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error.

MISSAL.

it to be done, connives at it, or does not pre-, business on said premises. In consideration of vent it."

said property being restored to the owner aforeThe admission of such testimony was not said he is required to execute a bond with suffiWe have examined the record and the state as liquidated damages in case of vio

cient sureties in the sum of $1,000, to be paid to find that there is no error in the admission lation of the judgment and decree by said A. R. of testimony prejudicial to the defendant, nor Balch, his servants, agents, or employés; said do we find any prejudicial error in the exclu- bond to be filed and approved by the court' clerk, sion of testimony. Most of the testimony of whereupon this decree shall immediately become

This order shall be continued in fered by the defendant and excluded by the force." court consisted of hearsay or of self-serving

The lower court should be instructed to statements, and was not competent.

cause such modification to be entered of recThe evidence in this case sustains the al. ord in the proceedings below, and in all other legations contained in the petition, and shows respects the judgment of the lower court that the defendant was engaged in a busi- should be affirmed, at the cost of the defendness which annoyed, injured, and endangered ant. the comfort, repose, and safety of others, and also offended public decency. It shows

PER CURIAM. Adopted in whole. that the defendant was engaged in the vio

(63 Okl. 238) lation of the prohibitory liquor laws of the

SADDLER v. SCOTT. state of Oklahoma, was guilty of selling cig

(No. 4665.) arettes to minors, and of permitting lewd, (Supreme Court of Oklahoma. April 24, 1917.) profane, and lascivious characters, both men

(Syllabus by the Court.) and women, to congregate about his business, APPEAL AND ERROB Cm773(2) WANT OF and indulge in lewd, boisterous, and indecent PROSECUTION-BRIEF-RULE OF COURT-DISacts, greatly to the annoyance of the good citizenship of the small town of Moore. We required by rule 7 of this court (38 Okl. vi, 95

Where plaintiff in error fails to file brief as unhesitatingly say that the judgment of the Pac. vi), the appeal will be dismissed for want lower court was righteous and in the inter- of prosecution. est of good morals and public decency.

[Ed. Note. For other cases, see Appeal and [4] We would be inclined to let the order Error, Cent. Dig. $8 3104, 3108.) of the lower court stand without modifica Action between J. Le Roy Saddler and E. tion, but the county attorney in his brief has F. Scott. Judgment for the latter, and the cited the case of Hill et al. v. State, 45 Okl. former brings error. Appeal dismissed. 367, 145 Pac. 492, a case in which Justice Kane modified the order of the court below

OWEN, J. The petition in error and casein a case similar to the one at bar by allow made were filed in this court December 19, ing, under conditions imposed by the court, 1912. The plaintiff in error has failed to file the building to be used for legitimate pur- Okl. vi, 95 Pac. vi). For failure to comply

brief as required by rule 7 of this court (38 poses. The brief for the state, in this case, suggests a modification of the order of the with this rule this appeal is dismissed for lower court which we think would meet the want of prosecution. All the Justices conends of justice, which suggestion we have

cur. decided to adopt. The order of the lower

(63 Okl. 243) court, with reference to the building and

SADDLER V. LEAHY. (No. 4666.) property, is therefore modified to read as follows:

(Supreme Court of Oklahoma. April 24, 1917.) “That the sheriff of Cleveland county, Okl.,

(Syllabus by the Court.) take an invoice of all stock and fixtures now in

APPEAL AND ERROR On 773(2) WANT OF said building, and return the invoice of all goods of an intoxicating or contraband nature to

PROSECUTION-RULE OF COURT-DISMISSAL the board of county commissioners of Cleveland

Where plaintiff in error fails to file brief as county, Okl.; that said board may make such required by rule 7 of this court (38 Okl. vi, 95 disposition of said stock and fixtures and fur- Pac. vi), the appeal will be dismissed for want niture in any manner as provided by law; that

of prosecution. all personal property seized and found not to [Ed. Note. For other cases, see Appeal and be of an intoxicating or contraband nature nor Error, Cent. Dig. 88 3104, 3108.] used in keeping or maintaining such nuisance

Action between J. Le Roy Saddler and W. shall be returned to the owner thereof; that the building in controversy should be restored T. Leahy. Judgment for the latter, and the to plaintiff in error by the sheriff of Cleveland former brings error. Appeal dismissed. county upon the condition that said A. R. Balch should observe in all respects the order of the OWEN, J. The plaintiff in error having court, and shall not at any time either in per- failed to comply with rule 7 of this court (38 son or by agents, tenant, or subtenant enter in Okl. vi, 95 Pac. vi), this appeal is dismissed or upon or conduct any unlawful business of any for want of prosecution. nature whatsoever in or upon the premises, or

All the Justices permit any person to conduct any such unlawful concur.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(65 Okl. 139)

dence was insufficient to warrant any reWESTERN UNION TELEGRAPH Co. v.covery as exemplary damages, and that the CATES. (No. 7011.)

trial court erred in refusing to require the (Supreme Court of Oklahoma. Jan. 2, 1917. plaintiff to accept the offer made by the de Rehearing Denied May 15, 1917.) fendant at the trial, and in permitting any

recovery as exemplary damages. (Syllabus by the Court.)

[1] Under Section 2851, Rev. Laws 1910, 1. DAMAGES 91(1)→PUNITIVE DAMAGES- exemplary or punitive damages can be reGROUNDS.

In an action for the breach of an obligation covered in an action for the breach of an not arising from contract, exemplary or punitive obligation not arising from contract only damages can be recovered, in addition to the where the defendant has been guilty of opactual damages, only where the defendant has pression, fraud, malice, actual or presumed. been guilty of oppression, fraud, or malice, ac- This action cannot be treated by the plaintiff tual or presumed.

(Ed. Note. -For other cases, see Damages, as one for breach of a contract and the re Cent. Dig. 88 193-198.]

covery of exemplary damages upheld on any 2. DAMAGES 91(1) – PUNITIVE DAMAGES, theory, for to do so would do violence to the TORT-EVIDENCE.

general rule that exemplary damages can To authorize a recovery for exemplary or punitive damages, in an action sounding in tort, never be recovered for the mere breach of the evidence must show some element of oppres- contract irrespective of the motive on the sion, fraud or malice; i. e., the act which con- part of the defendant which prompted the stitutes the cause of action must have been actuated by or accompanied with some evil intent, breach, except in certain cases which are or must have been the result of such gross neg- exceptions to the general rule and in casligence as is deemed equivalent to such intent. es where the statute specifically author

[Ed. Note. For other cases, see Damages, izes such recovery. This case comes withCent. Dig. $8 193–198.]

in none of such excepted cases. There3. TELEGRAPHS AND TELEPHONES Om66(4)—

FAILURE TO DELIVER MESSAGE-GROSS NEG. | fore the action, so far as the exemplary damLIGENCE-PUNITIVE DAMAGES.

age feature of it is concerned, must be treatThe evidence in this case fails to show that ed as one sounding in tort. the conduct of the defendant, which is alleged as the cause of action, was actuated by or ac

[2] Treating the action as being one in companied with any evil intent, or was such tort, can a recovery of exemplary or punigross negligence as is deemed equivalent to such tive damages be sustained under the evidence intent.

in the case? Under the section of the stat[Ed. Note.-For other cases, see Telegraphs ute, supra, as construed by the decisions of and Telephones, Cent. Dig. 8 63.)

this court, which are in harmony with the Commissioners' Opinion, Division No. 5. leading decisions upon this question, to auError from District Court, Osage County; thorize a recovery of exemplary or punitive R. H. Hudson, Judge.

damages, the evidence must show some eleAction by J. W. Cates against the Western ment of oppression, fraud, or malice; that is, Union Telegraph Company. Judgment for the act which constitutes the cause of action plaintiff, and defendant brings error. Re must have been actuated by or accompanied versed.

with some evil intent, or must have been the Preston A. Shinn, of Pawhuska, and result of such gross negligence as is deemed George H. Fearons, of New York City, for equivalent to such intent. Chicago, R. I. & plaintiff in error. H. P. White, of Pawhuska, P. Ry. Co. v. Wells, 156 Pac. 314 (not yet for defendant in error.

officially reported); Western Union Tele

graph Co. v. Garrett, 158 Pac. 619 (not yet CAMPBELL, C. In the court below, J. officially reported); Western Union Tele W. Cates, who was the plaintiff, recovered graph Co. v. Reeves, 34 Okl. 468, 126 Pac. exemplary damages against the Western Un- 216, and cases cited therein. It is true that ion Telegraph Company, the defendant, for in the case of Western Union Telegraph Co. the failure to deliver a death message. From

v. Garrett, supra, the court held the evidence that recovery, the defendant has appealed sufficient to warrant the submission of the and presents to this court the question of the question of exemplary damages to the jury sufficiency of the evidence to sustain such a for determination, but there is nothing in recovery. In addition to such exemplary that case which militates against the gendamage, actual damage in the sum of 32 eral and uniform rule as above stated. In cents was presumably allowed by the jury. that case the court, in passing upon the sufThe defendant at the trial offered to pay ficiency of the evidence, said: the amount of actual damages claimed by “Taking into consideration the intimate ac the plaintiff and the costs accrued to the time that he was in the office two or three times a

quaintance of defendant's agent with plaintiff, of such offer, but such offer was refused, and day, and no mention ever made of this telethe trial resulted in a judgment for the gram or explanation offered for a failure to deplaintiff for $500, which amount, less 32 liver, we think the weight of authority authoriz

ed the court and jury to conclude that defendant cents, was exemplary damages.

was guilty of gross negligence amounting to a The contention in this court is that the evi- I wanton disregard of the rights of plaintiff.”

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*

As we read the decisions, it is not every woman was expecting, and he took it to the case of grossly negligent conduct which will house where she was visiting, and she signed warrant the infliction of exemplary or puni- for it, but when she opened it she said it was tive damages, but the authorities seem to not for her, and gave it back to him. There uniformly require that the conduct which was introduced in evidence the delivery constitutes the gross negligence must have sheet showing the delivery of the message to been actuated or accompanied with some Mrs. Williams on the morning the message evil intent, or such conduct must have been was received, which she gave back to the of a character so grossly negligent as to be messenger boy after reading it and finding deemed equivalent to such intent. We have out that it was not for her. The plaintiff read the evidence in this case with a view of showed that the addressee had lived in Pawdetermining whether the conduct of the de- huska for two years prior to the date of the fendant's agent, in the matter of delivering receipt of the message, and had all that the death message, constituted gross negli- time worked at the light plant, and was the gence. There can be no question but that the engineer of the plant; that his name was in defendant's agent was guilty of negligence the city directory, and that a phone was in under the evidence in this case. But such the office of the light plant; that the message determination does not materially assist in was not delivered to him for five or six days the solution of the question presented in this after it was received at the office in Pawappeal. It must be determined from the huska; and that he had to call at the office evidence that the defendant's agent was guilty of defendant before he got the message. of gross negligence before the question be- The evidence showed that the message as comes complex to any degree. Our statute received gave the address of the sendee as (section 2919, R. L. 1910) defines gross neg. being Pawhuskee, % Electric Light Plant, ligence as follows: “Gross negligence is the but such address was not placed upon the want of slight care and diligence.” Section copy which was made and which was at2917, R. L. 1910, defines slight care and dili- tempted to be delivered. Neither the mesgence as follows: “Slight care or diligence is senger boy nor the agent knew W. T. Wilsuch as persons of ordinary prudence

liams to whom the message was addressed. exercise about their own affairs of slight

We must say that the agent of the defendimportance."

ant made some effort to deliver the message [3] Taking these definitions as a guide, in good faith. He perhaps did not make the and measuring the conduct of the defend- effort that a person of ordinary prudence ant's agent by them, what conclusion must would have made, but he did exercise slight we reach? The evidence upon the question diligence to make the delivery of the mesas to what was done by the defendant's agent sage to the addressee, and acted in the matin attempting to make delivery of the message in question is not disputed. The tele- ter of making delivery of the message as if it gram was addressed to W. T. Williams. The conduct was such as might reasonably be ex

a matter of slight importance. His messenger boy testified that he was given the message by the agent for delivery to the pected of ordinary prudent persons in mataddressee, and that after he received it he ters of slight importance to themselves.

We therefore are of the opinion that the took it to a person living on Ninth street in the city of Pawhuska by the name of Wil- defendant exercised slight care and diligence liams, and tried to deliver it, but was told in endeavoring to make delivery of the mesthat it was not for such person; that he did sage in question, and that no exemplary damnot leave the message there, but brought it ages were recoverable under the rule anback with him, and made inquiries on the nounced in the case of Western Union Telestreets if anybody had seen the man wil graph Co. v. Reeves, supra. We arrive at liams whose name was on the message; that this conclusion from the uncontradicted evi. he did not know the man whose name was

dence in the case, and hold that the evidence on the message; that he brought the mes

is insufficient to support any verdict for ex. sage into the office and told the agent that emplary or punitive damages. The trial he could not locate the man anywhere; that court should have required the plaintiff to the agent told him to try again, and he took accept the offer of the defendant to pay the the message and tried to deliver it the sec

actual damages which were sued for by the ond time, and after inquiring around he took plaintiff, and the defendant should have paid the message back to the office, and had never

the costs to that date, and judgment should seen the message since then; that he took have been rendered for such amount only. the message to the person on Ninth street

The judgment appealed from is reversed, because inquiry had been made at the office and this cause remanded to the trial court, for a message for a Mrs. Williams who was with directions to enter judgment in accord. visiting on Ninth street just a day or two ance with this opinion. before this message came, and when it came he thought it was the message which this PER CURIAM. Adopted in whole.

were

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(65 Okl. 141)

I plaintiff and cross-petitioners, and defendant BOYD v. WINTE et al. (No. 7256.) A. W. Boyd brings error. Reversed and re(Supreme Court of Oklahoma. Jan. 9. 1917. / manded. Rehearing Denied May 15, 1917.)

Wilson, Tomerlin & Buckholts, of Okla

homa City, for plaintiff in error. Keaton, (Syllabus by the Court.)

Wells & Johnston and S. A. Horton, all of 1. APPEAL AND ERROR 522(1)-EXCLUSION Oklahoma City, for defendants in error. OF EVIDENCE-ERROR-REVIEW.

An order of the trial court, sustaining an objection to the introduction of evidence by the

RUMMONS, C. This action was commencdefendant for the reason that the answer fails to state facts constituting a defense, is a part

arted in the district court of Oklahoma county of the record proper, and an error in making by the defendant in error, Chas. Winte, such order may be reviewed in this court upon against T. M. Daniel and wife, and the plaintranscript accompanied by a petition in error timp in

tiff in error, to recover upon a promissory duly presenting the same. (Ed. Note.-For other cases, see Appeal and

note executed by T. M. Daniel and wife and Error, Cent. Dig. 88 2367, 2368, 2370, 2371.)

to foreclose a mortgage upon real estate in 2. TRUSTS 70%"RESULTING TRUST"-TI

Oklahoma county to secure the same. The TLE TO PROPERTY.

defendants in error H. F. Vulbrock and S. M. "Resulting trusts" are those which arise Gloyd filed cross-petitions to recover upon where the legal estate in property is disposed notes executed by T. M. Daniel and wife and of, conveyed, or transferred, but the intent ap dears or is inferred from the terms of the dis-to foreclose a mortgage upon said real estate position or from accompanying facts and cir; to secure the same. Recovery was sought cumstances that the beneficial interest is not to against the plaintiff in error because he had go or be enjoyed with the legal title. In such

assumed the payment of said debts in a cona case a trust is implied or results in favor of the person for whom the equitable interest is as

veyance of said real estate to him from Dansumed to have been intended, and whom equity iel and wife. The answer of Boyd alleged deems to be the real owner.

that the insertion of the assumption of the [Ed. Note.-For other cases, see Trusts, Cent. mortgages in the deed was without his knowlDig. $$ 95-97. For other definitions, see Words and Phrases,

edge or consent and without consideration ; First and Second Series, Resulting Trust.]

that he permitted the title to be transferred 3. TRUSTS 6312, 88_RESULTING TRUSTS

to him by Daniel as an accommodation to STATUTE OF FRAUDS-PAROL EVIDENCE.

| the latter, and that there was no consideraResulting trusts are not within the statute tion passing from him to Daniel or from Danof frauds, and may be established by parol evi-iel to him for said conveyance; that the dence, where such evidence is not otherwise incompetent.

deed was made under the following circum[Ed. Note. For other cases, see Trusts, Cent. |

stances: Some time prior to its execution, Dig. $$ 93, 130, 131, 133.)

Daniel and one Williams were engaged in 4. TRUSTS 89(1)-RESULTING TRUST-EVI. the mercantile business in Packingtown, and DENCE.

were indebted to certain merchandise crediThe conveyance to the plaintiff in error in tors; that they were in failing circumstancthis case of the real estate involved herein

es, and sold out their merchandise and busiunder the circumstances alleged in his answer held to create a resulting trust, and held, fur

ness and prorated the proceeds to their ther, that the plaintiff in error took no benefi- creditors, leaving a deficiency; that therecial interest in said real estate.

after Daniel came to the plaintiff in error [Ed. Note.-For other cases, see Trusts, Cent. Boyd, and stated that he intended to leave Dig. § 134.)

Oklahoma City, and asked permission to con5. MORTGAGES em 280(2) - ASSUMPTION IN vey the legal title to the real estate to plainCONVEYANCE-CONSIDERATION. A clause in a deed of conveyance of real es

tiff in error, subject to certain outstanding tate, providing that the grantee assumes the mortgages, and further requested that he payment of the mortgage indebtedness described (plaintiff in error) attempt to negotiate a therein, in order to be enforced against the sale of the equity and apply the proceeds grantee, must be supported by a consideration, and where the facts and circumstances sur

upon the amount remaining due to the merthe conveyance are such that a result-chandise creditors, and any amount remaining trust is thereby created, and the granteeing to be turned over to Daniel; that plaintakes no beneficial interest in the real estate conveyed, such conveyance is not a sufficient

| tiff in error, relying upon the understanding consideration to support the agreement to as with Daniel that said deed should be subject sume the payment of such mortgage indebted to the mortgages and not to contain any asness.

sumption thereof, did not read the deed, and [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 743.]

was ignorant of the assumption clause until

he was so informed by one of the mortgagees; Commissioners' Opinion, Division No. 1. that upon being so informed he immediately Error from District Court, Oklahoma Coun- repudiated said assumption of said mortty; Geo. W. Clark, Judge.

gages, explaining to the mortgagees that he Action by Charles Winte against A. W. was not the beneficial owner of said property Bord and T. M. Daniel and wife, in which and had never parted with or received any H. F. Vulbrock and another filed cross-peti- consideration for the deed; that he, plaintions against defendants. Judgment for l tiff in error, was trying to accommodate and

rou

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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lavor Daniel, and that the assumption clauses made was not served in time. While we are
was inserted fraudulently and without au- inclined to agree with the contention of de-
thority. Plaintiff in error further alleged fendants, yet we do not deem it necessary to
that at the time of the delivery of said deed determine that proposition, for the reason
he had not examined the property and had that the appeal was lodged in this court
never seen it since; that plaintiff in error within six months from the date the trial
was acting without any consideration or court sustained the objection to the introduc-
compensation, and that the deed was made to tion of evidence, and it is properly certified
nim merely as a matter of convenience and as a transcript by the clerk of the district
accommodation to Daniel. Plaintiff in error court. It has been held by this court that
further alleged that he never received any the record proper is made up of the petition,
beneficial use of said property; that if he the process, the return, pleadings subsequent
had received any rents or profits he would thereto, reports, verdicts, orders, and judg-
have held same for the benefit of Daniel and ments, and an error appearing upon the face
his merchandise creditors, and disclaimed thereof may be raised for the first time in
any interest in said real estate. Plaintiff in this court on a transcript thereof, accom-
error further alleged that at most the deed panied by a petition in error duly presenting
was intended only as security for the benefit the same. Tribal Development Co. v. White
of the merchandise creditors of the said Dan- Bros., 28 Okl. 525, 114 Pac. 736; Baker v.
iel, and that the parties in interest have not Hammett, 23 Okl. 480, 100 Pac. 1114. The
changed their position or been injured in any ruling of the trial court upon the objection
manner by such assumption in said deed. to the introduction of evidence was an order
Plaintiff in error prayed that the mortgagees of the court and a part of the record as much
take nothing as against him, that he be re- as if said order had been made upon a de-
leased and discharged from any personal lia- murrer to the answer, and is therefore prop-
bility by reason of the assumption clause in erly reviewable by this court upon a tran-
said deed, and that said deed be reformed script. The motion of defendants in error to
and said assumption clause contained there- dismiss should therefore be overruled.
in be decreed to be void. At the trial, after It seems from the record that the trial
the plaintiff below and the cross-petitioners court sustained the objection to the introduc-
had rested, the defendant Boyd offered evi- tion of evidence for the reason that the al-
dence in support of his answer, whereupon legation of fraud set up in the answer is
the plaintiff and cross-petitioners interposed merely a conclusion of law, and that no facts
an objection to the introduction of any evi- were set up therein showing fraud. If fraud
dence by the defendant Boyd because his were the only ground in the answer upon
answer failed to state facts constituting a which plaintiff in error sought to escape lia-
defense. This objection was by the trial bility upon the assumption of the notes and
court sustained, to which defendant Boyd mortgages contained in the deed from Daniel
excepted, and thereupon the court directed and wife to him, we would have no hesitancy
the jury to render a verdict in favor of the holding the judgment of the trial court cor-
plaintiff and cross-petitioners against him. rect. But it is contended by plaintiff in er-
Defendant Boyd thereafter moved for a new ror that the facts alleged in the answer
trial, which was overruled by the court more show that the assumption of the notes and
than 15 days after the rendition of judgment mortgages contained in the deed and upon
upon the verdict of the jury. Plaintiff then which the defendants in error relied for a
asked for and was granted an extension of recovery against him was without considera.
time in which to make and serve a case-made tion, in that he took the title to the real
for appeal to this court.

estate involved herein, not as the beneficial
[1] We are met at the threshold of this owner, but for the convenience of Daniel
cause by a motion of defendants in error to and in order to sell the same and apply the
dismiss the appeal for the reason that the proceeds to the satisfaction of Daniel's debts.
case-made was not served within the time It is first urged by plaintiff in error that the
allowed by the statute or any lawful exten- deed from Daniel to him constituted a mort.
sion thereof. It is contended by defendant gage. We are unable to agree with this con-
in error that, the judgment of the court being tention for the reason that the facts set up
rendered on sustaining an objection to the in the answer do not show that any defeas-
introduction of any evidence because the ance of said conveyance was in the contem-
answer failed to state facts constituting a plation of the parties, or that a redemption
defense, no motion for a new trial was nec- thereof by Daniel was ever contemplated.
essary, and, being unnecessary, the filing of (2-4) Plaintiff in error next contends that
a motion for a new trial did not operate to he held title to said real estate in trust, that
extend the time in which to make and serve Daniel was the beneficial owper, and that
a case-made for appeal, and, as the only er- plaintiff in error was the mere holder of the
rors assigned in the brief of plaintiff in er- naked legal title. The defendants in error
ror are based upon such ruling of the trial meet this contention by urging the statute
court, the motion for a new trial was wholly of frauds, which provides :
unnecessary to present the questions sought "No trust in relation to real property is valid,
to be reviewed here, and therefore the case-/ unless created or declared: First. By a written

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