August Mr. Jensen came up to me, in Manistee, and made arrangements to furnish his son-in-law goods when he called for them. The object that Mr. Jensen wanted goods for his son-in-law was because he was a roving character, and he would see them paid for. I should deliver the goods to John Labonta, and he would see them paid. He stated the object in wanting the goods. His son-in-law was a sailor by profession, and he wanted to settle him down. He wanted his daughter to run the store, and his son-in-law to work around the mills, if the store didn't require his services. And I agreed to do so." the goods to H. & R. that they want, and charge directly to them, and every first of the month you bring in the bill, and I will pay it,' uncontrolled and unqualified by other circumstances, imports on its face an original, and not a collateral, promise, implying that the credit was to be given exclusively to the promisor, although the goods were to be delivered to H. & R., and is not therefore within the statute of frauds." In Cahill v. Bigelow, 18 Pick. (Mass.) 369, in an opinion by Chief Justice Shaw, as to the test whether the promise is collateral when it is made before the credit is given, it is said: "The test is this: When the promise is made before the credit is given, to decide whether one promising is an original debtor or a guarantor, namely, whether credit was given to the person receiving the goods. If it was, then such promisor is a guarantor only, undertaking to pay another's debt; if no credit was given to the person receiving the goods, then the promisor is himself debtor for goods sold to him and de In the opinion which was delivered by Mr. Justice Champlin, and concurred in by Cooley, C. J., and Campbell and Sherwood, JJ., it is said: "If this testimony by the plaintiff was found by the jury to be true, the agreement was not within the statute of frauds. The statute does not prevent a person from buying goods on his own credit, to be delivered to another, unless in writing. In such case the important question is, To whom was the credit given? And this ques-livered to another person, by his order; his tion the court fairly submitted to the jury. And the fact that the goods are charged on the books of the seller to the person to whom they were delivered is not conclusive that they were sold upon his credit." promise is not to pay the debt of another, and, a parol promise being made upon a consideration, is a good contract at common law and binds him, and is not within the statute of frauds." In Boykin & McRae v. Dohlonde & Co., 37 Ala. 577, it is said: "When, therefore, an action is brought against one, charging him with the value of the goods delivered to another, and on his promise to pay, and it is set up in defense, that the promise is to pay the debt of another, and was not in writing, the decisive question is, To whom was the credit given? If the credit was given solely to the defendant-that is, if the goods were really sold to him, though delivered to another-the statute is then out of the case. But, if the whole credit was not given to the defendant-that is to say, if any credit at all was given to the party re In Anson on Contracts (Callahan & Co., 1887), at page 74, it is said: "There must be a liability, actual or prospective, of a third party for whom the promisor undertakes to answer If the promisor makes himself primarily liable, the promise is not within the statute, and need not be in writing. If two come to a shop and one buys, and the other, to gain him credit, promises the seller, 'If he does not pay you, I will,' this is a collateral undertaking and void, without writing, by the statute of frauds. But if he said, 'Let him have the goods; I will be your paymaster,' or 'I will see you paid,' this is an undertaking as for himself, and he shall be intended to be the very buyer, and the oth-ceiving the goods-the promise of the defender to act as but his servant." In Reed v. Holcomb, 31 Conn. 360, where the plaintiff indorsed a note of the third party at the request of the defendant, and upon his honor promises to see him paid and to save him harmless, if it was not paid by the makers, it was held that the statute of frauds would not apply to the case. In Smith v. Delaney et al., 64 Conn. 264, 29 Atl. 496, 42 Am. St. Rep. 181, it was held: "A special promise made by one person to another that he will see him 'all right,' if he will sign the bond of a third person, in order to enable the latter to obtain a license to sell intoxicating liquors, and when the promisor gives as a reason for not signing the bond himself that he intends to go into the liquor business with such third person, is not within the statute of frauds." In Maurin v. Fogelberg, 37 Minn. 23, 32 N. W. 858, 5 Am. St. Rep. 814, it was held "Verbal directions as follows: 'You give all ant is collateral, and within the statute. For in that case the plaintiff would have a remedy against the party receiving the goods; and all the cases show that it does not matter upon which of the two parties the plaintiff principally depends for payment, so long as the persons for whose use the goods are furnished is at all liable to him.. The question in this case is whether, under all the evidence, the credit was given solely to the defendant, or to the husband of the woman who was to be treated by plaintiff, with the understanding that, if the husband did not pay the charge, then the defendant would. If the former, the defendant is liable. If the latter, the statute of frauds intervenes and strikes down the contract so far as the defendant is concerned. However, the question might arise as to whether it was a joint liability; whether the husband of Mrs. B. and the defendant were jointly to be liable. That question is not raised, and it is not essential to pass on it, but see Wainwright v. Straw, 15 Vt. 215, 40 Am. Dec. 675; Ex parte Williams, 4 Yerg. (Tenn.) 579; 1 Smith's Lead. Cas. (5th Am. Ed.) 380, 382; Brown's Stat. of Frauds, §§ 197, 198, 2 Parsons, Contr. 301; Norris v. Spencer, 18 Me. 324. This cause is reversed and remanded, with instructions to grant a new trial and proceed in accordance with this opinion. All the Justices concur. (28 Okl. 613) WESTERN UNION TELEGRAPH CO. v. HOLLIS. toes elsewhere. Can't handle them to advantage to you afraid too long loading." Said telegram was delayed about 28 hours. The plaintiff as to measure of damages claims that had said telegram been delivered in due course of business that he could have shipped said car of potatoes to D. E. Ryan Company, at Minneapolis, Minn., and received $1.40 per bushel, being $199.50 more than he did receive for them in Kansas City, where they were permitted to go on account of the failure to receive said telegram in due time. [1] It is not disclosed from the record that any pleadings were filed in the justice court by the defendant, or that any request that (Supreme Court of Oklahoma. May 9, 1911.) such be done was made. Judgment was ren (Syllabus by the Court.) 1. JUSTICES OF THE PEACE (§§ 92, PLEADING. A defendant in a justice's court may, without filing pleadings, plead any defense he may have to plaintiff's claim; and on appeal to the county court, when no answer or pleadings was filed in the justice's court, the same rule applies. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 324, 325; Dec. Dig. §g 92, 174.*] 2. TELEGRAPHS AND TELEPHONES (§ 54*) CONTRACT FOR TRANSMISSION-CLAIMS FOR BREACH-PRESENTATION-TIME — VALIDITY OF LIMITATION. Under the laws existing in the Indian Territory, a stipulation between a telegraph company and the sendee of a message that any claim arising out of a breach of said contract for damages or penalty must be presented within 60 days from the date of the filing of said message may be valid. [Ed. Note. For other cases, see Telegraphs and Telephones, Dec. Dig. § 54.*] 3. JUSTICES OF THE PEACE (§ 164*)-APPEAL RECORD-CORRECTION. dered for the plaintiff in the sum of $102, from which an appeal was prosecuted to the 174*)-county court, where it is recited that on the 15th day of May, 1908, defendant was permitted to file its answer, being entitled "Amended Answer," in which it is specifically pleaded that upon the back of said telegram was a printed condition under which said message was received and transmitted, which was made by William Brown for the benefit of the plaintiff, and that said plaintiff, as well as the defendant company, was bound thereby; that in said condition it was provided that the defendant company should not be liable for damages or statutory penalties growing out of said contract, where the claim is not presented in writing within 60 days after the message is filed with the company for transmission; that no such claim was presented to the defendant company by said plaintiff, or by any one for him, within the specified time. If the defendant filed an answer in the justice of the peace court on appeal and trial de novo in the county court, it will be confined to the same were made and tried in said issues as court. Section 4993, Wilson's Rev. & Ann. Stat. 1903; section 6335, Comp. Laws Oklahoma 1909; section 4714, St. Okla. Ty. 1893; section 14, art. 7, Const.; Johnson v. Acme Harvester Mach. Co., 24 Okl. 468, 103 Pac. 638. The record not so disclosing, the defendant was entitled in the county court to plead in said answer the failure to present said claim within said 60 days. Wagstaff v. Challiss, 29 Kan. 505; Denver, M. & A. Ry. Co. v. Cowgill, 44 Kan. 325, 24 Pac. 475; Stanley et al. v. Farmers' Bank, 17 Kan. 592; Douglass v. Easter, 32 Kan. 496, 4 Pac. 1034. See, also, Houston & T. C. R. Co. v. Lefevre (Tex. Civ. App.) 40 S. W. 340; Hall v. Doyle, 35 Ark. 445. On timely application to the county court, a party to the action should be permitted to have the record from the justice's court corrected by such justice of the peace so as to show that an answer was filed therein by the defendant, if, in fact, it was. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 607-636; Dec. Dig. § 164.*] Error from Pittsburg County Court; R. W. Higgins, Judge. Action by L. A. Hollis against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded. George H. Fearons, Shartel, Keaton & Wells, and F. H. Kellogg, for plaintiff in error. A. C. Sewell, for defendant in error. WILLIAMS, J. On the 21st day of January, 1908, the defendant in error, as plaintiff, commenced an action against the plain- [2] Section 1 of the Schedule to the Contiff in error, as defendant, before the justice stitution is in hæc verba: "No existing court for Canadian township, in Pittsburg rights, actions, suits, proceedings, contracts, county, by filing a bill of particulars for or claims shall be affected by the change in $199.50 as damages for failure on July 3, the forms of government, but all shall con1907, to transmit and deliver a message in tinue as if no change in the forms of govhæc verba: "Kansas City, Mo. 7/3/1907. L. ernment had taken place." If the provision A. Hollis, Crowder, I. T.-Please car pota- for notice of such claim within 60 days was J. G. Harley and J. R. Miller, for plaintiff. T. D. Davis, for defendant. valid under the laws as they existed in the f Application by Tom Herndon for a writ Indian Territory, such breach of contract of prohibition against B. P. Hammond, Counhaving occurred thereunder prior to the erec- ty Judge. Writ denied. tion of the state, such laws now apply. Cooper v. Ft. Smith & Western R. Co., 23 Okl. 139, 99 Pac. 785. Such stipulation seems to be valid under such laws. Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; Primrose v. Western Union, 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883; Western Union v. Coggin et al., 68 Fed. 137, 15 C. C. A. 231; Finlay v. Western Union (C. C.) 64 Fed. 459. It would not now be valid. Article 23, § 9, of the Const.; Gray v. Reliable Ins. Co., 26 Okl. 592, 110 Pac. 728. [3] It appears from the record that the plaintiff asked an order of the county court to have the justice of the peace correct the record so as to show that the defendant filed an answer in the justice court, and did not set up therein the defense as to the presentation of the claim within 60 days. The plain- | tiff has presented no cross-petition in error to review this action of the county court. If after the cause is remanded timely application is made to the county court for permission to have the justice of the peace to so correct the record, such order should be granted, and, if the record is so corrected upon another trial, the defendant would not then be entitled to introduce this new issue in the county court. The judgment is reversed and remanded for a new trial. All the Justices concur. (28 Okl. 616) HERNDON v. HAMMOND, County Judge. (Supreme Court of Oklahoma. May 9, 1911.) (Syllabus by the Court.) 1. PROHIBITION (§§ 3, 10*)-GROUNDS. A writ of prohibition will not be awarded when the ordinary and original remedies provided by law, such as a writ of error, certiorari, or other modes of review or injunction, are available. (a) In criminal cases, neither appeal, habeas corpus, nor certiorari, as a rule, would be a plain, speedy, or adequate remedy. (b) As a rule in criminal cases, when the court under all contingencies is plainly without jurisdiction, prohibition is available. [Ed. Note.-For other cases, see Prohibition, Cent. Dig. §§ 4-6, 15, 43; Dec. Dig. §§ 3, 10.*] 2. COURTS (§ 207*)-JURISDICTION-CRIMINAL COURT OF APPEALS-PROHIBITION. The Criminal Court of Appeals having been specially created for the adjudication on appeal of all matters involving criminal offenses, and having jurisdiction by means of prohibition, as well as exclusive jurisdiction on appeal, to determine the question as to the jurisdiction of the municipal court of McAlester over the offense of selling intoxicating liquors contrary to an ordinance of said municipality and having held in favor of such jurisdiction, such holding, being at least persuasive and supported by authority, is followed by this court. [Ed. Note. For other cases, see Courts, Dec. Dig. § 207.*] WILLIAMS, J. On November 26, 1910, a complaint was lodged with the municipal judge of the city of McAlester, charging the plaintiff with unlawfully selling certain intoxicating liquors, contrary to an ordinance of said municipality. A capias issued and plaintiff, being apprehended on trial, was convicted and sentenced. An appeal was prosecuted from said judgment by the plaintiff to the county court of Pittsburg county. In the municipal court the plaintiff raised the question of its jurisdiction of said action, and renewed the same in the county court. In each tribunal the contention was overruled. Thereupon plaintiff applied to this court for a writ of prohibition to restrain the county court from proceeding to a final trial of said action. [1] In Evans v. Willis, 22 Okl. 313, 97 Pac. 1047, 19 L. R. A. (N. S.) 1050, 18 Am. & Eng. Ann. Cas. 258, it was held that a writ of prohibition would not be awarded when the ordinary and original remedies provided by law, such as an appeal, writ of error, certiorari, or other modes of review or injunction, are available, but that in criminal cases neither an appeal, habeas corpus, nor a certiorari would be a plain, speedy, or adequate remedy. And in that case the writ of prohibition was awarded. At that time this court had appellate jurisdiction as to all criminal cases. Section 2, art. 7, of the Constitution. Since then exclusive appellate criminal jurisdiction has been vested in the Criminal Court of Appeals. Buck v. Dick, 113 Pac. 920, decided at the January, 1911, term of this court, but not yet officially reported. From the judgment of the county court an appeal would lie direct to the Criminal Court of Appeals. Court of Appeals has jurisdiction to issue writs of prohibition to restrain the county court from proceeding to judgment on this complaint if it has not jurisdiction. Ex rel. Eubanks v. Cole, 4 Okl. Cr. 25, 109 Pac. 736. Also the Criminal [2] In Ex parte Justus, 26 Okl. 101, 110 Pac. 907, in an opinion by this court, it is said: "The Court of Criminal Appeals of Texas has practically the same jurisdiction as the Criminal Court of Appeals of this state. In Griffin v. Tucker, County Atty.. 102 Tex. 420, 118 S. W. 635, the Supreme Court of Texas said: 'Ordinarily this court follows the construction given to penal statutes by the Court of Criminal Appeals, since the enforcement of such statutes must be in accordance with such construction; but the decisions of questions coming within the scope of cases of contested elections is intrusted to For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes raised, and in attempting to step from there to [Ed. Note.-For other cases, see Master and the civil courts, and must be in accordance of the building, walked to where said section was with constitutional and statutory provisions.' This seems to be a salutary rule." In Flood v. State, 113 Pac. 914, recently decided by this court, but not yet officially reported, this rule was again announced and adhered to. In Ex parte Simmons, 4 Okl. Cr. 662, 112 Pac. 951, the question as to the jurisdiction of the municipal court in such cases has been determined against the contention of the plaintiff by the Criminal Court of Appeals, and adhered to on a rehearing. Under the Constitution (section 2, art. 7) and the statutes of this state, this tribunal has been especially created for the adjudication of all ty; Geo. W. Clark, Judge. matters on appeal involving criminal offens- Action by Jasper Solts against the Southes. This tribunal having jurisdiction of ap-western Cotton Oil Company. There was a peal to determine as to the matters here in- directed verdict for defendant, and plaintiff volved, and being of matters pertaining ex- brings error. clusively to criminal offenses, we feel constrained to follow its holding thereon. The writ is denied. All the Justices con cur. (28 Okl. 706) SOLTS v. SOUTHWESTERN COTTON OIL CO. Dunn, J., dissenting. Error from District Court, Oklahoma Coun Affirmed. W. L. McCann, for plaintiff in error. Flynn, Ames & Chambers, for defendant in error. TURNER, C. J. [1, 2] This is an action by plaintiff in error, plaintiff below, against defendant in error, defendant below, in damages for personal injuries alleged to have been sustained by plaintiff as a result of (Supreme Court of Oklahoma. May 9, 1911.) the negligence of defendant. After answer (Syllabus by the Court.) 1. TRIAL (8 178*)-DIRECTION OF VERDICT. The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith. Where the evidence is conflicting and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration and totally disregarded, leaving for consideration that evidence only which is favorable to the party against whom the motion is leveled. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 401-403; Dec. Dig. § 178.*] 2. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT-SAFE PLACE TO WORK-EVIDENCE. Plaintiff, an employé of defendant, was charged with the duty of unloading cotton seed from a box car on a side track into a seed con filed, in effect, a general denial, plea that plaintiff assumed the risk of the employment, and contributory negligence, there was trial to a jury. At the close of the testimony, the court, on motion, instructed the jury to return a verdict for defendant, which was done. Plaintiff brings the case here, and assigns this for error. Tested by the rule that: "The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance therewith. Where the evidence is conflicting and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be elim veyor parallel therewith, said conveyor consist-inated entirely from consideration and totally ing of a long metal-lined trough about 16 inches disregarded, leaving for consideration that wide, in which lengthwise ran a metal screw evidence only which is favorable to the about 12 inches in diameter, and which had, the season before, been covered by an immovable party against whom the motion is leveled"— grating of metal rods 3 inches apart, upon the question for us to determine is, Was which said seed had been theretofore unloaded, there any evidence in this case that defendbut which said grating at the time of the injury ant was guilty of negligence, in that it faillay in 6-foot sections, which could be raised on hinges and hooked against the building to which ed in the performance of its duty to provide the conveyor was attached. To accomplish the reasonably safe appliances for the performwork, he was required to raise and hook back a section of the conveyor opposite the open door ance of the work required? Gowen v. Harof the car, lay a platform of loose boards from ley, 56 Fed. 973, 6 C. C. A. 190. If there is, the outer edge of the open conveyor to the car the court erred in taking the case from the door, enter the car, and fork the seed from it jury, otherwise not. The evidence discloses into the open section of the conveyor. After laying the platform, in order to get into the car, that at the time of the injury plaintiff was plaintiff got on top of said conveyor at the end about 30 years old, with the mind of a child ly revolving screw of the seed conveyor which ground in his foot and leg, necessitating amputation; that the superintendent, hearing his cries, went around and entered the building and stopped the machinery by throwing a clutch; that during the preceding season the cover of this conveyor consisted of one piece extending its entire length which was permanently fastened down; that cars were unloaded by throwing the seed on top of it, which, when clean, would fall through, but, when containing grab boles or trash, a man would have to walk on them and tramp them through as best he could, and that this manner was abandoned about the beginning of the season. of about 10 years; that during the previous | left foot coming in contact with the rapidseason he had worked for defendant a short time, but at the time of the accident, October 24, 1905, had been so employed only for about a week; that he worked as a common laborer at defendant's seedhouse, which was a large frame building used principally for storing large quantities of cotton seed, and contained shafts, conveyors, and other machinery used to distribute the seed into different parts of the building, which was 250 feet long east and west and 50 feet wide; that a railroad side track ran full length and parallel with the south side thereof, and that the distance between a box car standing on this side track and said house is about 34 inches; that along the entire length of said house and about 3 or 4 feet from the ground was attached a wooden trough, within which, extending its full length, was a screw conveyor consisting of a long metal shaft, attached to which were auger-like flanges, the screw being of a diameter of about 12 inches; that said trough was of oak boards 2 inches thick and 18 inches wide, lined with semicircular perforated sheets of metal, and was covered its entire length with a grated frame in 6foot sections made of iron 9/16 rods 3 inches apart extending across it; that said sections were hinged at the back, and could be raised and fastened to the building, thus leaving said screw exposed the length of the section raised; that, when the machinery was in operation, said conveyor revolved rapidly, and distributed cotton seed unloaded into it from cars on the side track westward then northward into the building; that the method adopted of unloading said seed at the time of the injury was to raise a section of the top of the conveyor, hook it back against the wall, open the car door on the north side, and from it to the near edge of the trough lay a platform of short boards; that the purpose of the platform was to keep the cotton seed from falling to the ground in the narrow space between the edge of the trough and the car while being forked by workmen in the car from the car into the open conveyor; that about 9 o'clock on the night of the injury the superintendent came to plaintiff and ordered him to go to another car on the track and open and unload it; that plaintiff went, opened the car, raised and hooked against the building a section of the top of the conveyor opposite the car door, and, with boards procured for the purpose, arranged a platform as described; that, after so doing, he passed under the platform, and went west between the car and the conveyor to and around the end of the other cars on the side track and to the south door to the car he intended to unload; that he tried to open said door, but failed, whereupon he retraced his steps to the west end of the cars, and there got on top of the covered seed conveyor, and walked east as far as it was covered, and, in attempting to step from there onto the platform in order to get in the car, lost his balance and fell, his The petition substantially charges and counsel for plaintiff, in effect, insists that defendant failed to furnish, him reasonably safe appliances with which to work, in that (1) defendant was negligent in failing to provide a footboard or other safe place for workmen to stand on in raising the top of the grating, opening the car door or adjusting the platform between the car and trough; also in that (2) defendant was negligent in failing to provide a clutch or lever reasonably near the conveyor to throw it out of gear in case of accident; and that (3) defendant was negligent in not continuing the use of the iron grating as a cover for the conveyor as used the previous season, and that the effect of the change was a failure to furnish plaintiff a reasonbly safe appliance, and needlessly expose him to danger into which he fell, and was injured. From the facts thus disclosed the court, in effect, held that they failed to raise the presumption of negligence in any of the particulars relied on, or, in other words, that the doctrine of res ipsa loquitur did not apply. This was not error. This case is governed by the rules of law applicable to the relation of employer and employé. These rules differ from those which govern in cases of injury to passengers for hire. Whether the rule of res ipsa loquitur ever applies as between employer and employé, and such has been denied by the Supreme Court of the United States in Patton v. Texas, etc., R. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, it has no application here. In that case the court said: "The fact of accident carries with it no presumption of negligence on the part of the employer; and it is an affirmative fact for the injured employé to establish that the employer has been guilty of negligence. It is not sufficient for the employé to show is unable to adduce sufficient evidence to |