damages for loss of time, the record showing that it was admitted solely for the purpose of fixing the time of the injury, the duration of the illness, and the extent of the suffering. It is next contended that the court erred in admitting the evidence on behalf of the plaintiff with reference to a fistula. Mrs. Wollard testified as follows: "Q. Mrs. Wollard, are you troubled with a fistula? A. Yes, sir. Q. When did you first have trouble with a fistula? A. That has hurt me ever since. Q. When did you first have trouble with the fistula? A. Well, I have been troubled with it ever since I was hurt; ever since the fall. Q. When, Mrs. Wollard, if at all, did you first commence to matter? A. Well, it was several weeks after I can't tell how long. Q. Was you ever troubled with it before you were injured? A. No, sir; I was not." It is insisted here that the action of the court was erroneous, for the reason that there was no competent evidence that the fistula was caused by the fall complained of in this action. There was evidence, however, that this plaintiff fell from the car, and that she had a bruise on the buttock about half the size of the hand. The plaintiff also testified that before the injury she was in good health, did all her own work, and had six boarders, and that the pain from the fistula commenced after the injury. Dr. Rice testified that he had made an examination at Mrs. Wollard's request; that she had a dis charge from a fistula; that a fistula is caused, among other things, by a fracture or disease of the lower end of the spinal column, bruises, syphilis, or tuberculosis, and that a bruise is one of the things that could cause a fistula; that she complained of pain at this point, and some weeks after he had dismissed the patient she began to have the discharge; that he made an examination at the time of the injury, and that she had no fistula at that time; and again he testified, "I saw the fistula exactly one year after the date of the injury." Plaintiff further testified that she had received no injuries except those she received in falling from the street car. After the admission of this evidence, the pleadings were amended in order to conform to the proof. We can see no merit in the contention that the admission of this evidence was incompetent. While it is insisted that the plaintiff was not qualified to testify as to whether or not the fistula was caused by the fall, as that could only be supplied by a physician, yet there was evidence, as we have heretofore quoted, of a physician, which, coupled with the evidence of the plaintiff, established sufficient facts from which a jury was authorized to draw the inference that the fistula was caused by the fall, and the cases of Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okl. 1, 134 Pac. 388, Ann. Cas. 1915D, 760, and St. L. & S. F. R. Co. v. Criner, 41 Okl. 256, 137 Pac. 705, which are relied on by the plaintiff in error, are not in point. But the case of Chicago, R. I. & G. Ry. Co. v. Bentley, 43 Okl. 469, 143 Pac. 179, is directly in point, and in consonance with the holding herein. [3] It is further contended that Instruction No. 1 was erroneous, for the reason that there was no evidence that plaintiff's injury was approximately caused by the rule of the company in allowing the conductor to signal the motorman without being upon the car, and hence there was a total failure of proof of the allegations that plaintiff's injury was due to the negligence of the defendant in The evidence shows establishing the rule. that this plaintiff approached the car from the west; that the door was open; that she took hold of the handhold and had placed her foot upon the step when the conductor, who was on the east side of the car and not in view of the steps upon which the plaintiff was standing, and through the previous instructions of the superintendent, signaled the car to start, and the motorman, obeying that signal, started the car, which threw the plaintiff to the street, causing the injury. We in issuing this order, and that the act of the think the defendant company was negligent employés in following the order was negmate cause of the injury to the plaintiff. ligence, and such negligence was the proxiHad the conductor waited until he had reached his proper position on the car before giving the signal, he would have known that the plaintiff was in imminent danger. [4] It is next urged that the court erred in instructing the jury: "It is the duty of a street railway company to use the highest degree of care and caution reasonably consistent with the practical operation of its road in securing the safety of its passengers while boarding one of its cars; but, on the other hand, it is the duty of a passenger undertaking to board one of the cars of such railway company for the purpose of being transported thereon from one place to another to use that ordinary degree of care and caution for her own safety, which an ordinarily careful and prudent person would exercise under similar circumstances." It is admitted that this instruction is correct as stating an abstract rule of law, but that it is insisted that it is incorrect because the word "passenger," as used in the instructions, was not defined by the court. No request was made by the defendant to have the word "passenger" defined. This court has held in the case of Moore v. O'Dell, 27 Okl. 194, 111 Pac. 308, that where plaintiff did not request an instruction as to what would constitute "notice," he cannot complain of the omission on writ of error. And again, in the case of Curtis & Gartside Co. v. Pribyl, 38 Okl. 511, 134 Pac. 71, 49 L. R. A. (N. S.) 471, this court held that the defendant in an action for damages for personal injuries could not complain on appeal that the court should have more specifically defined "proximate cause" where no request was made for such instruction. And in the case of St. Louis & S. F. R. Co. v. Crowell, 33 Okl. 773, 127 Pac. 1063, this court held, that where the instruction is correct so far as it goes, and it is urged by a party that under his theory of 15. FRAUDS, STATUTE OF 107-AGREEMENT the case additional instructions should have TO PAY ANOTHER'S DEBT-PAROL EVIDENCE. been given, a reversal will not be had unless a supplemental instruction is requested by such party embodying such theory. In the absence of a request to define the word "passenger," it is not error to fail to define such word. contracted in writing for the purchase of propWhere it appeared that one defendant had erty from the maker on the note sued on and as part of the purchase price had assumed payment of the note, the statute of frauds did not exclude parol evidence to show that he acted for himself and two others; the contract whereby payment was assumed being a contract to pay for the property in a particular way and not a contract to pay the debt of another. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 212, 213; Dec. Dig. 107.] [5] There are in all 21 assignments of error pertaining to the instructions of the court, the admission of evidence, and the pleadings. After an examination of the entire record, it is the opinion of this court that Department 2. Appeal from Circuit Court, the errors complained of have not resulted in Douglas County; J. W. Hamilton, Judge. a miscarriage of justice, nor do they constiAction by the Riddle State Bank, a cortute a substantial violation of a constitution-poration, against J. A. Link and others. al or statutory right of the defendant. Smith From judgment for plaintiff, defendants v. Star Merc. Co. (No. 5706) 153 Pac. 1188. Brice Wilson and another appeal. Affirmed. The cause should therefore be affirmed. PER CURIAM. Adopted in whole. (78 Or. 498) This is an action upon a promissory note. The complaint alleges in substance that on November 16, 1910, plaintiff at the special instance and request of defendants Ross and Dunbar loaned $2,200 to Ross for which RIDDLE STATE BANK v. LINK et al. these defendants then made, executed, and (Supreme Court of Oregon. Dec. 28, 1915.) delivered to plaintiff their promissory note which is set out in full. That thereafter the 1. EVIDENCE 418-WRITTEN INSTRUMENTS defendants Link, Wilson, and Hutchinson -PAROL EVIDENCE--ADMISSIBILITY. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1722, 1906-1911; Dec. Dig. 418.] 2. EVIDENCE DENCE. 353-DOCUMENTARY EVI The admission in evidence of such written contract signed by R. and L., as a contract between R. on the one hand and L. and two others on the other, was not error, where it was shown by parol that the contract was in fact the act of the two others as well as of L. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 1404-1428, 1430, 1431; Dec. Dig. 353.] Where, in an action on a note given by de-acting together, and with the intention of fendants R. and D., a contract binding defend- organizing a corporation to be known as the ant L. to pay the note as part of the price of Alder Creek Lumber Company, purchased a property purchased from R. was introduced in evidence, parol evidence was admissible to show certain sawmill, and other property to be that such contract was in fact the contract of used in connection therewith, from Ross L. and two other defendants; such evidence agreeing to pay therefor the sum of $5,500; having a tendency to explain the transaction that as a matter of convenience to the purrather than to contradict the writing. Ichasers the written agreement for the purchase from Ross was made in the name of Link only, but was, in fact, the agreement of all three with the intent that the property should be by him transferred to the corporation as soon as it should be organized; that such corporation was never organized, but that Link, Wilson, and Hutchinson thereafter operated the mill under the name of Alder Creek Lumber Company as copartners; that according to the agreement of purchase they were to pay the price as follows: $1,000 in cash on or before August 8, 1912; $2,300 to be paid monthly in cash as certain timber should be sawed and cut; that any portion of the $2,300 remaining unpaid after July 18, 1912, should bear interest at the rate of 8 per cent.; that they agreed to pay the remainder of the purchase price by assuming and paying to plaintiff the note above referred to, entirely relieving defendant Ross thereof, on or before November 16, 1913; that thereafter at the special instance and request of Link, Wilson, and Hutchinson plaintiff extended the time of payment of the note from November 16, 1911, to November 16, 1912; and that Wilson and Hutchinson especially promised and agreed to pay the same at such later date according to the terms thereof; that the defendants last namcd made a payment of interest amounting to $110 for the half year ending November 16, 3. CONTRACTS 187-ASSUMING PAYMENTRIGHT TO ENFORCE. Where it appeared that defendants L, H., and W. had assumed payment of the note sued on, as part of the price of sawmill property and standing timber bought from the maker of the note under a contract of conditional sale signed as a matter of convenience by L. only, the fact that there had been no delivery of possession by the seller and that a partnership in the strict sense did not exist between the buyers, did not release H. and W. from liability on the note, where it appeared that the three buyers were jointly interested in the purchase and did not appear that possession would not be delivered on payment of the full purchase price. [Ed. Note. For other cases, see Contracts, Cent. Dig. 88 798-807; Dec. Dig. 187.] 4. APPEAL AND Error 995-QUESTION FOR JURY-WEIGHT OF EVIDENCE. The credibility and effect of competent evidence is for the jury, not for the appellate court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3907; Dec. Dig. 995.] 1912. The defendants Wilson and Hutchin- to do until such time as the final installment son answered separately, denying the allegations of the complaint. The other defendants made default. A trial was had resulting in a verdict and judgment for plaintiff, from which the answering defendants appeal. B. J. Skulason, of Portland (Clark, Skulason & Clark, of Portland, on the brief), for appellants. O. P. Coshow and A. N. Orcutt, both of Roseburg, for respondent. BENSON, J. (after stating the facts as above). The first three assignments of error are so intimately connected that we shall consider them together. They are to the effect that the court erred in admitting parol evidence of the alleged promise of defendants to pay the note since it was a promise to answer for the debt of another and therefore in violation of the statute of frauds; that the court erred in admitting in evidence the written agreement of purchase and sale between Ross and Link as the agreement of Wilson and Hutchinson because it was an attempt to vary by parol the terms of a written instrument; that the court erred in denying defendants' motion for a nonsuit upon the ground that there was no competent evidence to show any agreement upon their part to pay the debt of Ross and Dunbar; that the evidence disclosed affirmatively that the title of property never passed to Wilson and Hutchinson; that there was no evidence to show that Link had any authority to bind them in the manner of assuming payment of the note at the bank; and that there was no evidence of any partnership existing between Link and the answering defendants. [1, 2] The parol evidence tending to show that the written contract executed by Link was in fact the contract of all three, was properly admitted. In the case of Flegel v. Dowling, 54 Or. 40, 102 Pac. 178, 135 Am. St. Rep. 812, 19 Ann. Cas. 1159, it was held that the statute of frauds does not exclude parol evidence to show that a written contract made between A., the seller, and B., the buyer, was on B.'s part made by him only as agent for C. It is said that such evidence does not contradict the writing, but explains the transaction. As to the admissibility of the written contract signed by Ross and Link, it is enough to say that if the parol testimony above referred to satisfied the jury that the contract was, in fact, the act of Hutchinson and Wilson, then it was properly admitted. [3-5] We come next to a consideration of the written document itself. It is a contract for the purchase of the sawmill property and certain standing timber, and is, in form, written evidence of a conditional sale. Under such an agreement the delivery of possession by the seller was all that remained for him of the purchase price should be paid, at which time he would be required to deliver written evidence of title in the purchaser, and nothing remained for the buyer to perform other than the payment of the purchase price. There is therefore no merit in the contention that there was no evidence of a purchase. It is immaterial as to whether there was evidence of a partnership in the strict sense of the term for there is evidence tending to show that Link, Hutchinson, and Wilson were jointly interested in the purchase. The credibility and effect of such evidence was for the jury to determine. If the promise by Hutchinson and Wilson to pay the note was, as alleged in the complaint, a part of the purchase price, it would be susceptible of proof by parol evidence. As is said in Feldman v. McGuire, 34 Or. 309, 55 Pac. 872: "It was not a mere promise by the defendant to be responsible for the debts of Corlett to those parties, and to pay those debts, but a promise by him to pay his own debt in that particular way." The instruction of which complaint is made does not undertake to determine any question of fact, but is a proper statement of the law to the effect that taking possession of the personal property under a written contract, like the one in evidence, is sufficient to make the transaction a sale. Finding no error in the record, the judgment is affirmed. PER CURIAM. A petition for a rehearing was filed in this case, and time was given to file a more extended supplemental petition, both of which have now been considered. In these it is shown that the lawyers for the bank acted in good faith in raising debatable questions as to the validity of the bonds. We gladly chronicle that fact. This showing was made by depositions taken for use in the trial below; but, since the district court struck out that defense, the depositions were not offered in evidence. Aside from recognizing the good faith of the bank's attorneys, however, we do not wish to modify our opinion of the law as stated in the original decision, nor do we find in the petition for a rehearing any occasion to amplify what was there decided. (96 Kan. 820) required, according to their capacity. Sec DRESSER et al. v. CITY OF WICHITA et al. tion 4, however, requires that before the (No. 20410.) (Supreme Court of Kansas. Dec. 11, 1915. Rehearing Denied Jan. 17, 1916.) (Syllabus by the Court.) 1. LICENSES 7-USE OF STREETS ORDINANCE REGULATING MOTOR VEHICLES-VA LIDITY. The provision of the ordinance in question, requiring those operating any self-propelled vehicles carrying passengers for hire to pay additional licenses of $300 to $400 before being permitted to solicit or receive passengers on the paved portions of certain designated streets, although practically prohibitive as to such designated places, is a valid exercise of municipal control. [Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. 7.] 2. LICENSES 7-MOTOR VEHICLES-VALIDITY OF ORDINANCE. That the effect of such ordinance, if enforc ed, would involve a benefit to the street railway company is no reason why the city may not prescribe such regulation. [Ed. Note. For other cases, see Licenses, Cent. Dig. 88 7-15, 19; Dec. Dig. 7.] owners of such vehicles shall be permitted to solicit or receive passengers on or along the paved portions of certain designated streets, they shall pay an additional license of $300 to $400, according to the capacity of the vehicle. It is asserted, and we are convinced, that as to these specifically designated places the requirement is, and doubtless was, intended to be practically prohibitive. We find no other feature of the ordinance about which serious question could arise as to reasonableness, and it is convincingly apparent that, regardless of this requirement of section 4, the ordinance would have been enacted and would be valid. So the validity of this one provision is the sole question for determination. [1-4] It is not only suggested, and to some extent proved, as shown by the record, but it is well known, that the street car system in the city of Wichita is one long established; that the company is required to pay taxes, to keep up and maintain its tracks, and to sub 3. LICENSES 7-MOTOR VEHICLES-VALIDI-mit to such reasonable regulations as may TY OF ORDINANCE. Before the courts can interfere with the exercise of legislative power granted to the city to license and regulate such conveyances, it must appear that the attempted exercise of such power is flagrantly unjust, unreasonable, or oppressive. [Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. 7.] Johnston, C. J., and Porter, J., dissenting. (Additional Syllabus by Editorial Staff.) 4. CARRIERS —4—JITNEYS—“Common CarrI ERS. Operators of jitneys and similar vehicles which are run for hire on the public streets are "common carriers." [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1, 462-478; Dec. Dig. 4. For other definitions, see Words and Phrases, First and Second Series, Common Carriers.] Appeal from District Court, Sedgwick County. Action by Paul A. Dresser and others against the City of Wichita and others. From a judgment for defendants, plaintiffs appeal. Affirmed. Stanley, Stanley & Hegler, of Wichita, for appellants. James A. Conly and Kos Harris, both of Wichita, and Ferry, Doran & Dean, of Topeka, for appellees. WEST, J. This suit was brought to enjoin the enforcement of an ordinance enacted by the city of Wichita, prescribing certain regulations and requiring certain licenses from persons operating jitneys and other motor vehicles. The ordinance is attacked as void because prohibitive and unreasonable. be prescribed for its operation. Its maintenance and continuance involve, not only the investment and profit or loss upon a large sum of money, but to a great extent the convenience and necessity of the city and its inhabitants. Jitneys and similar vehicles run, not upon tracks laid at their owners' expense, but upon the public streets, with no burden of providing depots or waiting stations, or outlay, except the mere cost of vehicles and their operation. No doubt persons thus operating these conveyances for hire must be classed and are common carriers. Being such, they are, of legal necessity, subject to regulation and control as are other common carriers of passengers for hire. The presumption of good intention must be accorded the city in passing the ordinance. The same rules of construction apply as to a statute, and, unless clearly void, the enactment must be upheld. Swift v. City of Topeka, 43 Kan. 671, 23 Pac. 1075, 8 L. R. A. 772; Denning v. Yount, 9 Kan. App. 708, 59 Pac. 1092. That the effect of section 4 is incidentally or necessarily to benefit the street railway company is not the last word to be said. It is of interest quite vital to the municipality that a street car system, not only exist there, but that it be able to subsist and furnish proper and needed service. It is not a misuse of power so to legislate that this result can be accomplished merely because it involves an advantage to the utility in question as well as to the municipality. There is no attempt to exclude from all Without going into unnecessary detail it is the streets. On the contrary, all streets sufficient to say that numerous regulations and parts thereof except those thus specially are laid down for the control of the vehicles reserved are expressly permitted to be trav in question, and a license of $25 to $35 isersed at will. The Constitution vests in the Legislature Legislature; further, that the act does not authority to make provision by general prohibit persons from engaging in the banklaw for the organization of cities, towns, and ing business, but from needlessly duplicating villages. Article 12, § 5. This has been held an established business, regardless of the to add nothing to the general grant of legis- public necessity. The same doctrine applies lative power expressed in section 1 of arti- here. Modern requirements for municipal cle 2. Wulf v. Kansas City, 77 Kan. 358, 94 transportation render it essential that the Pac. 207. The Legislature may rightfully power to regulate by the governing body be prescribe the powers of a city, "subject only broad. In Telephone Co. v. Telephone Asto constitutional restrictions." Roby v. sociation, 94 Kan. 159, 165, 146 Pac. 324, inDrainage District, 77 Kan. 754, 759, 95 Pac. volving the establishment of a competitive 399. It can act directly or through some telephone service in a field already occupied, other body. State v. Railway Co., 81 Kan. it was suggested in the opinion that a mere 430, 105 Pac. 704; State ex rel. v. City of rival can have no such interest as will perHutchinson, 93 Kan. 405, 410, 144 Pac. 241. mit it to maintain an action to prevent comIn pursuance of this power the Legislature | petition; that such matters are to be controlhas conferred on cities authority to do a variety of things. "To the led by those acting for the public, in that case the Utilities Commission, the statute having provided as a matter of public policy that a telephone company, unless a mutual one, will not be authorized to do busi do all other acts in relation to concerns of the city necessary to the exercise of its corporate or administrative powers." Gen. Stat. 1909, § 1214, subdiv. 4. ness until it has obtained a certificate or a To adopt all necessary measures for the license of authority "as a public convenience protection of the traveling public. Section and necessity within the community where 1254. To fix the rate of carriage of persons. it seeks to do business." Page 166 of 94 Section 1255. To vacate and close any street Kan., page 327 of 146 Pac. More closely or alley or portion thereof. Section 1286. To analogous, perhaps, is O'Neal v. Harrison, require the construction of viaducts or tun- 96 Kan. 339, 150 Pac. 551, to the effect that nels over and under streets or tracks. Sec-under a statute giving power to make regtion 1289. To levy and collect a license tax ulations to secure the general health, to preupon and regulate all occupations conducted vent and remove nuisances, and to compel in the city, "including hackney and regulate the removal of garbage beyond or livery carriages and all wagons the corporate limits, a city may grant an exand other vehicles transporting * clusive right to the highest bidder to remove passengers for pay." Section 998. To issue all the garbage. It was vigorously contendbonds for the purpose of purchasing, con- ed that citizens have a natural or inherent structing, or extending utilities, including a right to remove the garbage from their own street railway. Laws 1913, c. 1375. To premises if they so desire, and that discrimconstruct viaducts and assess the cost to a ination and favoritism were not in contemstreet railway company. Laws 1913, c. 106. plation when the power referred to was vestTo acquire title by purchase, gift, or con- ed in the municipality. But the court dedemnation of lands for public feed lots, and clared that: to have supervision and control thereover. Laws 1915, c. 127. * "The decided weight of authority supports the right of a municipality either itself to take over the conduct of a business the manner of operating which may affect the public welfare, or to put it entirely in the hands of a single individual or company.' Page 340 of 96 Kan., page 551 of 150 Pac. It was also said that while monopolies are against public policy, this is a rule of the common law not binding upon the Legisla ture. In Kansas City v. Overton, 68 Kan. 560, 75 Pac. 549, an ordinance was upheld requiring hucksters or hawkers to pay a license of $35 a month and a helper or assistant to pay a license of $15, and exempting from its operation those who personally sold the produce of their own or leased lands. In Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, 37 L. R. A. (N. S.) 877, Ann. Cas. 1913A, 254, Underlying all this authority is the subupholding the validity of the statute authorizing the charter board to refuse a bank stratum of reasonableness, for arbitrary, uncharter where it deems that no public neces- reasonable, or capricious enactments are not sity therefor exists, it was pointed out that a use, but an abuse, of legislative power. the alleged common-law right to engage in Nevertheless, those who pass ordinances for the banking business must be governed by a city, like those who enact statutes for a the wants and conditions of the people, and state, are primarily the judges of what reathat it is one of the functions of the Legis-sonable requirements are, and it is not for lature to provide such new rules subversive the courts to interfere unless and until it of the common law as it may deem proper appears beyond question that the thing done for the welfare of society in the changing conditions incident to progress. It was said that to decide the act in question void would be merely to substitute the court's opinion for that of the deliberate judgment of the was not a use, but a misuse, of power. "Before, however, courts will interfere and declare a license tax to be unjust or unreasonable, a flagrant case of excessive and oppressive abuse of power by the city authorities in the levying of the license tax must be established." City of |