that, if J. W. Davis was properly appointed special administrator of the estate of J. L. Davis, it was necessary that he should amend the pleadings by alleging those facts. (3) Error of the court in refusing to give certain instructions requested by the defendant. (4) That the damages awarded are ex

cessive.

Section 5231, Mansfield's Digest of the Laws of Arkansas (Ind. T. Ann. St. 1899, § 3436), in force in the Indian Territory prior to statehood, provides that: "In all cases where suits may be instituted, and either plaintiff or defendant may die pending the same, it shall be lawful for the court before which such suit or suits may be pending, on the motion of any party interested, to appoint a special administrator, in whose name the cause shall be revived, and said suit or suits shall progress, in all respects, in his name with like effect as if the plaintiff or defendant (as the case may be) had remained in full life."

J. L. Davis, plaintiff, and asking that he | introduction of evidence under the complaint be appointed special administrator without should have been sustained, for the reason bond to prosecute said suit. The motion showed the movant to be the son and heir at law of the deceased; that the decedent died on the 8th day of January, 1907, and that there had been no statutory letters of administration issued to any one on his estate. The prayer was to the effect that said movant be appointed special administrator for the purpose of prosecuting said cause and be permitted to proceed with and prosecute the same as plaintiff; that his name be substituted for the name of his father, and that said cause be revived in his name, and that it proceed to trial as though the former plaintiff was yet living, and that judgment be rendered in his favor as special administrator. The foregoing motion was by the court allowed. On the same day the defendant filed its motion to quash the return of the summons served upon it, upon the ground that a true copy of the summons was not delivered to the defendant or any agent or representative thereof. Upon the hearing of said motion on the 5th day of February, 1907, the same was sustained. Thereafter, by leave of court, the petition in said cause was amended by interlineation, and thereafter on the 3d day of December, 1908, the defendant filed its amended answer to the amended complaint of said plaintiff, wherein (1) it denies that J. W. Davis was the lawful administrator of J. L. Davis, and states that he was not appointed as provided by law to entitle him to maintain this suit; (2) it alleges that if said J. L. Davis was in fact injured by the wires as averred in his complaint, the same was not due to any fault or negligence of the defendant, but the same was due to a charge of electricity transmitted from a wire of the Muskogee Light & Power Company, being the Light & Power Company referred to in plaintiff's complaint; (3) that if said J. L. Davis, deceased, was in fact injured by the wire, as alleged in his complaint, the same was due to the contributory negligence of the plaintiff. Thereafter, on the 4th day of December, 1908, said cause came regularly on for trial, plaintiff appearing in person and by his attorney, and defendant appear'ing by its attorney, whereupon trial was had before a jury, which returned a verdict in favor of the plaintiff, upon which judgment was duly entered. To reverse that judgment this proceeding in error was commenced.

As we gather the contentions of counsel for plaintiff in error from their brief, they may be stated as follows: (1) There is nothing in the record to show that any steps whatever were taken to revive this action below, except the motion filed suggesting the death of J. L. Davis, and such action did not constitute a revivor under the laws in force in the Indian Territory at the time the cause of action accrued. (2) The objection to the 116 P.-28

And section 5247 (section 3452) provides: "An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made, except that, where the defendant shall also have died or his powers have ceased in the meantime, the order of revivor on both sides may be made in the period limited in the last section."

[1] Counsel for plaintiff in error contend that the words found in section 5231, supra, "the cause shall be revived," mean that the revivor must be in conformity with the general statutory requirement on that subject in force in the Indian Territory at the time the motion to revive was sustained. We be lieve that the record shows a substantial compliance with the statute, but however that may be the general rule is that, "Appearance without questioning the mode of revival of the action waives any objections to the mode of revival." 1 Cyc. (note) 103. Numerous cases are cited in support of the text, among them Reed v. Sexton's Adm'rs, 20 Kan. 195, which state, the plaintiff in error says, has a statute on the subject of revivor almost identical with the Arkansas statute. In Abner B. Brown, Trustee, etc., v. Roscoe S. Hillman, 116 Pac. 775, decided at this term of court, it was held that a general appearance waived the lack of formal revival and the court quoted approvingly an excerpt from the opinion of Mr. Chief Justice Doster in the case of Curry v. Railway Company, 58 Kan. 6, 48 Pac. 579, as follows: "Such an objection is like any other objection to jurisdiction. It must be made before appearance to the merits; for such appearance is a submission to jurisdiction. Instead of demurring to the first

Of the numerous errors assigned, there are but two argued by counsel in their brief: (1) That the court erred in overruling de

(29 Okl. 106)

FARMERS' & MERCHANTS' INS. CO. v.
CUFF.

fendant's motion to confirm the report of (Supreme Court of Oklahoma. May 9, 1911.) the master in chancery; and (2) that there was not sufficient evidence adduced at the

trial to warrant the court in finding against 1. the defendant on the question of fraud.

[1] We do not believe the first question is reviewable. The cause was referred to the master prior to statehood, and his report returned subsequent thereto, but no decree was entered thereon. Subsequent to statehood the court heard the case as though no report had been filed, and entered its decree. The report cited: "That by agreement of parties at one time made and was at the time the case was submitted to him he was to consider said cause without the intervention of any report of the master, and the court heard the case as though no master's report had ever been made or filed."

We think this agreement of counsel entirely eliminates from consideration by this court the first question raised.

[2] On the second point we have examined the evidence with care, and believe that it is sufficient to support the decree of chancellor. It seems that a lesser degree of proof is required to establish fraud in equity than in law. Moore v. Adams et al., 26 Okl. 48, 108 Pac. 392; Myrick v. Jacks, 33 Ark. 425; Lester v. Mahan, 25 Ala. 445, 60 Am. Dec. 530; Arnold v. Grimes, 2 G. Greene (Iowa) 77; Orton et al. v. Madden et al., 75 Ga. 83. The Arkansas case above cited held that fraud must be shown and proved at law. In equity it suffices to show facts and circumstances from which it may be presumed. This case was decided by the Supreme Court of that state at its May term, 1877. The same Code of Procedure relative to law and procedure was then in force as was afterwards extended to Indian Territory by act of Congress. It has been held by this court that prior construction of such procedure by the Supreme Court of Arkansas was also brought over. Nat. Live Stock Comm. Co. et al. v. Taliaferro et al., 20 Okl. 177, 93 Pac. 983; C., O. & G. Ry. Co. v. Burgess, 21 Okl. 653, 97 Pac. 271. We think that ample facts and circumstances were shown below from which fraud might be presumed. In Armstrong, etc., v. Lackman et al., 84 Va. 726, 6 S. E. 129, this language is used: "It is not safe to undertake to define what degree or kind of proof will justify a court of equity in granting relief against fraud, for the proof must satisfy the conscience of the court, and no man would deem it prudent to attempt to define the extent of that indispensable qualification in a judge or a court."

We are satisfied that the judgment of the court below ought to be affirmed. It is so ordered. All the Justices concur.

(Syllabus by the Court.)

APPEAL AND Error (§ 957*)-REVIEW-DIS

CRETION OF COURT.

A case having been regularly assigned for trial and being duly reached on call, the defendant failing to appear either by counsel or otherwise, the plaintiff appearing, the cause was regularly submitted and judgment rendered thereon. Within due time defendant's counsel filed a motion to set aside the judgment, setting up facts that in law would excuse him for failboth by oral evidence and affidavits, on the hearing to appear. These facts were controverted, ing of said motion. The court found against the defendant and overruled said motion. Held, that the court having found against said defendmotion, his action will not be disturbed on reant and exercising his discretion denied said view here, unless it appears that he abused such discretion.

[Ed. Note.-For other cases, see Appeal and

Error, Cent. Dig. § 3823; Dec. Dig. § 957.*]
2. INSURANCE (§ 421*)-CONSTRUCTION OF POL-

ICY-DAMAGES.

Damages resulting from efforts made in good faith to save property from a fire, by breakage, removal, water, or from loss by theft consequent thereto, are within the loss covered by a policy against damage by fire.

(a) The loss by theft must be one of the consequences of the fire.

(b) If the loss by theft be expressly excluded by a stipulation in the policy, there can be no recovery for such item.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1142, 1143; Dec. Dig. § 421.*] 3. APPEAL AND ERROR (§ 1151*)-MODIFICATION OF JUDGMENT.

Where it appears from the pleadings and the record that an item has been included in the judgment, which is separable, the cause will not be remanded, but as modified judgment will be rendered here.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4506; Dec. Dig. § 1151.*]

4. JURY (§ 28*)-WAIVER.

A certain cause having been assigned and regularly reached on call for trial, the plaintiff appearing, but the defendant failing to appear, constituted a waiver of trial by jury by said defendant; and, the plaintiff having waived of record a jury trial, said cause was properly triable by the court.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 176-196; Dec. Dig. § 28.*]

Error from District Court, Pottawatomie County; W. N. Maben, Judge.

Action by J. J. Cuff against the Farmers' & Merchants' Insurance Company. Judgment for plaintiff, and defendant brings erModified and affirmed.

ror.

C. W. Stringer, for plaintiff in error. P. O. Cassidy and W. M. Engart, for defendant in error.

WILLIAMS, J. This action was commenced by the defendant in error, as plaintiff, against the plaintiff in error, as defendant, in the district court of Pottawatomie

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

comply with the terms of said provision. Defendant further denied each and every allegation of plaintiff's petition.

Plaintiff replied by way of general denial. The case was regularly assigned on the cal

county, territory of Oklahoma, on the 5th, to the amount of loss and damage under day of June, 1907, to recover the sum of said policy, but that the plaintiff failed to $1,000 on a certain fire insurance policy is sued to plaintiff by defendant on his stock of hats, caps, shoes, clothing, and gent's furnishing goods. Said damage is alleged to have been caused on the 18th day of December, 1906, on account of a fire originat-endar for trial. When said cause was reaching in a building about a half a block from the building in which plaintiff's goods were located, and that the damage or loss resulted from the removal of said goods from said building under reasonable apprehension of damage or loss from said fire.

The defendant answered on the 18th day of June, 1907, admitting that the plaintiff owned a stock of goods as alleged in said petition, and the issuance of said policy in said amount, and that other companies, to wit, the Columbia Fire Insurance Company and the National Fire Insurance Company, each carried thereon a policy in the sum of $1,000, and the German-American Insurance Company of New York a policy of $250. It further admitted that plaintiff moved a portion of said goods from said building, but specifically denied that said goods were covered by said policy of insurance, or in any manner or any way were injured by said fire, or that, in order to save said stock of goods from said fire, it was necessary to move same from said building, and denied that in removing same they were damaged as alleged, or in any sum, and further denied that plaintiff had performed on his part all the conditions contained in said policy.

ed, the plaintiff appeared in person and by counsel, but the defendant failed to appear in any capacity whatever. A jury was waived by the plaintiff and the cause tried before the court, who rendered judgment in favor of the plaintiff in the sum of $880.

In due time defendant filed a motion to set aside the judgment, and for a new trial, on the following grounds, to wit: (1) The court erred in trying said cause and rendering judgment in the absence of counsel for defendant. (2) The court erred in the assessment of the amount of the recovery. (3) Insufficient evidence to support the judgment. (4) Defendant had a valid and legal and equitable defense, on the ground that the damages or loss had never been ascertained by appraisement, as provided by said policy. (5) The court erred in trying a jury case without the intervention of a jury, the same not having been waived by the defendant.

[1] As to the question of the trial of the case in the absence of counsel for the defendant, affidavits and oral evidence were heard pro and con by the trial court. The same were conflicting, and, that issue of fact having been determined against the defendant (plaintiff in error) by the trial court, the same will not be disturbed on review, unless his discretion relative thereto has been abused. Winsor v. Goddard et al., 15 Kan. (2d Ed. 97) 118; Mehnert et al. v. Thieme, Adm'x, 15 Kan. 368; Garner v. Erlanger, 86 Cal. 60, 24 Pac. 805; Williamson v. Cummings Rock Drill Co., 95 Cal. 652, 30 Pac. 762.

Defendant further alleged that it is provided in said policy that the insurers should not be liable for any loss, directly or indirectly, by theft, and that, after the said plaintiff had removed a portion of said stock of goods from the building in which the same were insured, a portion of said stock of goods, the amount of which was unknown to the defendant, was stolen by As to the contention of the defendant parties unknown to the defendant. It ap- (plaintiff in error) that the arbitration propears from the pleadings that the goods stol- vision contained in the policy was a condien amounted to $318.99. It is further plead- tion precedent to a right to bring action ed that said policy stipulates as follows: thereon, that was an issue presented by the "In the event of a disagreement as to the pleadings, and the finding that "the defendamount of loss, the same shall, as above pro- ant is liable to and indebted to the plaintiff vided, be ascertained by two competent and on the said contract of insurance in the disinterested appraisers, the insured and sum of $880," together with the other spe this company each selecting one, and the cial findings in the journal entry, concludes two so chosen shall first select a competent, that issue against the defendant (plaintiff in and disinterested umpire; the appraisers to- error). No error relative thereto appears of gether shall then estimate and appraise the record. The defendant having failed to appear loss, stating separately sound value and or make any appearance by attorney or otherdamage, and failing to agree, shall submit wise, at the time of the trial, and the questheir differences to the umpire, and the tion as to whether the judgment should be award in writing of any two shall determine set aside, and permit the defendant to retry the amount of the loss; the parties thereto the issue as to whether the provision as to shall pay the appraiser respectively select- arbitration as a condition precedent precluded by them, and shall bear equally the ex-ed a recovery on the part of the plaintiff, pense of the appraiser and umpire." The defendant averred that there was a disagree

having been determined against the defendant by the trial court in denying the motion

Merchants' Mut. Ins. Co., 17 La. Ann. 131;
Liverpool L. & G. ins. Co. v. Creighton, 51
Ga. 95.

aside on review by this court, unless such discretion has been abused. It does not so appear. However, the defendant denied the liability in this case, and there is abundant Deducting the sum of $318.99, the amount authority to the effect that, where a provi- appearing to be the value of the goods lost sion for arbitration is inserted in the policy or stolen, from the sum of $2,161.44, the tofor the purpose of having the amount of the tal damages, leaves $1,842.45. There being loss adjusted, if the company denies liabil- $3,250 insurance on said stock of goods, the ity in the premises, there is nothing to arbi- amount of defendant's liability would be its trate. 2 Beach on Law of Ins. § 1244 (1895); ¦ pro rata part of said loss, which is $813.05. Union Ins. Co. of Cal. v. Barwick, 36 Neb. As to the waiving of the jury by the plain223, 54 N. W. 519; German-American Ins. tiff, the defendant having failed to appear, Co. v. Etherton, 25 Neb. 505, 41 N. W. 406; that was permissible. Section 20 of article Phoenix Ins. Co. v. Badger, 53 Wis. 283, 107 of the Constitution of this state provides N. W. 504; Lasher et al. v. Northwestern that: "In all issues of fact joined in any Nat. Ins. Co., 18 Hun (N. Y.) 98; Mentz v. Armenia Fire Ins. Co., 79 Pa. 478, 21 Am. Rep. 80; Capitol Ins. Co. v. Wallace, 48 Kan. 400, 29 Pac. 755; Wallace v. German-American Ins. Co. (C. C.) 4 McCrary, 123, 41 Fed. 742.

court, all parties may waive the right to have the same determined by jury, in which case the finding of the judge upon the facts shaЛ have the force and effect of a verdict by jury."

[4] Section 5808, Compiled Laws of Okla. Section 3199, Wilson's Revised & Annotat- homa, 1909, provides that the trial by jury ed Statutes, 1903, provides: "All insurance may be waived by the consent of the parties companies issuing policies in this territory appearing, when the other party fails to apshall be required to pay in case of total pear at the trial by himself or attorney; by loss, the full amount, and in case of partial written consent, in person or by attorney, loss, shall be required to pay the amount of filed with the clerk; by oral consent, in open loss so sustained, for which the property is court, entered on the journal. This statute insured: Provided, however, that no policy was in force in the territory of Oklahoma shall be issued which shall contain a sum (section 4476, Wilson's Rev. & Ann. Stat. greater than seventy-five per cent. of the 1903; section 4179, Stat. O. T. 1893), and value of the property insured." was brought over by virtue of Schedule 2 of the Constitution, if it was not repugnant to any provision thereof. Said provision seems to be supplementary to said section 20 of article 7, supra, as to its enforcement, and not to be repugnant thereto. State ex rel. Armfield v. Brown et al., 70 N. C. 27; Hahn v. Brinson, 133 N. O. 7, 45 S. E. 359; Farmers' National Bank of Tecumseh v. McCall, 25 Okl. 600, 106 Pac. 866, 26 L. R. A. (N. S.) 217. We conclude that after the case was regularly reached for trial, the defendant having failed to appear, it was permissible for the plaintiff to waive a trial by jury and submit all issues to the court for determination.

This statute was in force in the territory of Oklahoma at the time of the issuance of the policy herein sued on, and also at the time it is alleged that the loss occurred, and was extended in force in the state by virtue of section 2 of the schedule to the Constitution. However, it seems to have been repealed by the insurance act of March 25, 1909 (Sess. Laws 1909, c. 21, art. 2). The rights of the parties under such policy are to be determined as the law existed at the time the right accrued.

[3] The judgment of the lower court will be so modified as to reduce the amount thereof from $880 to $813.05. In all other respects, it is affirmed. Let the costs be divided between the parties hereto. Justices concur.

All the

(29 Okl. 113.

[2] Damages resulting from efforts made in good faith to save property from a fire, by water, or breakage, or removal, or loss by theft consequent thereto, are within the loss covered by the policy against damage by fire. Talamon V. Home & Citizens' Mut. Ins. Co., 16 La. Ann. 426; White v. Republic Fire Ins. Co., 57 Me. 91, 2 Am. Rep. 22: Witherell v. Maine Ins. Co., 49 Me. 200; Lewis v. Springfield Fire & Marine Ins. Co., 10 Gray (Mass.) 159; Whitehurst v. Fayeteville Mutual Ins. Co., 51 N. C. 352; Stanley ▼. Western Ins. Co., 3 L. R. (Exch. Cases) 71; Thompson v. Insurance Co., 6 U. C. (Q. B.) 319. The loss by theft must be one of the consequences of the fire. Newmark V. L. L. & L. Fire & Life Ins. Co., 30 Mo. 160, 77 Am. Dec. 608. But if loss by theft be expressly excluded, there can be no recovery, even though by the terms of the policy the company is not to be liable at all, unless the insured used all due diligence in the removal and preservation of the property. Webb v. Action by J. J. Cuff against the NationProtection Ins. Co., 14 Mo. 3; Fernandez v.al Life Insurance Company. Judgment for

NATIONAL LIFE INS. CO. v. CUFF.
(Supreme Court of Oklahoma. May 9, 1911.)
(Syllabus by the Court.)

INSURANCE POLICY.
Same as the syllabus in Farmers' & Mer-
chants' Insurance Company v. J. J. Cuff (No.
837) 116 Pac. 435, heretofore decided on this
date.

Error from District Court, Pottawatomie
County; W. N. Maben, Judge.