as an exact representation o fthis interior of the cab of defendant’s engine, and where further evidence discloses the difference between such representation and defendant’s cab, and defendant is given a full opportunity to explain such cut, held, that the decision of the trial court on the question of the admissibility of such cut will not be reviewed unless there is a manifest abuse of discretion. Held, further, that no such clear or manifest abuse of discretion appears in the ruling of the trial court on the admissibility of such cut or diagram.</p> <p>4. Damages — Personal Injuries — Excessive Recovery.</p> <p>When an elderly man, 51 years of age, is injured by the negligence of defendant, and such injuries are permanent and serious, involving in effect the destruction of an arm, the breaking of an ear-drum, and impairment of hearing, the verdict in the sum of $16,500 is not excessive. ,</p> <p>Record examined and held, that plaintiff’s injuries were serious, painful and permanent, and greatly impaired his earning capacity.</p> <p>Held, further, that a verdict of $16,500 was not excessive.</p> <p>(Syllabus by Lyons, C.)</p>

<p>1. Mortgages — Deed as Mortgage.</p> <p>Josephine Latimer, owner of 40 acres of land, conveyed the same by warranty deed to Rollow to secure the payment of $421.60 owing to Rollow by her husband. When the money became due, pursuant to >an agreement between the liusband of Josephine Latimer afid D. P. Latimer, Rollow conveyed the land by quitclaim deed to D. P. Latimer for the amount of the indebtedness and a small additional sum which was paid to the husband of Josephine Latimer. D. P. Latimer, in the division of his property among his children, conveyed this tract of land to Oynthia Latimer by warranty deed. Held, Cynthia Latimer held as mortgagee and not as owner.</p> <p>2. Same.</p> <p>The attorney of Cynthia Latimer, upon rexiresentation to Josephine Latimer and her husband that Cynthia Latimer was dissatisfied with the quitclaim deed from Rollow to D. P. Latimer, induced them, without any other consideration than that of satisfying Cynthia Latimer, to execute a warranty deed to Cynthia Latimer.- Held, there was sufficient evidence to sustain the findings of the trial court that the same was intended by Josephine Latimer and her husband to be a mortgage.</p> <p>(Syllabus by Ray, C.)</p>

<p>Commissioners’ Opinion, Division No. 3.</p> <p>Action by H. O. Morris against J. L. Hull and others. From the judgment, Hull brings ern i'.</p>

Commissioners’ Opinion, Division No. 2. Error from District Court, Oklahoma County; Edward D. Oldfield, Judge. From assessment of income tax by Frank O. Carter, State Auditor, H. A. McCauley, guardian of Joseph F. Berry hill, a minor, appealed to the district court. Judgment for appellant, and the State Auditor brings error.

<p>Commissioners’ Opinion, Division No. 5.</p> <p>Error from District Court, Logan County ; C. C. Smith, Judge.</p> <p>Action by S. E. Shore against the Board of Education of the Town of Crescent et al. From a judgment for the defendants, plaintiff appeals.</p>

<p>1. Witnesses — Testimony of Transactions with Persons Since Deceased — Waiver of Incompetency.</p> <p>The incompetency of a witness to testify concerning transactions or communications had with a person since deceased is waived by the objecting party eliciting on cross-examination testimony relating to such transactions or communications, or by showing on cross-examination that such transactions or communications occurred, or by calling that witness, and showing on direct examination that such transaction or communication occurred.</p> <p>2. Trusts — Deed as Title in Trust — Evi-dencie.</p> <p>The deed showing title will not be decreed to be 'a title in trust unless the parol evidence thereof be clear, satisfactory, and convincing.</p> <p>3. Sam® — Resulting Trust — Sufficiency of Parol Evidence.</p> <p>A constructive trust may be established by parol evidence, but the law for the safety of titles requires that the proof should be of the most satisfactory kind. The onus of establishing a constructive trust rests upon him who seeks its enforcement, and before a court of equity will be warranted in making a decree therefor the evidence must be clear, unequivocal, and decisive.</p> <p>4. Same.</p> <p>The evidence in this case examined, and held, not sufficiently satisfactory to establish a resulting trust.</p> <p>(Syllabus by Jones, O.)</p>

<p>Commissioners’ Opinion, Division No. 5.</p> <p>Error from District Court, Garfield County ; James B. Cullison, Judge.</p> <p>Action by Frank Rector against the City of Enid, a municipal corporation. Judgment for plaintiff, and defendant appeals.'</p>

<p>Commissioners’ Opinion, Division No. 5.</p> <p>Error from District Court, Okfuskee County; John L. Norman, Judge.</p> <p>Action by John Thomas Stephens against Mutual Aid Union, a life insurance company. From a judgment in favor of the plaintiff, defendant brings error.</p>

<p>Commissioners’ Opinion, Division No. 3.</p> <p>Error from District Court, Oklahoma County; James I. Phelps, Judge. ></p> <p>Action by William Little against Oklahoma Railroad Company, a eorporatioh. Judgment for defendant, and plaintiff brings error.</p>

<p>Corporations — Wrongful Transfer and Cancellation of Stock — Equity Relief for Stockholders.</p> <p>Where an officer of a corporation holds certain stock belonging to T. in trust in the amount of 10,000 shares, and said officer, together with the other officers of the corporation, causes the stock of T. to be canceled on the books of the corporation, and upon demand by T. for said stock refuses to issue him 10,000 share of stock, held, that a court of equity, upon a proper showing, will compel said corporation to issue sai<l 10,000 shares of stock to T., and cause the stock to be registered and placed of record in the proper books of said corporation and deliver same to T.</p> <p>(Syllabus by Maxey, O.)</p>

<p>1. .Appeal and Error — Trial—Sufficiency of Preliminary Proof — Discretion of Court.</p> <p>In the trial of a case in which one of the issues of fact involved is the grade and classification of certain baled cotton after shipment, the sufficiency of the preliminary proof as to the identity of the cotton at the point of destination and grading is within the sound judicial discretion of the trial court, and where there is any competent evidence which identifies the cotton, and no contrary proof is offered, the action of the trial court in holding such preliminary proof sufficient will not be disturbed in the absence of a showing that such discretion was abused.</p> <p>2. Corporations — Liability of Director— Trustees of Dissolved Corporation — Sufficiency of Pleading and ’Evidence.</p> <p>A general allegation in a petition against a dissolved corporation and its directors as trustees, under Coinp. Stat. 1921, secs. 5361-62, that said trustees “are liable to said creditors to the extent of said corporation property which came into their hands,” is sufficient as against a general demurrer, and where the evidence discloses that prior to dissolution all of the corporate property was conveyed to one of the directors for a stated" consideration of $10,000, and after dissolution was conveyed to another of the directors, such evidence was sufficient to support a finding by the jury in favor of the plaintiff as to the personal liability of such directors.</p> <p>(Syllabus by Logsdon, O.)</p>

C Error from District Court, Pittsburg County; Harve L. Melton, Judge. Action by A. R. Reeves, trustee in bankruptcy for the estate of F. L. Johnson, against C. W. Crum and others. Judgment for defendants, and plaintiff appeals.

<p>1. Frauds, Statute of — Conveyances of Real Estate — Homestead.</p> <p>No- deed, mortgage, or other conveyance relating to real estate or any1 interest therein, other than for a lease for a period not to exceed one year, shall be valid until reduced to writing and subscribed by the grantors; and no deed, mortgage, or contract relating to the homestead exempt by law, except a lease for a period not exceeding one year, shall be valid unless in writing and subscribed by both husband and wife, where both are living and not divorced or legally separated, except to the extent hereinafter provided. Section 1143, Ecr T aws 1910 ; 5240, Comp; Stát. 1921.</p> <p>2. Homestead — Conveyance —Invalidity of Separate Deeds by Spouses.</p> <p>Under the above provisions of the statues of Oklahoma, the homestead exempt by law cannot be alienated except by a written instrument joined in and subscribed by both husband and wife, where that relation exists. The execution and delivery of two separate and distinct deeds by each of the spouses is not a sufficient compliance with the statute to convey title to the homestead.</p> <p>3. Same — Abandonment — Conveyande by One Spouse.</p> <p>When property has once been impressed with the homestead character, it must be made to clearly appear that both the husband and wife have voluntarily intended to relinquish and did abandon the homestead, and that another homestead has been acquired, before either spouse can convey the same without being joined in • the deed of conveyance by the other so long as the relationship of husband and wife exists. Long v. Talley, 84 Okla. 38, 201 Pac. 990.</p> <p>(Syllabus by Jones, C.)</p>