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in the syllabus said: "In case of an accidenttive, the same was unknown to appellant. Ile to an employé, the fact of accident carries had been instructed by appellant as to the with it no presumption of negligence on the proper manner of handling bottles so charg. part of the employer, and it is an affirmative ed, and was so doing when the explosion cofact for the injured employé to establish that curred. There was no evidence tending to the accident was the result of the negligence show that appellant's bottling apparatus were of the employer." As the case at bar was unfit or dangerous, or that its employés oppending at the time of the erection of the erating them were careless, unskillful, or neg. state, this rule controls here. State, etc., ligent, or that the exploded bottle was not Ins. Co. v. Craig, 111 Pac. 325.

carefully filled, charged, and corked and perBearing in mind the evidence disclosed that fectly safe for any one to handle in the manplaintiff received his injury in attempting to ner the ward was instructed to and did hanget into the car, it is unnecessary to consider dle it. In this state of facts the court said whether the evidence raises the presumption that: "The appellant not being able by the of negligence on the part of defendant in fail- exercise of such care and foresight as a man ing to furnish a footboard or other safe place of ordinary prudence would have exercised for plaintiff to stand on in raising the top of under the same or like circumstances, to reathe grating, pening the car door, or adjust- sonably anticipate the explosion, was not reing the platform, for the reason that plain- quired by ordinary prudence to furnish an tiff was not injured in the attempted dis- employé handling such bottles with a mask charge of any of said duties. And, as no to prevent injuries from explosions it could question of defective construction is relied and did not anticipate"-and dismissed the on, defendant's alleged failure to provide a suit at the cost of plaintiff. In Gowen v. clutch or lever reasonably near to throw the Harley, supra, the court, after stating the law machinery out of gear in case of accident to be: "It is the duty of the master to use need not be considered. The negligence re- that degree of care commensurate with the lied on is, in effect, that the master failed character of his various operations which an to use the iron grating or cover for the con- ordinarily prudent person would exercise unveyor as used the previous season, and that der like circumstances to supply his servants the effect of the change was a failure to fur- with reasonably safe machinery and appli. nish plaintiff with a reasonably safe appliances with which to perform the service asance and needlessly expose him to danger signed to them. A breach of this duty is into which he fell and was injured. Now, actionable"-said that the first question the burden is on plaintiff to prove negligence. to be determined in that case under said To convict the master of negligence, plaintiff rule was whether there was evidence in the must not only prove the injury, but must go case that defendant was guilty of negligence; further, and prove that the failure of the "that he failed in the performance of his master to use the cover as used the previous duty to provide reasonably safe appliances season was the proximate cause of his in- for the performance of the work required of jury, and that the master, by the exercise of the plaintiff and his fellow servants." In such care and foresight as a man of ordinary that case the facts were that plaintiff and prudence should have exercised under like his fellow servants, employés of defendant, circumstances, should have reasonably antic- were employed to transfer a box weighing ipated that his failure so to do would result 200 to 250 pounds, with a good handle at in plaintiff being injured as he was. Coupled each end, from one car to another as they with proof of the physical fact of injury, stood on the tracks at McAlester with doors proof of the latter is indispensable to a re- opposite each other and about 5 feet apart. covery, for the reason that the master is en- The surface of the ground between the cars titled to the presumption that he has done at the place of transfer was hard and smooth, his duty, and therefore is not negligent, and and the shoulders of a man standing upon further proof is necessary to overcome this it were about the height of the lower floor presumption.

of the cars. When plaintiff took employment In Dullnig v. Duerler Mfg. Co. (Tex.) 87 with defendant, the box was transferred in S. W. 332, the facts were that plaintiff's this manner: A double rope 18 inches long ward, Robert, 17 years old, was employed by was attached to one of the handles. The defendant, and had been for some time, in porter would shove the box part of the way washing empty bottles and handling and out of the door of the car and take hold of packing the same filled with certain waters the rope. Plaintiff would stand in the door charged with a certain gas; that on April of the car opposite, brace himself with one 12, 1902, while so doing, in turning them top hand against the jamb of the door opposite, end down in a box, one of the bottles explod seize the handle of the box with the other, ed, and a piece of glass therefrom put out and both men then swing it across into the his eye. They were secondhand bottles, test- car where plaintiff stood. As they were in ed to stand pressure of from 80 to 100 the act of so doing at the time of the injury pounds to the square inch, and were charged complained of, the rope came untied and with mineral water to a pressure of 25 pounds plaintiff fell out of his doorway, and was into the square inch; that the bottle which ex- jured. The rope was not an appliance fur. ploded was of the same kind and character nished by defendant, but was attached to

box had been thus transferred before plain the method adopted of loading into it seed tiff entered the service. A few days after en from the car was other than the latest and tering service, he asked the master mechanic most approved, and that the section of the of defendant for some skids to slide the box cover raised could not have been lowered by across upon, and the next day was supplied plaintiff and the screw thus covered at any with two planks which he used for some time his safety required it. With this view time, but was taken sick and lost them. and that there is no evidence tending to prove Thereafter he transferred the box daily up that defendant could, by the exercise of ordito the time of the accident in the manner nary prudence, but did not, anticipate the inindicated. Within 30 days after his return jury and continue the use of the cover as durto the service after his sickness and during ing the previous season, there is no proof of the month prior to the injury, he asked of negligence. The judgment of the trial court the proper officer of defendant that said is therefore affirmed. planks be again furnished, which was promised; the last being three days before the

HAYES, WILLIAMS, and KANE, JJ., conaccident. This was done for the sole reason cur. DUNN, J., dissents. that to skid the box on them was easier than to swing it over. It was urged that defend

(28 Okl. 598) ant was guilty of negligence because of his VAN ARSDALE-OSBORNE BROKERAGE failure to furnish the skids to transfer the

CO. v. COOPER, box from one car to the other; that a man (Supreme Court of Oklahoma. May 9, 1911.) of ordinary prudence would have foreseen

(Syllabus by the Court.) that this box could not be safely transferred 1. INSURANCE ($ 130*) - COMMENCEMENT OF without such skids, and would have furnish RISK-APPLICATION-APPROVAL. ed them. But the court held not so, and that The written application for insurance stipthe jury should have been instructed that ulated that such insurance was to be in force there was no evidence in the case of any but that the application should not be construed

from the day of the approval of the application, breach of duty on the part of defendant, and as a contract of insurance against said comfor that reason they should return a verdict pany until the same should be approved by it, in his favor, citing Aerkfetz v. Humphreys, which approval should be evidenced by the is

suance and delivery of the policy. Held, that 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758; said contract was completed on the approval of Tuttle v. Railway Co., 122 U. S. 189, 196, 7 said application by any authorized agent of said Sup. Ct. 1166, 30 L. Ed. 1114; Goodlett v. company. Railroad Co., 122 U. S. 391, 410, 7 Sup. Ct. Cent. Dig. $S 195–202; Dec. Dig. & 130.*)

[Ed. Note.-For other cases, see Insurance, 1254, 30 L. Ed. 1230. In Surles' App. v. Kissler, 202 Pa. 289, 51 Atl. 887, defendants

2. INSURANCE (8 130*) - APPLICATION - AP

PROVAL. were charged with negligence in failing to

The issuance and delivery of said policy is maintain the floor of a laundry in condition. conclusive proof of approval of the application The facts were plaintiff was the servant of and completion of the contract, but does not

exclude other means of proof. defendants, the proprietor of the laundry,

[Ed. Note.-For other cases, see Insurance, and had been upon the premises for years; Cent. Dig. $ 198; Dec. Dig. $130.*] that at the time of the injury she was scrub- 3. INSURANCE ($ 130*) — APPLICATION - APbing the floor covered with wooden racks for PROVAL. the purpose of keeping the feet out of the Independent of the issuance and delivery wet. When scrubbing under them, she set may be made by direct evidence of the act of

of the policy, the approval of said application them to one side. She testified that at the approval itself, or impliedly by the acceptance time of the injury there was nothing to in- and application of the premium. dicate that the floor was unsafe to walk upon

[Ed. Note.--For other cases, see Insurance, at the place where she was hurt, but that Cent. Dig. § 198; Dec. Dig. $ 130.* ] the same gave way, and her foot went Error from District Court, Kay County; through. Other evidence indicated that she W. M. Bowles, Judge. stepped or slipped through a hole used for Action by the Van Arsdale-Osborne Brodischarging water at that point. The court, kerage Company against William Cooper. in effect, held that, as the evidence disclosed Judgment for defendant, and plaintiff brings defendants had no reason to anticipate such error. Reversed and remanded. occurrence, it was not error to direct a ver

E. L. Foulke (C. A. Matson and Sam K. dict in their favor. McCarthy v. Shoneman, Sullivan, on the brief), for plaintiff in error. 198 Pa. 568, 48 Atl. 493; Fuller v. Ann Ar- L. D. Thomason, for defendant in error. bor R. Co., 141 Mich. 66, 104 N. W. 414; Stamford Oil & Mill Co. v. W. T. Barnes, 1 WILLIAMS, J. On September 12, 1906, S. W. 375, recently decided by the Supreme the defendant in error, hereinafter referred Court of Texas, and not yet officially re- to as defendant, made application in writing ported.

to the St. Paul Fire & Marine Insurance In the case at bar there is no evidence Company, through the plaintiff in error, heretending to prove that the conveyor was oth- inafter referred to as plaintiff, for $1,550 fire er than of the latest pattern, perfectly con- insurance, and a like amount in lightning structed, and in perfect working order; that land tornado insurance. At the same time *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

defendant executed his note in favor of plain-, templated the issuance, and delivery of a tiff to cover the premium thereon, the plain-policy, and none was delivered, on a defense tiff to advance the cash to pay the insurance of no consideration the defendant sustains company. The note was not paid at matu- the burden placed on him, by showing that rity, and on the 3d day of December, 1907, he received no policy nor any notice that plaintiff sued defendant on same. Defendant the application had been approved. (2) Where admitted its execution, but alleged that the an application for hail insurance provides policy for which it was made and delivered that the insurance company shall not be had neither been issued nor delivered to bound until the application is accepted and the pia intiff. The application was taken by approved at its 'home office, in a suit on a a local agent at Newkirk. A clause therein note given for such insurance, it is incumprovided : "This application shall not be bent on the holder thereof to show such construed as a contract of insurance as approval and acceptance, or acts tantamount against said company, until the same shall | thereto, in order that he be entitled to rebe approved by said company, which shall cover.” The contract under consideration in be evidenced by the issuance and delivery that case is identical with that here. In of their policy, either at their home office the opinion, this court said: "If the comor by an authorized recording agent.” On pany was not liable on its insurance contract, the back of the application is a direction to then it necessarily follows that the defendsend the policy to the assured (defendant). ant was not liable on his note. There was The application was received by the general some evidence offered showing that a policy agents of the plaintiffs at their office in was issued on his application, but nothing Wichita, Kan., in due course of business, a whatever was shown as to its terms, who, it distance of about 65 miles from the home of any one, was insured under it, and what the defendant. The defendant heard noth- property it covered. It was not offered in ing from said application after he signed it, evidence, nor was any foundation laid or neither was any policy of insurance delivered effort made tu establish same by secondary to him in person, nor was he informed in any evidence.” manner by any one that said application had [1] In this case is evidence tending to been approved, or any policy issued or inailed show the approval of the application and the to him. On April 4, 1907, defendant notified issuance and forwarding of the policy through the general agents that he had not received the mails to the defendant properly adany policy of insurance. Thereupon a lost dressed, postage prepaid. In the Preferred policy affidavit or receipt was sent to him Accident Insurance Company of New York requesting that he properly execute same v. Stone, 61 Kan. 48, 58 Pac. 986, in an opinand a duplicate policy would be issued to ion delivered by Chief Justice Doster, it is him. This he failed to do. The local agent said: "It is a general rule that, when a discontinued business, and left the country contract of insurance has been agreed on, before this action was begun. At the time the execution of a policy is not essential to of his departure he turned over to a party its validity, unless part of the contract be in Newkirk a box containing various papers, that it shall not take effect until the ex. among which was discovered the two pol-ecution and delivery of that instrument. Ex icies of insurance intended for the defend- cept in cases where by agreement of the ant. Thereupon said policies were delivered parties the contract is to be completed only by such party to the local agent of the in- by the execution and delivery of the policy, surance company, but they were never de the insured may bring suit on the agreement. livered or tendered to the defendant. The if a loss has occurred in the meantime, Keim evidence on the part of the plaintiff tended et al. v. Home Mutual Fire & Mar. Ins. Co. to show that the general agent of the in- of St. Louis, 42 Mo. 38 [97 Am. Dec. 291); surance company received said application, Insurance Co. v. Colt, 87 U, S. 560 [22 L approved the same, and caused the policies Ed. 423); Tayloe v. Merchants' Fire Ins. Co., to be issued. On February 14, 1906, said 9 How. 390, 13 L. Ed. 187; City of Davenpolicies, being numbered 30,006 and 23,847, port v. Peoria Marine & Fire Insurance Co., were duly forwarded by mail, postage pre- 17 Iowa, 276; Hallock v. Insurance Co., 26 paid, properly addressed to the defendant at N. J. Law, 268. But it is said that the apNewkirk, Okl., being indorsed on the en- plicant stipulated that “the policy shall not velope in which the said policies were inclos- be in force until actually issued from the ed the following words: "If not called for office in New York.' This stipulation is, of in 10 days return to Van Arsdale & Osborne, course, valid and binding on the insured. General Agents,

Wichita, Kansas." Under it the policy cannot be regarded as The letter was never returned.

in force until issued; but the policy, when The question essential for determination issued, would not be the contract between the is whether any evidence tended to show the parties, under the doctrine of the above approval of the application. In Van Arsdale quoted decisions. It would be only evidence & Osborne v, Young, 21 Okl. 151, 95 Pac. 778, of the contract. It may be that a suit could it was held: "(1) Where, in an action on a not be brought upon it as a policy until it promissory note, execution and delivery of had been issued, but this is not saying that which is admitted, which was given for a suit could not be brought to enforce spe

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and in the same suit, as a part of the ap-, tion her property burned. The controlling propriate relief, recover on it as though it question in the case is whether the proposal had been formally issued." The application for insurance contained in the plaintiff's aprecites: “Application of W. M. Cooper plication was accepted by the defendant. If

for insurance against loss by fire and it was, there was meeting of the minds of lightning by the St. Paul Fire and Marine In the parties and a valid contract of insursurance Company, of St. Paul, Minn., for the ance which will be in force though no policy sum of ($1,550) one thousand five hundred and issued." In New York Life Insurance Co. fifty dollars, and against loss by tornado or v. Babcock, 104 Ga. 67, 30 S. E. 273, 12 cyclone for the sum of ($1,550) one thousand L. R. A. 88, 69 Am. St. Rep. 134, it is said: five hundred and fifty dollars

for "Where one party makes a proposition to the term of five years from the day of ap- purchase a thing which is unconditionally proval of this application by Van Arsdale & accepted by the other, the contract of purOsborne, General Agents at Wichita, Kan-chase becomes complete. There is no rea

At the close of said applica- son why the same rule should not be applied tion it also recites: “This application shall when a written application is made for an not be construed as a contract of insurance insurance policy. So long as the application as against said company, until the same shall is not acted upon by the insurance compabe approved by said company, which approval ny, of course no contract has been consuinshall be evidenced by the issuance and de- mated; and, if the applicant should die lelivery of their policy, whether at their home fore the acceptance of his application, the office or by an authorized recording agent.” company has incurred no liability. But, (Italics ours.)

when the application is accepted and nothing [2] The issuance and delivery of the pol- remains for the applicant to do, the contract icy seems by this contract to be conclusive becomes complete. Actual delivery of the evidence of its approval, but it is not exclu- policy to the insured is not essential to the sive evidence thereof. Independent of the validity of such a contract, unless expressly issuance and delivery of the policy, the as- made so by its terms. It is true that whethsured might prove that the general agents er or not a policy has been delivered ofter of the insurance company, or any other au- becomes a material question, for this is thorized agent, had approved said applica- usually the most effective way of proving the tion.

acceptance of the application made by the [3] This proof might be made by positive insured. But the contract may be ntberevidence of the act of approval itself, or in wise proved, and when it is shown to be in an implied way by the acceptance and ap- writing it is ordinarily binding upon the plication of the premium by any party so company, though there should be no deiivery authorized. The correct rule under such whatever either actual or constructive of the an application seems to be that the obligation policy and though it should remain in the of the insurer or insurance company depends hands of the company.” In Insurance Comon the fact of the acceptance or approval of pany of North America v. Thornton, 130 the application for insurance and not on Ala. 222, 30 South. 614, 55 L. R. A. 547, 89 notice of such acceptance to the insured. Am. St. Rep. 30, it is said: "Where a subHome Life Insurance Co. v. Myers, 112 Fed. agent authorized to issue fire insurance pol846, 50 C. C. A. 544; Northampton Mutual icies receives an application under an agreeLive Stock Ins. Co. v. Tuttle, 40 N. J. Law, ment that the risk shall begin on the day it 476; Robinson v. United States Benev. Soc., is received, the company is liable for a loss 132 Mich. 695, 94 N. W. 211, 102 Am. St. which occurs subsequent thereto, although Rep. 436; Lungstrass v. German Ins. Co., the policy has not been issued.” That the 48 Mo. 201, 8 Am. Rep. 100; Commercial actual delivery of the policy, unless expressIns. Co. y. Hallock, 27 N. J. Law, 645, 72 ly made so by the terms of the contract, Am. Dec. 379; Hartford Steam Boiler In- is not essential to the validity of the conspection & Ins. Co. v. Lasher Stocking Co., tract of insurance, is a settled rule. Cooley 66 Vt. 439, 29 Atl. 629, 44 Am. St. Rep. 859; on Insurance, p. 446; New York Life InAlliance Co-operative Ins. Co. V. Corbett, 69 surance Co. v. Babcock, 104 Ga. 67, 30 S. E. Kan, 564, 77 Pac. 108; Blanchard v. Waite, 273, 42 L. R. A. 88, 69 Am. St. Rep. 134; 28 Me. 51, 48 Am. Dec. 474; McCully's Adm'r Firemen's Fund Ins. Co. v. Pekor, 106 Ga. v. Phænix Mutual Life Ins. Co., 18 W. Va. 1, 31 S. E. 779; Bragdon v. Appleton Ins. 782; Cooley's Briefs on Insurance, pp. 426, Co., 42 Me. 259; Home Ins. Co. v. Curtis, 442. . In Herring v. American Insurance Com- 32 Mich. 402; Equitable Fire Ins. Co. v. pany, 123 Iowa, 533, 99 N. W. 130, it is Alexander (Miss.) 12 South. 25; National held: “Where a proposal for insurance as Aid Association v. Bratcher, 65 Neb. 394, 91 contained in an application is accepted, there N. W. 379. "The deposit in the post office is a contract of insurance, though no policy by an insurance company of å policy, with has issued.” In the opinion it is held: "The postage prepaid, directed to the insured at plaintiff made a written application for fire his place of residence, is a delivery to the insurance upon her property, which she insured.” Cooley on Insurance, p. 447. See, claims was received and accepted by the de- also, Triple Link Mutual Indemnity Associa'endant. No policy was issued to her, and tion v. Williams, 121 Ala. 138, 26. South. 19, about a month after she made the applica- ' 77 Am. St. Rep. 34; Armstrong v. Mutual

Life Ins. Co., 121 Iowa, 362, 96 N. W. 954; proceeded to trial, which resulted in a judg. Commonwealth Mutual Fire Ins. Co. v. Knabe ment in favor of defendant in error, from & Co., 171 Mass. 265, 50 N. E. 516; Fidelity which an appeal was taken by plaintiff in Mutual Life Association v. Harris, 94 Tex. error to the county court. In the county 25, 57 S. W. 635, 86 Am. St. Rep. 813; Bow-court plaintiff in error filed a motion to man v. Northern Accident Co., 124 Mo. App. strike from the files the papers in the cause, 477, 101 S. W. 691; Reeves & Co. v. Martin, and to dismiss the action, for the reason that 20 Okl. 558, 94 Pac. 1058. Under the stipula- the court was without jurisdiction of its pertions of this application if the application son. This motion was by the court sustainwas approved, the policies issued, and placed ed, but thereafter a motion of defendant in in the postoffice, postage prepaid, properly error to set aside the judgment of dismissal addressed to the assured, the contract was and reinstate the cause was granted and complete.

the cause was continued for service, whereThe judgment of the lower court is revers- upon summons was issued and served upon ed, and remanded, with instructions to grant plaintiff in error's duly designated agent a new trial, and proceed in accordance with for service. Plaintiff in error renewed its this opinion. All the Justices concur. motion to quash the proceedings in the coun

ty court and strike from the files thereof the

papers in the cause and to dismiss the ac(28 Okl. 637)

tion. Its motion was by that court overrulGULF PIPE LINE CO. v. VANDERBERG. ed, and a trial of the cause again resulted (Supreme Court of Oklahoma. May 9, 1911.) in judgment in favor of the defendant in (Syllabus by the Court.)

error. To reverse that judgment, this pro1. CORPORATIONS (8 668*)-FOREIGN CORPORA-ceeding is prosecuted. TIONS-SERVICE OF PROCESS.

Thomas C. Humphry, for plaintiff in erThe service of summons upon a foreman of a pipe line company, a foreign corporation, is ror. J. L. Dickson, for defendant in error. unauthorized by the statute, and is void. Chas. B. Ames, and William C. Scarritt.

[Ed. Note.-For other cases, see Corporations, amici curiæ. Cent. Dig. $8 2603-2616; Dec. Dig. $ 668.*] 2. JUSTICES OF THE PEACE (8 161*)-ISSUANCE HAYES, J. (after stating the facts as

AND SERVICE OF SUMMONS--IRRÉGULARITY-above). The principal assignments of error WAIVER.

A defendant in an action in a justice court necessary to be considered are those that upon whom a defective service of process has challenge the jurisdiction of the justice court been made, although he appears specially for and of the county court of the person of the purpose of challenging the service and the plaintiff in error. court's jurisdiction of his person, and thereafter, without waiving his special appearance, proceeds

[1] Section 1227 of Wilson's Rev. & Ann. to the trial upon the merits, if he appeals from Statutes provides that a foreign corporation a judgment of the justice court against him to doing business in the state shall appoint an the county court, where a trial de novo upon questions both of law and fact must be had, by agent who shall reside at some accessible taking the appeal he waives all irregularities in point in the state in the county where the the issuance and service of summons in the jus- principal business of the corporation is cartice court; and he cannot thereafter be heard to ried on or at some place in the state, if the question the same or to deny the appellate corporation has no place of business, who court's jurisdiction of his person.

[Ed. Note.--For other cases, see Justices of the shall be authorized to accept service of proPeace, Cent. Dig. $ 602; Dec. Dig. $ 161.*] cess, and on whom service of process may be

had in any action in which the corporation Error from Choctaw County Court; W.

1.

may be a party. In Bes Line Const. Co. v. Glenn, Judge.

Schmidt, 16 Okl. 429, 85 Pac. 711, it was Action by A. M. Vanderberg against the held that, where a foreign corporation other Gulf Pipe Line Company. Judgment for than a railroad or stage company has complaintiff, and defendant brings error. Af

plied with the provisions of the foregoing firmed.

statute by appointing an agent in the state This action was originally instituted on for service of process, service of process the 20th day of April, 1908, by defendant in must be had upon such agent; and, when error in a justice court of Choctaw county made upon any other person, it is irregular. to recover damages alleged to have been The court in that case did not refer to, and sustained by him by reason of certain negli- seems not to have considered, sections 4267, gent acts of plaintiff in error, a foreign 4268, and 4274 of Wilson's Rev. & Ann. Statcorporation. A summons was issued and utes 1903. Section 4267 provides that acserved upon plaintiff in error's foreman. knowledgment of service on the back of the Thereupon defendant entered a special ap- summons or voluntary appearance shall be pearance in the justice court, and moved equivalent to service. Section 4268 authorto quash and set aside the service of the izes a summons against a corporation to be summons and the constable's return thereof. served upon the president, mayor, chairman Its motion was overruled by the court, and of the board of directors, or trustees or other the cause, after answer of plaintiff in error, chief officer; or, if a chief officer is not

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