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+"{\"id\": \"10326284\", \"name\": \"Jackie Louis CARTER, Appellant, v. The STATE of Oklahoma, Appellee\", \"name_abbreviation\": \"Carter v. State\", \"decision_date\": \"1996-07-30\", \"docket_number\": \"Nos. F-94-538 to F-94-541\", \"first_page\": \"634\", \"last_page\": \"642\", \"citations\": \"922 P.2d 634\", \"volume\": \"922\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T17:01:11.631102+00:00\", \"provenance\": \"CAP\", \"judges\": \"JOHNSON, P.J., CHAPEL, V.P.J., STRUBHAR, J., concur.\", \"parties\": \"Jackie Louis CARTER, Appellant, v. The STATE of Oklahoma, Appellee.\", \"head_matter\": \"Jackie Louis CARTER, Appellant, v. The STATE of Oklahoma, Appellee.\\nNos. F-94-538 to F-94-541.\\nCourt of Criminal Appeals of Oklahoma.\\nJuly 30, 1996.\\nOsher Bachrach, Norman, Trial Counsel, for Appellant.\\nR. Richard Sitzman, Assistant District Attorney, Norman, Trial Counsel, for Appellee.\\nSandra Mulhair Cinnamon, Appellate Defense Counsel, Norman, Appellate Counsel, for Appellant.\\nW.A. Drew Edmondson, Attorney General, Robert Whittaker, Assistant Attorney General, Oklahoma City, R. Richard Sitzman, Assistant District Attorney, Norman, Appellate Counsel, for Appellee.\\n. The introductory paragraph of subsection 10 of Section 1402 reads:\\n\\\"Racketeering activity\\u201d means engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in any conduct which is chargeable or indictable as constituting a felony violation of one or more of the following provisions of the Oklahoma Statutes, regardless of whether such act is in fact charged or indicted: ....\", \"word_count\": \"4412\", \"char_count\": \"27168\", \"text\": \"OPINION\\nLUMPKIN, Judge:\\nThis case deals extensively with the Oklahoma Corrupt Organizations Prevention Act (hereinafter \\\"Act\\\", \\\"RICO\\\", or \\\"racketeering charge\\\"), codified at sections 1401 through 1419 of Title 22. It presents a first-impression question of venue which occurs when both predicate acts and substantive charges \\u2014 some which occurred in other counties \\u2014 are filed in one court proceeding.\\nI.\\nAppellant Jackie Louis Carter was tried before a Cleveland County jury pursuant to the venue provisions of the Act and convicted as follows: in CF-93-410, he was convicted of Grand Larceny in the House in the Night Time (Garvin County) (21 O.S.1991, \\u00a7 1707), and was sentenced to five (5) years. In CF-93-412, he was convicted of Second Degree Forgery (Cleveland County) (21 O.S.1991, \\u00a7 1585(2)), and was sentenced to three (3) years. In CF-93-416, he was convicted of Obtaining Merchandise by False Pretenses (21 O.S.1991, \\u00a7 1541.1), and was sentenced to six (6) months in the county jail. In CF-93-417, he was convicted of Robbery by Force and Fear (Oklahoma County) (21 O.S.1991, \\u00a7 791), and was sentenced to eight (8) years. The trial court ordered all sentences to be served consecutively. We affirm the conviction for forgery; for reasons given below, all other convictions must be reversed.\\nTo fully understand this case, some background is necessary. Appellant was also charged with (and acquitted of) CF-93-352, criminal racketeering under the Act, stemming from gang activity alleged to have been a part of the other charged offenses; and CF-93-415, another count of grand larceny. In an attempt to prove the criminal racketeering charge, the prosecution presented evidence of several other predicate crimes which occurred in three different counties (not separately charged). In all, there were over fifty witnesses for the prosecution, presented over a period of ten days of trial, comprising ten volumes of transcripts. With that in mind, the following facts are limited to the crimes of which Appellant was convicted.\\nAt approximately 6:30 p.m. on November 16, 1992, in Oklahoma County, 84-year-old William Clark ran his car off in a ditch along 1-35 in south Oklahoma City. A Mr. Hickman came along, stopped and offered to go get help. As Hickman was pulling off, he saw another car pull up to the accident scene, two black males get out and approach Clark. The two men forced two rings off Clark's fingers which altogether contained approximately six carats in diamonds; then took his wallet containing approximately $400 and some credit cards, including a Dillard's card. The two men then left. This formed the basis for CF-93-417, robbery by force and fear.\\nThat same evening at approximately 7:30 p.m., two black males entered the Dillard's store at Sooner Fashion Mall in Norman, Cleveland County, and picked out items of clothing to purchase. At the register, the purchaser, identified as Appellant, presented the clerk with William Clark's credit card and signed Clark's name to the charge slip. He and his companion then took the clothes and left. These actions formed the basis for CF-93-412, second degree forgery and CF-93-416, obtaining property by false pretense.\\nOn November 28, 1992, in Pauls Valley, Garvin County, L.R. and Irene Hartley ran a laundromat in a building behind their house. That evening at 8:25 p.m., someone rang the front door bell. Mrs. Hartley answered the door to find a young black male standing there. As the youth continued asking questions, Mrs. Hartley formed the impression he was stalling, and she discontinued the conversation. After the youth had gone, Mrs. Hartley heard a noise in the back portion of her house. When she investigated, she found two black males in her bedroom, one of which was Appellant.. Fearing for her safety, she ran out of the house. Outside, she discovered her husband, L.R., who had been inside the laundromat, had been robbed at the same time by an associate of Appellant's. When she returned, she discovered someone had taken her billfold and other items from her purse. She lost approximately $125. This formed the basis for CF-93-410, grand larceny from a house at night time.\\nII.\\nFor his first proposition, Appellant claims that by trying him in Cleveland County for crimes which occurred in Oklahoma and Gar-vin Counties, he was denied his rights under Article II, Section 20, of the Oklahoma Constitution, which guarantees trial in the county in which the crime occurred. He also claims this violated his right to Due Process under the Fourteenth Amendment to the United States Constitution.\\nA.\\nIn an attempt to prove racketeering activity, prosecutors presented evidence of predicate crimes in adjoining Garvin and Oklahoma counties in addition to predicate crimes in Cleveland County. Appellant did not object to the evidence to prove the racketeering charge; however, he did object to being tried in Cleveland County for the substantive crimes which occurred in the other two counties. The prosecution claimed venue was proper because the criminal racketeering charge was being tried in Cleveland County; therefore, the prosecution could use the racketeering statute to \\\"bootstrap\\\" the substam tive crimes from the other counties into one trial. We agree.\\nB.\\nAppellant cites Okla. Const. Art. II, \\u00a7 20, which reads in pertinent part:\\nIn all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime Shall have been committed' or, where uncertainty exists as to the county in which the crime was committed, the accused may be tried in any county in which the evidence indicates the crime might have been committed. Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law....\\nAppellant's argument cannot stand based solely on this provision. Despite this constitutional provision, this Court has upheld statutory enactments by the Legislature which would appear to enlarge the venue provisions enacted in this constitutional provision. See 22 O.S.1991, \\u00a7 124 (venue may be in more than one county where parts of offense committed in more than one county); State v. Bennett, 81 Okl.Cr. 206, 214, 162 P.2d 581, 585 (1945); Williams v. State, 16 Okla.Cr. 217, 236-37, 182 P. 718, 724 (1919) (recognizing venue for conspiracy prosecution may be in more than one county). See also 22 O.S. 1991, \\u00a7 123 (allowing for prosecution in county where defendant resides, even though defendant may have gone outside the state to commit the crime of dueling). With this in mind, we shall consider the venue provision of the racketeering act itself.\\nVenue under the Oklahoma Corrupt Organizations Prevention Act is set forth within the Act itself. It reads:\\nVenue for a civil or criminal action to enforce, the provisions of the Oklahoma Corrupt Organizations Prevention Act shall be in any county in which at least one act of racketeering activity is alleged to have occurred in the petition or information or indictment, it being the intent of this act, that one district court have jurisdiction over all the conduct, persons and property subject to this act.\\n22 O.S.1991, \\u00a7 1403(E). The State argued both at trial and on appeal that the key phrase here is the last portion of the sentence, \\\"it being the intent of this act, that one district court have jurisdiction over all the conduct, persons and property subject to this act.\\\" The State argues the words \\\"all the conduct\\\" indicate an intention by the Legislature that one district court should have the venue to try all crimes, both predicate and substantive, in one proceeding, provided the racketeering charge itself has been properly pleaded and shown to exist.\\nAppellant replies the same \\\"conduct\\\" language is also contained in Section 1402 of the Act, which allows a predicate offense committed outside of Oklahoma to be used in support of a racketeering charge, arguing that under the logical extension of the State's interpretation of \\\"conduct,\\\" an Oklahoma trial court would be allowed to try a person for a crime committed outside the state.\\nAppellant's argument misses the distinction between jurisdiction and venue. There is a difference between lack of jurisdiction, which would prevent a court in Okla homa to try someone for a crime committed outside the state; and venue, which determines which of many courts having jurisdiction is the proper forum for a trial. See Smith v. State, 554 P.2d 851, 854 (Okl.Cr.1976). Therefore, his -argument on this point is not persuasive.\\nThe state RICO Act defines criminal racketeering by listing specific statutory offenses which can serve as foundational or predicate crimes for the racketeering offense. 22 O.S.Supp.1993, \\u00a7 1402(10). Clearly, these offenses constitute \\\"conduct\\\" which can both be a foundation for the RICO charge and be chargeable on their own merit. See 22 O.S. 1991, \\u00a7 1408.\\nReading these sections in connection with 22 O.S.1991, \\u00a7 1403(E), we think the language shows a Legislative intent that a single court possess a kind of \\\"pendant venue\\\" to try in one proceeding all crimes, both those which serve as predicate crimes for the RICO violation and those which have been charged separately as substantive crimes, even if those crimes occurred in other counties. We have been unable to find any other jurisdiction which has directly addressed this point. However, we can draw analogies from other jurisdictions to reach this conclusion. See Beattie v. United States, 756 F.2d 91, 103 (D.C.Cir.1984); VMS/PCA Ltd. Partnership v. PCA Partners Ltd., 727 F.Supp. 1167, 1173-74 (N.D.Ill.1989) (under a pendant venue doctrine, federal courts may exercise discretion to hear claims where venue may otherwise be lacking if the claims arise out of a \\\"common nucleus of operative facts\\\" with claims as to which venue is proper; factors governing whether a court should hear a case include whether to do so furthers the goals of judicial economy, convenience and fairness to the litigants.); see also American Trade Partners v. A-1 International Importing, 755 F.Supp. 1292, 1304 (E.D.Pa.1990) (equating RICO venue with that of conspiracy theory)-\\nIn this case it was alleged at trial all crimes charged arose out of a common nucleus of operative facts: the prosecution alleged Appellant and others participated in an enterprise through a pattern of racketeering activity. It was alleged they were a group of persons who associated together as a street gang to commit felonies which in turn would benefit both themselves and the gang. See 22 O.S.1991, \\u00a7 1402(2), (5), (10) and 22 O.S. 1991, \\u00a7 1403.\\nTo allow this kind of \\\"pendant venue\\\" furthers the limited resources of Oklahoma courts. We have, in the name of judicial economy, approved of provisions which allow for one court to conduct one trial to dispose of several issues. See Chapple v. State, 866 P.2d 1213, 1216 (Okl.Cr.1993); Woodruff v. State, 825 P.2d 273, 275 (Okl.Cr.1992); Allen v. District Court of Washington County, 803 P.2d 1164, 1170 (Okl.Cr.1990) (Lane, V.P.J., concurring in part and dissenting in part) (discovery proceedings); Perez v. State, 798 P.2d 639, 640 (Okl.Cr.1990); Roth v. State, 762 P.2d 279, 281 (Okl.Cr.1988); McClellan v. State, 757 P.2d 397, 398 (Okl.Cr.1988); Vowell v. State, 728 P.2d 854, 857 (Okl.Cr.1986); C.R.B. v. State, 638 P.2d 1130, 1132 (Okl.Cr.1982) (juvenile proceedings); Burks v. State, 594 P.2d 771, 772 (Okl.Cr.1979) (appellate level); Lamb v. State, 560 P.2d 583, 588 (Okl.Cr.1977) (continuance during trial). The same is true here.\\nConcerning convenience: the substantive crimes here charged arose in Garvin, Cleveland and Oklahoma counties. The three counties are contiguous; indeed, the same district attorney serves both Garvin and Cleveland counties. Further, combining all activities in one trial made it much more convenient for witnesses, who would be spared the inconvenience of having to testify three different times in three different counties.\\nThat leaves the third factor: fairness to the defendants. Appellant claims he was subjected to multiple prosecutions for the series of events in Garvin County. Although Appellant was tried in Cleveland County for Grand Larceny in the House in the Night Time in CF-93-410, he claims he was also charged in Garvin County for robbery and burglary in connection with the same series of incidents at the Hartley house and laundromat. Appellant has presented a sufficient record to support his claim he was both charged and convicted in Garvin County of robbery by force and fear and first degree burglary, each of which arose out of the same series of events as his grand larceny conviction in Cleveland County. See Carter v. State, F-94-552 (appealing Garvin County case nos. 92-346 and 92-347).\\nAppellant did not raise a double jeopardy argument, and we need not address it on those grounds. Suffice it to say here that allowing multiple trials in more than one county on charges arising out of a singular series of events cannot be considered fair to a defendant. As our discussion above shows, allowing venue in the county in which the RICO acts are charged eliminates the possibility of multiple trials by allowing a single trial under one court. Allowing a single trial is fair to a defendant because he is not forced to defend himself in more than one forum on charges arising from one series of actions; this eliminates the inconvenience to a defendant of incurring additional expenses accrued from multiple trials, and minimizes interference with a defendant's rehabilitation while he is in the custody of the Department of Corrections. Actions by prosecutors here undermine these arguments.\\nAccordingly, because this third factor of fairness is not present here due to Appellant's prosecution in two separate counties for the same act, and under the facts and circumstances of this ease this factor outweighs the other two, we find it necessary to reverse and remand Appellant's Cleveland County conviction for Grand Larceny in the House in the Night Time in CF-93-410, and order that charge dismissed.\\nC.\\nIn summary, so long as a racketeering charge is properly before the trial court, it would facilitate matters for both the prosecution and the defendant to conduct a single trial in which all matters can be adjudicated in a single forum. In this way, a defendant does not have the burden of facing several charges in several different courts. .\\nWe therefore interpret 22 O.S.1991, \\u00a7 1403(E) as allowing a single court to try not only a criminal racketeering charge, but also any substantive charges which relate to the racketeering charge, so long as the racketeering charge is properly before the trial court and the substantive claims arise out of the same common nucleus of operative facts as the racketeering charge. If a court can determine such a proceeding furthers the goals of judicial economy, convenience and fairness to the litigants, as discussed above, this kind of proceeding will serve the broad remedial purposes our Legislature intended by its passage of the Act, and will advance the policies underlying the Act. See 22 O.S. 1991, \\u00a7 1419; Tafflin v. Levitt, 493 U.S. 455, 467, 110 S.Ct. 792, 799, 107 L.Ed.2d 887 (1990).\\nConcerning Appellant's complaint he was denied Due Process of law guaranteed by the Fourteenth Amendment to the United States Constitution, we simply note the United States Constitution \\\"imposes constraints on the exercise of personal jurisdiction, but not on the location of permissible venues.\\\" Clement v. Pehar, 575 F.Supp. 436, 442 (N.D.Ga.1983). \\\"When minimum contacts exist with the relevant sovereign, due process no longer protects a defendant from distant litigation because the location of permissible venues is a matter of sovereign prerogative.\\\" Id. (quoting Federal Trade Commission v. Jim Walter Corp., 651 F.2d 251, 257 (5th Cir.1981)).\\nAccordingly, for the reasons given above, we REVERSE and REMAND Appellant's conviction for Grand Larceny in the House in the Night Time in CF-93-410, and order that charge DISMISSED.\\nD.\\nTo eliminate confusion in future cases, we set forth the following procedure for determining when it is appropriate for a district court to try a defendant for a violation of the Oklahoma Corrupt Organizations Prevention Act and a substantive crime committed in another county which may serve both as a predicate crime for the Act and a substantive crime.\\nAt the conclusion of the preliminary hearing (if one is held), the examining magistrate must, as dictated by statute, determine whether a violation of the Act has been committed and whether there is sufficient cause to believe the defendant has committed that crime. See 22 O.S.1991, \\u00a7 264. If the magistrate determines the prosecution has not met its burden as to the violation of the Act, he or she must hold venue in that county is not appropriate for the trial of any substantive crimes committed in other counties which had as their nexus the Act. If, however, the magistrate rules the defendant must be held to answer for a violation of the Act, he or she must also determine and rule there exists a nexus, or common nucleus of operative facts, between the Act and the substantive crimes which occurred in another county. A determination must also be made at that time whether the three factors enunciated above warrant a single trial for all offenses. Only after such a determination has been made can the prosecution proceed with all crimes in a single venue. Of course, a defendant can elect to waive the magistrate's determination if he wishes to dispose of all such crimes in a single proceeding. The prosecution can appeal a ruling unfavorable to it in the same manner it appeals other unfavorable rulings by a magistrate. See 22 O.S.1991, \\u00a7 1089.1-1089.7. A defendant can proceed in the same fashion as he does from any bindover order of a magistrate. See Sections 491-524 of Title 22.\\nIII.\\nThe charge of Robbery by Force and Fear in CF-93-417 which occurred in Oklahoma County is addressed in Appellant's second proposition. There Appellant claims his right to due process was violated when he was tried on an offense which was different from that on which he was bound over at preliminary hearing.\\nIn CF-93-417, Appellant was charged with Robbery by Force and Fear in violation of 21 O.S.1991, \\u00a7 791. The record shows at the conclusion of the preliminary hearing, the magistrate did not find probable cause to believe that crime was committed; however, in the bindover order, he did find sufficient evidence to support a trial on a charge of knowingly concealing stolen property. Despite this order, Appellant was tried on the original robbery charge.\\nThe State concedes \\u2014 and we agree \\u2014 Appellant was improperly tried on the charge of robbery and that reversal is proper, but argues he can be retried in Cleveland County on the proper charge, citing Thrasher v. State, 734 P.2d 324 (Okl.Cr.1987) and Beaird v. Ramey, 456 P.2d 587 (Okl.Cr.1969).\\nWe are not persuaded by the State's argument. Although venue in Cleveland County may have been appropriate so long as a valid racketeering charge was also before the court, there is no basis for venue in Cleveland County in the absence of that racketeering charge. When the jury acquitted Appellant of the racketeering charge, there was no longer a basis for venue in Cleveland County for reasons given in proposition one, above. Accordingly, Appellant's conviction in CF-93-417, Robbery by Force and Fear, must be reversed and remanded.\\nIV.\\nOnly one other proposition warrants extended consideration. In his seventh proposition, Appellant contends his convictions for both second degree forgery and obtaining property by false pretenses violate the prohibitions against double jeopardy and double punishment and require that one of the convictions be reversed.\\nThe evidence shows Appellant and a companion entered the Dillard's store at Sooner Fashion Mall, where Appellant picked up items of clothing, went to the register, presented Mr. Clark's credit card, signed Mr. Clark's name to the credit slip, and walked out with the merchandise. These actions served as the basis for both charges.\\nWe agree reversal of one conviction is warranted, based on the principle of law that a defendant cannot be \\\"punished twice for one criminal course of conduct where his offenses were incident to one objective.\\\" Hale v. State, 888 P.2d 1027, 1029 (Okl.Cr.1995); Id. at 1031 (Lumpkin, J., concurring in result). Clearly, such is the case here. We order that the conviction in CF-93-416, Obtaining Merchandise by False Pretenses, be REVERSED and REMANDED with instructions to DISMISS.\\nV.\\nAppellant also presents other propositions of error which we have reviewed and to which we find no merit. They are:\\nIII. Mr. Carter was denied a fair trial because the district judge who issued the search warrant also presided over the trial, in violation of 22 O.S.1991, \\u00a7 576;\\nIV. Evidence used against Mr. Carter at trial violated his Fourth Amendment rights against improper searches and seizures;\\nV. The trial court erred in allowing Officer Cook to testify before the jury regarding hearsay statements allegedly given by Mr. Clark and Mr. Hickman;\\nVI. Mr. Carter was denied his right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments;\\nVIII. The evidence was insufficient to sustain Mr. Carter's convictions.\\nAccordingly, Appellant's conviction for Second Degree Forgery in Case No. CF-93-412 is AFFIRMED. For the reasons given above, Appellant's convictions for Grand Larceny in the House in the Night Time in Case No. CF-93 \\u2014 410 and Obtaining Merchandise by False Pretenses in Case No. CF-93-416 are ordered REVERSED and REMANDED with instructions to DISMISS. Appellant's conviction for Robbery by Force and Fear in Case No. CF-93-417 is ordered REVERSED and REMANDED for a NEW TRIAL in Oklahoma County, should the prosecution desire to pursue the charge.\\nJACK LOUIS CARTER, Appellant, was tried by a jury in the District Court of Cleveland County and convicted of the following crimes in the following eases and received the following sentences: CF-93-410, Grand Larceny in the House in the Night Time (21 O.S.1991, \\u00a7 1707) (five years); CF-93-412, Second Degree Forgery (21 O.S. 1991, \\u00a7 1585(2)) (three years); CF-93-416, Obtaining Merchandise by False Pretenses (21 O.S.1991, \\u00a7 1541.1) (six months); CF-93-417, Robbery by Force and Fear (21 O.S. 1991, \\u00a7 791) (eight years). The trial court ordered all sentences to be served consecutively. AFFIRMED in part and REVERSED in part.\\nJOHNSON, P.J., CHAPEL, V.P.J., STRUBHAR, J., concur.\\nLANE, J., concurs in results.\\n. Also tried at the same time were Terry Banner and Eric Stevenson. All charges against Stevenson were dismissed when the court sustained a demurrer to the evidence at the close of the prosecution's case. Banner was convicted of some crimes as well; his appeal is not a part of this record.\\n. Owing to the unique nature of the case before us, this Court directed oral argument be heard. Pursuant to a motion by Richard Sitzman, the assistant district attorney who prosecuted the case in the district court, this Court (over Appellant's late objection) gave him leave to participate in the oral argument. Such argument was held on February 6, 1996. Following oral argument, both sides were given an opportunity to file supplemental briefs. Appellant's brief was filed in a timely manner, and was considered by this Court. Appellee's supplemental brief was filed late, along with a motion by Mr. Sitzman for leave to file it out of time which was devoid of any good reason for the late filing. Accordingly, his motion for leave to file his brief out of time is DENIED, and his supplemental brief was not considered by this Court in reaching its decision.\\n. That section reads:\\nCriminal penalties and fines pursuant to the Oklahoma Corrupt Organizations Prevention Act are supplemental and not mutually exclusive, except when so designated, and shall not preclude the application of any other criminal or civil remedy pursuant to any other provision of the law.\\n. Mr. Hartley went to the laundromat to empty the coin machines. While he was out there, he was accosted by an associate of Appellant's who took not only the coins, but also Mr. Hartley's wallet. This gave rise to a Garvin County conviction of Robbery by Force and Fear in Case No. CF-92-346. The burglary charge stemmed from the entry of Appellant and another associate into the house while the youth distracted Mrs. Hartley at the front door. It was after this entry (which gave rise to a charge of first degree burglary, CF-92-347) that Appellant stole money from the house after Mrs. Hartley fled the house. Appellant was tried and convicted in the Garvin County case in October 1993, and was sentenced on those crimes on February 16, 1994. He was tried in Cleveland County in November 1993, and was sentenced there on February 11, 1994.\\n. We do not intend to hold by this discussion that a defendant cannot be tried for a substantive crime in the county where it occurred merely because that substantive crime could have served as a basis for a RICO charge in another county. Rather, we intend this discussion to be limited to a situation where one series of actions may give rise to several different criminal charges, or which might run afoul of the legislative prohibition against multiple punishments as codified in Section 11 of Title 21.\\n. We find no basis for prohibiting the State from trying Appellant in an appropriate venue, here Oklahoma County. However, we remind the prosecution of a very basic fact: it must prove beyond a reasonable doubt that the crime occurred. Given that both of the prosecution's major witnesses are now dead (one was dead even before Appellant's trial in Cleveland County), it would appear the prosecution may elect not to pursue a retrial of this charge. However, because of the peculiar circumstances surrounding this case, we cannot preclude the prosecution from attempting to establish its case.\"}"

okla/10350234.json

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+"{\"id\": \"10350234\", \"name\": \"Hector MARTINEZ, M.D., Appellant, v. STATE of Oklahoma, ex rel. OKLAHOMA STATE BOARD OF MEDICAL LICENSURE AND SUPERVISION, Appellee\", \"name_abbreviation\": \"Martinez v. State ex rel. Okalahoma State Board of Medical Licensure & Supervision\", \"decision_date\": \"1993-04-13\", \"docket_number\": \"No. 79764\", \"first_page\": \"173\", \"last_page\": \"177\", \"citations\": \"852 P.2d 173\", \"volume\": \"852\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Civil Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T02:11:27.039785+00:00\", \"provenance\": \"CAP\", \"judges\": \"HANSEN, C.J., and HUNTER, J. concur.\", \"parties\": \"Hector MARTINEZ, M.D., Appellant, v. STATE of Oklahoma, ex rel. OKLAHOMA STATE BOARD OF MEDICAL LICENSURE AND SUPERVISION, Appellee.\", \"head_matter\": \"Hector MARTINEZ, M.D., Appellant, v. STATE of Oklahoma, ex rel. OKLAHOMA STATE BOARD OF MEDICAL LICENSURE AND SUPERVISION, Appellee.\\nNo. 79764.\\nCourt of Appeals of Oklahoma, Division No. 3.\\nApril 13, 1993.\\nCharles Robert Cox, Tulsa, for appellant.\\nDaniel J. Gamino, Daniel J. Gamino & Associates, P.C., Oklahoma City, for appel-lee.\", \"word_count\": \"1985\", \"char_count\": \"12797\", \"text\": \"MEMORANDUM OPINION\\nBAILEY, Presiding Judge:\\nHector Martinez, M.D., (Doctor), seeks review of an order of State of Oklahoma, ex rel. Oklahoma State Board of Medical Licensure and Supervision (Board) denying Doctor's application for medical licensure. In this appeal, Doctor asserts Board's error in denying his application (1) Doctor having presented evidence of qualification for medical licensure by endorsement in the State of Oklahoma, (2) Board having applied Board rules which impermissibly conflict with statutory requirements for medical licensure, (3) Doctor having passed a national test with a score not in derogation of Board rules, and (4) violating Doctor's substantive due process rights.\\nDoctor graduated from an accredited medical school in 1981, subsequently applied for licensure in the State of New York, and Doctor took a nationally recognized medical licensing examination. After at least three efforts, Doctor eventually passed all parts of the FLEX test with a satisfactory \\\"factored\\\" score, and obtained licensure in New York. Doctor also subsequently obtained licensure in the states of Maryland and New Mexico.\\nDoctor then applied for licensure by endorsement in the State of Oklahoma, setting forth evidence of passage of the FLEX test and his valid licenses in other states. Board's Director of Licensure denied his application, citing a Board Rule which mandates eligibility for licensure based on a \\\"score of seventy-five percent (75%) or higher.on each part of the [FLEX] examination,\\\" but specifically disallowing \\\"the practice of 'factoring' grades, or combining the highest scores from parts of the examination taken in different sittings.\\\" Doctor requested review before the Board en banc, which after hearing Doctor's argument and testimony of Doctor's character witnesses, voted to deny Doctor's application. Doctor appeals.\\nDecisions of the Board stand reviewable under the provisions of the Oklahoma Administrative Procedures Act (OAPA), and we therefore apply the standards of review mandated by OAPA directly to the Board decision. Under those standards we review the administrative decision for violation of constitutional rights, excess of authority, unlawful procedures, other pure errors of law, or arbitrary administrative action. On fact questions, \\\"we [look] at the entire record to determine whether the result was supported by substantial evidence.\\\"\\nIn his first proposition, Doctor asserts Oklahoma statute permits medical licen-sure by three alternate avenues; passage of the medical licensure test administered in Oklahoma, passage of a nationally recognized medical licensure test administered elsewhere, or by endorsement, i.e., in recognition of a valid license issued in another state. In a related argument under his second proposition of error, Doctor argues that the Board Rule prohibiting \\\"factored\\\" scores impermissibly conflicts with the Oklahoma statute on point, both the statute and another Board rule clearly recognizing licensure by endorsement as- an alternative to licensure by examination. In his third proposition, Doctor asserts presentation of evidence of his passage of the FLEX examination (on subsequent retesting after initially receiving substandard scores on one or more parts) without \\\"factoring.\\\" Thus, says Doctor, because he applied for Oklahoma licensure by endorsement, not by examination, his passing score on the FLEX tests taken in New York, with or without \\\"factoring,\\\" is of no consequence, and the Board not only erred as a matter of law, but also acted arbitrarily and in disregard of the evidence in denying his application for licensure.\\nWe disagree with Doctor in all three particulars. Both Oklahoma statute and Board rules couch eligibility for medical licensure on education and testing of no less rigor than that required by Oklahoma law, notwithstanding an applicant's admission in another state. In the present case, Doctor's FLEX test scores duly transmitted to the Board clearly reflect a \\\"factored\\\" passing score, contrary to the explicit rules of the Board, and arguably contrary to statute mandating passage of all parts of the FLEX test without \\\"factoring.\\\" We consequently discern no impermissible conflict between the relevant statutes and the Board rules as alleged.\\nMoreover, the Board is granted broad police power to supervise the practice of medicine in this state, including the power to promulgate rules governing the admission to practice, and requiring the exercise of considerable discretion to which we ordinarily defer. Considering our previous recognition of less rigorous scoring of Doctor's FLEX test(s), we cannot say the Board abused its discretion or acted arbitrarily in denying Doctor's application for licensure by endorsement.\\nIn his last proposition, Doctor alleges violation of his substantive due process rights by denial of his application for licen-sure by endorsement. On review of such constitutional questions, we must determine:\\n[W]hether the classification which forms the basis for the differentiation is neither arbitrary nor capricious, and bears a reasonable relation to the object to be accomplished.\\nTexas Oklahoma Exp. v. Sorenson, 652 P.2d 285, 289-290 (Okl.1982).\\nThus, considering our Supreme Court's previous recognition of (1) State's interest in the regulation of the medical profession \\\"in the interest of the protection of its citizens,\\\" (2) Board's \\\"constitutionally authorized . police powers\\\" \\\"to review the qualifications of persons entering the medical profession in Oklahoma,\\\" and (3) the Court's rejection of equal protection attacks on Board's powers under the same analysis applied to due process claims, we find no violation of Doctor's due process rights as alleged in the present case.\\nThe order of Board denying Doctor's application for licensure by endorsement is therefore AFFIRMED.\\nHANSEN, C.J., and HUNTER, J. concur.\\n. Doctor took the Federation of State Medical Board Licensing Examination (FLEX).\\n. A \\\"factored\\\" score is one which takes into account the examinee's scores on all parts of the FLEX test, and may result in a passing score on the entire test, although the examinee may not have achieved a passing score on each of the multiple parts of the test. That is to say that an examinee may score below 75% required for passage on one part, but score above 75% on another part, and still obtain a passing score for the entire test.\\n.Medical licensure by \\\"endorsement\\\" allows li-censure in Oklahoma in recognition of medical licensure in other states.\\n. Rule 435:10-3-5, Rules of the Oklahoma Board of Medical Licensure and Supervision, provides:\\nLicensure by Examination (a) Examination Scores. Any person seeking licensure by taking the [FLEX test] . must compile an overall average score of seventy-five percent (75%) or higher on each part of the examination. When components are taken separately component I must be passed before component II is taken. When other retake requirements or limitations are established by this Board, both components must be passed with[in] a seven (7) year period. The practice of \\\"factoring\\\" grades, or combining the highest scores from parts of the examination taken in different sittings is specifically not allowed.\\nIn this regard, Oklahoma statute contains a similar provision:\\nThe applicant, having been admitted to the examination in those subjects required for graduation from approved medical schools and such other subjects as may be required by the Board, shall be required to attain an average grade of seventy-five percent (75%) in the fields of basic and clinical medical information and in the application of his knowledge in clinical medical situations. Should the applicant's grade fall below an average of seventy-five percent (75%) on all examinations, reexamination in all or part of the examination shall be required....\\n59 O.S.1991 \\u00a7 494.\\n. 59 O.S. \\u00a7 513 (Board given \\\"quasi-judicial powers . for purpose of . suspending the license of physicians and surgeons of this state, and appeals from its decisions shall be taken to the Supreme Court of this state.\\\")\\n. State v. Bridwell, 592 P.2d 520 (Okl.1979); 75 O.S.1991 \\u00a7 250 et seq.\\n. Seely v. Oklahoma Horse Racing Commission, 743 P.2d 685 (Okl.App.1987); 75 O.S. \\u00a7 322.\\n. 75 O.S. \\u00a7 322(l)(a-d, f).\\n. DiMauro v. Oklahoma State Board of Medical Examiners, 769 P.2d 759, 762 (Okl.1989); 75 O.S. \\u00a7 322(1)(e).\\n. Section 493 of Title 59, Oklahoma Statutes (1991), provides in pertinent part:\\n(a) An applicant, to be eligible for licensure to practice medicine and surgery in the State of Oklahoma, must present satisfactory evidence of identification; that he is of good moral character and is not addicted to habitual intemperance or the use of habit-forming drugs; that he has not been convicted of a felony or a crime involving moral turpitude; that he has never been guilty of unprofessional conduct .; that his medical license has never been revoked within any other state for cause, and that he is not suffering with a serious communicable disease; and that he has paid the fee in the amount set by rules of [Board]....\\nIt is further provided that the applicant must: (a) submit satisfactory evidence that he is a graduate of a legally chartered medical college or university, the requirements of which for graduation, ., in no particular less than those prescribed by the . Association of American Medical Colleges and the . American Medical Association; or (b) submit satisfactory evidence that he has passed such examinations to determine his educational qualifications to take the regular examination for licensure to practice medicine and surgery.\\nApplicants may become eligible to apply for a license by: (1) passing the licensing examination(s) administered by the State of Oklahoma, or (2) endorsement of a medical license held in a state of the United States, the District of Columbia, any territory of the United States, Canada, Great Britain, or (3) passing the examination of the National Board of Medical Examiners. Applicants may become eligible to apply for licensure by achieving a score of seventy-five percent (75%) or higher on every examination offered by the Board and administered in the State of Oklahoma.\\nAn applicant may become eligible to apply for licensure by endorsement by presenting evidence of achieving a grade of seventy-five percent (75%) on a examination prepared by the National Board of Medical Examiners or such other examination approved by the Board but not administered in the State of Oklahoma or the holding of a license in another state, District of Columbia, any territory of the United States, Canada, or Great Britain, when such reports are properly transmitted to the Board and verified.\\n. 59 O.S. \\u00a7 493(a).\\n. Rule 435:10-3-4 provides:\\nLicensure by Endorsement (a) Reciprocity. Oklahoma does not have a direct reciprocal agreement with any State, except as authorized by 59 O.S.Supp.1983, Section 493(a), or any successor statute.\\n(b) Basis of licensure. The Board may license applicants holding medical licenses in other states, the District of Columbia, territories of the United States, Canada or England, or scores endorsed by the National Board of Medical Examiners, or another state or jurisdiction, when such records are properly transmitted to this Board; provided, that the legal requirements of the endorsing medical board shall have been, at the time of issuing such license, of no less degree in any particular than the requirements of this Board at the time when said license was issued....\\n. 59 O.S. \\u00a7 493(a); Rules 435:10-3-4, 5.\\n. Because 59 O.S. \\u00a7 494 requires passage of all parts of an examination with a score of seventy-five percent (75%), and retesting \\\"in all or part of the examination\\\" if the applicant's \\\"grade fall[s] below . seventy-five percent (75%) on all examinations,\\\" it appears, in our opinion, that \\u00a7 494 arguably disallows \\\"factoring\\\" as does the Board Rule.\\n. DiMauro, 769 P.2d at 761, 762-63.\\n. DiMauro, 769 P.2d at 761, 762-63; Texas Oklahoma Exp., 652 P.2d at 289-290 (\\\"In testing the validity of a state statute which differentiates in its treatment of one group of individuals compared with its treatment of another group as against the constitutional prohibition against taking property without due process of law, against denial of equal protection of the laws, and against the enactment of special as distinguished from general laws, a common test is applied\\\").\"}"

okla/10358205.json

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+"{\"id\": \"10358205\", \"name\": \"Francis WOODROW, Appellant, v. UNIVERSITY OF OKLAHOMA BOARD OF REGENTS, Appellee\", \"name_abbreviation\": \"Woodrow v. University of Oklahoma Board of Regents\", \"decision_date\": \"1993-09-14\", \"docket_number\": \"No. 79397\", \"first_page\": \"1009\", \"last_page\": \"1011\", \"citations\": \"861 P.2d 1009\", \"volume\": \"861\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Civil Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T20:37:48.201835+00:00\", \"provenance\": \"CAP\", \"judges\": \"HUNTER, P.J., concurs.\", \"parties\": \"Francis WOODROW, Appellant, v. UNIVERSITY OF OKLAHOMA BOARD OF REGENTS, Appellee.\", \"head_matter\": \"Francis WOODROW, Appellant, v. UNIVERSITY OF OKLAHOMA BOARD OF REGENTS, Appellee.\\nNo. 79397.\\nCourt of Appeals of Oklahoma, Division No. 3.\\nSept. 14, 1993.\\nJose Gonzalez, Purcell, for appellant.\\nLawrence E. Naifeh, Fred Gipson, Kirk Ockershauser, and Susan Seamans, University of Oklahoma, Office of Legal Counsel, Norman, for appellee.\", \"word_count\": \"879\", \"char_count\": \"5760\", \"text\": \"OPINION\\nBAILEY, Judge:\\nFrancis Woodrow (Woodrow) seeks review of an order of the Trial Court denying Woodrow's motion for rehearing by which Woodrow requested reconsideration of the Trial Court's previous order dismissing Woodrow's action for wrongful termination of employment against the University of Oklahoma Board of Regents (Board). Herein, Woodrow asserts substantial compliance with the notice provisions of the Oklahoma Governmental Tort Claims Act (Act), 51 O.S.1991 \\u00a7 151 et seq., requiring reversal of the Trial Court's finding to the contrary.\\nOn January 21, 1991, Woodrow was fired from her employment at the University of Oklahoma. On April 8, 1991, Woodrow notified Board by letter of her claim for wrongful termination of her employment, and Board received the letter on April 11, 1991.\\nIn December 1991, having no response to her letter, Woodrow commenced the instant action against Board and obtained service of summons only on Board. In her petition, Woodrow claimed she reported embezzlement by her supervisor, resulting in harassment by her Office Manager and ultimately wrongful termination of her employment in contravention of public policy which encourages reporting of wrongdoing.\\nBoard subsequently moved to dismiss, asserting Woodrow's failure to comply with the notice-of-claim provisions of the Act. Woodrow responded, admitting failure to strictly comply, but asserted substantial compliance, Board having imparted actual notice of the claim to at least one of the statutorily mandated recipients thereof. The Trial Court found Woodrow's notice insufficient and dismissed the case. Woodrow moved for rehearing within ten days, which the Trial Court also denied.\\nIn this appeal, Woodrow again argues substantial compliance with the notice provisions of the Act. Board responds, asserting strict compliance required.\\nIn accord with previous decisions of the Oklahoma Supreme Court, we recently held \\\"substantial compliance with the [notice-of-claims] provisions of the Act adequate,\\\" and specifically found notice to only the offending agency constituted substantial compliance with the notice provisions of the Act. In the present case, and although Woodrow did not give notice of her claim to all entities prescribed by the Act, she nevertheless served notice of her claim on Board, who in turn provided actual notice thereof to the Attorney General, one of the statutorily mandated entities entitled to notice under the Act. Under these facts and circumstances, we discern no prejudice \\\"by the manner in which notice was given and received or that the purpose underlying the Act's notice requirements were frustrated by the manner of notice.\\\". We consequently hold Woodrow's notice in substantial compliance with the Act, and sufficient to withstand Board's motion to dismiss.\\nThe orders of the Trial Court denying Woodrow's motion to reconsider and granting Board's motion to dismiss are therefore REVERSED, and the cause REMANDED for further proceedings.\\nHUNTER, P.J., concurs.\\nGARRETT, J., dissents.\\n. Woodrow subsequently served an alias summons on the State Attorney General.\\n. See, Gunn v. Consolidated Rural Water and Sewer Dist. No. 1, 839 P.2d 1345, 1350-1351 (Okl.1992); Vannerson v. Bd. of Regents of Univ. of Oklahoma, 784 P.2d 1053, 1055 (Okl.1989); Burk v. K-Mart, 770 P.2d 24, 2x (Okl.1989).\\n. Section 156(C) of the Act provides:\\nA claim against the state shall be in writing and filed with the Office of the Risk Management Administrator of the Purchasing Division of the Office of Public Affairs who shall immediately notify the Attorney General and the agency concerned and conduct a diligent investigation of the validity of the claim within the time specified for approval or denial of claims by Section 157 of [the Act].\\n. See, Rule 1.12(c)(1), Rules of Appellate Procedure in Civil Cases, 12 O.S.1991, Ch. 15, App. 2.\\n. Ruffin v. Oklahoma Department of Human Services, 852 P.2d 793 (Okl.App.1993).\\nSee also, Walker v. City of Moore, 836 P.2d 1289, 1293 (Okl.1992) (Husband's notice of claim in substantial compliance with the Act sufficient to preserve Wife's claim for damages, notwithstanding Wife's failure to give notice of claim to offending political subdivision); Lucas v. Ind. Public School Dist. 35 of Holdenville, 674 P.2d 1131, 1133 (Okl.1983) (written notice to insurance carrier within one week of accident constitutes substantial compliance; school district not prejudiced by notice as was given); Maxwell v. Ind. School Dist. 32 of Okfuskee County, 672 P.2d 1179, 1180-1181 (Okl.App.1983) (oral notice to school superintendent and principal of \\\"accident\\\" not notice of \\\"claim\\\"; no substantial compliance with notice requirement); Conway v. Ohio Casualty Ins. Co., 669 P.2d 766, 767 (Okl.1983) (notice of claim to offending entity's insurance carrier held sufficient under the Act); Graves v. Rose, 663 P.2d 733, 734 (Okl.1983) (notice by filing of suit almost two years after date of injury held untimely and insufficient under the Act); Duesterhaus v. City of Edmond, 634 P.2d 720, 722 (Okl.1981) (verbal notice to City's attorney who later engaged in settlement negotiations with plaintiff substantially complied with notice requirement); Reirdon v. Wilburton Bd. of Education, 611 P.2d 239, 240 (Okl.1980) (notice to school board president instead of school board clerk as prescribed by Act held in substantial compliance).\\n. Ruffin, 852 P.2d at 795.\"}"

okla/10358361.json

@@ -0,0 +1 @@
+"{\"id\": \"10358361\", \"name\": \"GRACE PETROLEUM CORPORATION and Swift Energy Company, Appellants, v. The CORPORATION COMMISSION OF THE STATE of Oklahoma and Helmerich and Payne, Inc., Appellees\", \"name_abbreviation\": \"Grace Petroleum Corp. v. Corporation Commission\", \"decision_date\": \"1992-01-21\", \"docket_number\": \"No. 76061\", \"first_page\": \"195\", \"last_page\": \"197\", \"citations\": \"839 P.2d 195\", \"volume\": \"839\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Civil Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T19:47:16.472571+00:00\", \"provenance\": \"CAP\", \"judges\": \"GARRETT, P.J., and ADAMS, J., concur.\", \"parties\": \"GRACE PETROLEUM CORPORATION and Swift Energy Company, Appellants, v. The CORPORATION COMMISSION OF THE STATE of Oklahoma and Helmerich and Payne, Inc., Appellees.\", \"head_matter\": \"GRACE PETROLEUM CORPORATION and Swift Energy Company, Appellants, v. The CORPORATION COMMISSION OF THE STATE of Oklahoma and Helmerich and Payne, Inc., Appellees.\\nNo. 76061.\\nCourt of Appeals of Oklahoma, Division No. I.\\nJan. 21, 1992.\\nRehearings Denied April 27, 1992.\\nCertiorari Denied Oct. 28, 1992.\\nJames S. Drennan, Oklahoma City, for appellant Grace Petroleum Corp.\\nGordan D. Ryan and, Sharon Taylor Thomas, Oklahoma City, for appellant Swift Energy Co.\\nKent Douglas Talbot and Leslie Wilson Pepper, Oklahoma City, for appellee Oklahoma Corp. Com\\u2019n.\\nRichard L. Gore and Martha Martin, Oklahoma City, for appellee Helmerich & Payne, Inc.\", \"word_count\": \"969\", \"char_count\": \"6187\", \"text\": \"BAILEY, Judge:\\nAppellants Grace Petroleum Corporation and Swift Energy Company (Grace, Swift or collectively Appellants) seek review of an order of Appellee Oklahoma Corporation Commission (Commission) sitting en banc clarifying previous pooling orders issued in 1981 and 1983, thereby holding the previous orders as having pooled the subject units by the wellbore. Herein, Appellants contend (in essence) that the Commission has authority to pool only by the unit, not by the wellbore, and that the Commission exceeded its jurisdiction in construing the previous orders as pooling by the wellbore.\\nIn 1981, on application of Amoco Production Company (Amoco), Commission entered Order No. 191799, thereby pooling interests in certain common sources of supply underlying all of Section 27, Township 10 North, Range 12 W.I.M., in Caddo County, Oklahoma. Appellee Helmerich & Payne, Inc. (H & P) elected not to participate therein, but chose to receive one-eighth (\\u215b) overriding royalty. Amoco, as operator, thereafter drilled the Warren King No. 1 well to the deepest formation in the pooled unit, and obtained production from a shallower stratum. Appellant Swift subsequently acquired H & P's interest in the Warren King No. 1.\\nIn 1983, on application of Appellant Grace, Commission entered a second pooling order, Order No. 246817, pooling the same common sources of supply under \\u00a7 27 as those covered by the 1981 Commission order, but without mention of the first order. H & P elected to participate, and Grace drilled the Mogg-Hawkins No. 1-27 well to the deepest formation, and obtained production from a shallower stratum.\\nIn 1989, H & P filed the subject application, thereby requesting \\\"clarification\\\" of the two prior pooling orders to reflect pooling by the wellbore and not by the unit. Both the Administrative Law Judge and the Appellate Administrative Law Judge for Commission found (1) the first pooling order, Order No. 191799, pooled the unit as a unit, and (2) the second pooling order should not be disturbed for equitable reasons, i.e., that H & P had, in fact, participated in the second well, thereby approving wellbore pooling. The Commission en banc disagreed, finding the prior pooling orders ambiguous, and after hearing evidence, construed the prior orders as having pooled the interests of the owners by the wellbore. Appellants appeal as aforesaid.\\nBoth Appellants and Appellees rely on Amoco Production Company v. The Corporation Commission of the State of Oklahoma, 751 P.2d 203 (Okl.App.1986) (approved for publication as modified by the Supreme Court, December 16, 1987) (hereinafter Amoco I) as supportive of their respective positions; however, each disagrees on the application of the rule announced therein. In Amoco, the Court of Appeals held the Commission without authority to pool by the wellbore (rather than by the unit) under 52 O.S.1981 \\u00a7 87.-1(e). Amoco, 751 P.2d at 206; see also, Amoco Production Company v. The Corporation Commission of the State of Oklahoma, 752 P.2d 835 (Okl.App.1987) (approved for publication by the Supreme Court, March 21, 1988) (Amoco II). However, this Court also held:\\nThis ruling to the effect that section 87.1 may be read only to authorize the forced pooling of working interests on a unit wide basis rather than on an individual well bore basis, because the ruling has not been clearly foreshadowed and because of the inequity of applying the rule to orders which have now become final and on which the parties involved have expended funds in reliance on the validity of the orders, shall be given effect in this case, and prospectively, in all matters where the order of the Corporation Commission in question has not become final as of the date of mandate in this case. (Citations omitted).\\nAmoco I, 751 P.2d at 208.\\nIn that regard, we read this pronouncement regarding \\\"prospective\\\" application as absolutely proscribing entry of wellbore pooling orders from and after the date of that opinion. See also, Amoco II, 752 P.2d at 837.\\nAs applied to the present case, therefore, it appears clear to this Court that Commission, in \\\"clarifying\\\" the previous pooling orders, approved wellbore pooling of the subject unit wells, contrary to the proscription of Amoco I. The previous orders allegedly in need of \\\"clarification\\\" unequivocally pool the subject mineral interests as a unit, and do not, even by implication, appear to allow or anticipate pooling by the wellbore. While we believe Commission clearly retains the power to construe and/or clarify its previous orders, Commission may not consider extrinsic evidence to create ambiguity in or to construe its previous orders. Cf., 52 O.S.1981 \\u00a7 112; with, Phillips Petroleum Co. v. Corporation Commission, 482 P.2d 607 (Okl.1971) (mere change in interpretation by Commission insufficient to justify amendment of previous spacing order; absent proof of substantial change of condition or knowledge of conditions since entry of previous order, Commission without authority to amend or modify previous order). We therefore find the previous, final and unap-pealed pooling orders unambiguous and impervious to modification by \\\"clarification,\\\" and Commission may not circumvent the wellbore proscription announced in Amoco I. To hold otherwise would be to open the door to avoidance of the wellbore proscription by the mere allegation of ambiguity.\\nHaving so held, we need not address the remaining allegations of error. The order of the Corporation Commission is therefore\\nREVERSED.\\nGARRETT, P.J., and ADAMS, J., concur.\"}"

okla/10371319.json

@@ -0,0 +1 @@
+"{\"id\": \"10371319\", \"name\": \"Michael QUERI, Appellant, v. MIDWEST CITY MEMORIAL HOSPITAL, and John P. Clemons, M.D., Appellees\", \"name_abbreviation\": \"Queri v. Midwest City Memorial Hospital\", \"decision_date\": \"1992-10-06\", \"docket_number\": \"No. 77672\", \"first_page\": \"688\", \"last_page\": \"691\", \"citations\": \"839 P.2d 688\", \"volume\": \"839\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Civil Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T19:47:16.472571+00:00\", \"provenance\": \"CAP\", \"judges\": \"ADAMS, P.J., and GARRETT, J., concur.\", \"parties\": \"Michael QUERI, Appellant, v. MIDWEST CITY MEMORIAL HOSPITAL, and John P. Clemons, M.D., Appellees.\", \"head_matter\": \"Michael QUERI, Appellant, v. MIDWEST CITY MEMORIAL HOSPITAL, and John P. Clemons, M.D., Appellees.\\nNo. 77672.\\nCourt of Appeals of Oklahoma, Division No. 1.\\nOct. 6, 1992.\\nRichard J. Henke, Jr., Oklahoma City, for appellant.\\nGeorge W. Pauli, Jr., Joseph K. Goerke, Oklahoma City, for appellee, John P. Clemons.\\nRobin A. Wiens, Oklahoma City, for ap-pellee, Midwest City Hosp.\", \"word_count\": \"1307\", \"char_count\": \"7774\", \"text\": \"MEMORANDUM OPINION\\nJONES, Judge:\\nThe sole error to be reviewed in this appeal is the question of the propriety of the trial court's ruling granting summary judgment to the Defendant-Appellees in this medical malpractice action filed in the District Court of Oklahoma County. The motion was granted on the basis that the statute of limitations had run on the cause of action plead in the Plaintiff's petition.\\nAppellees asked that this appeal be dismissed in their Response to the Petition in Error for failure to file a Petition in Error in the form prescribed by Rule 1.16 of the Rules of Appellate Procedure in Civil Cases within thirty days of judgment. The Petition in Error was filed within thirty days. The dismissal request is based upon the form of the document alone. The dismissal motion was deferred by the Supreme Court until the cause was decided on the merits. Appellees did not brief the point during the briefing cycle, and as the Petition in Error is not fatally defective, the objection going to the form of the document is deemed waived at this time.\\nAppellee, Dr. Clemmons, surgically treated Appellant, Michael Queri, on the premises of the Midwest City Hospital on May 19, 1985, for a laceration to the right forearm and hand. This injury was caused by broken glass from a picture frame. Later, that forearm and right wrist began to demonstrate pain and numbness, and Appellant sought medical treatment in New York on November 25, 1987. On that date he was examined by Dr. Bersani and Dr. Scrivani. Dr. Scrivani's radiologist report concluded \\\"there is a radiopaque foreign body glass on the ulnar side of the right proximal forearm\\\". On December 2,1987, Appellant saw Dr. Short, Bersani's partner, and was informed the foreign body in his arm was presumably glass. After this visit, Appellant moved back to Oklahoma with his father where he went to Dr. Rayan. Dr. Rayan saw Appellant on December 24, 1987. The patient history portion of the medical record of this visit reveals that Dr. Short had previously informed Mr. Queri of the glass revealed by x-ray. More importantly, this report also stated that Appellant \\\"would like to have the piece of glass removed\\\". The nerve injury caused by the glass was discussed at that time and it was decided repair of the nerve would only be undertaken if it was determined to be feasible during the removal procedure. The glass was removed and the ulnar nerve damage was determined to be not repairable on January 11, 1988.\\nThe petition was filed on January 10, 1990, alleging Appellees failed to properly treat Appellant when the laceration was repaired on May 19, 1985. That petition alleged the fact that a piece of glass was left in Appellant's forearm and was discovered on or about January 11, 1988; and, the negligent treatment given him was the failure to remove all the glass in 1985.\\nThe Appellee-Defendants filed a Motion For Summary Judgement which contends the statute of limitations bars the prosecution of this action by reason of the fact that the Plaintiff-Appellant knew or should have known of the injury which is the subject of this action. Title 76 O.S. 1991 \\u00a7 18, states in part:\\nAn action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state, whether based on tort, breach of contract or otherwise, arising out of patient care, shall be brought within two (2) years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of; .\\nThe correct reading of Reynolds v. Porter, 760 P.2d 816 (Okl.1988), at pp. 820, 821, demonstrates the term injury is here used to denote damage or harm occurring as a result of a negligent act.\\nThe parties' positions on the issue on the propriety of summary judgment in the trial court and on appeal correspond. Appellees contend the facts previously outlined demonstrate Appellant knew, or at least should have known, that treatment he received during the 1985 operation was the cause of the later problems with his forearm and hand more than two years before this action was filed. Appellant takes the position that until the second operation he did not know the problem was traceable to the first surgery. He counters the Motion For Summary Judgment with an Affidavit which asserts that even as late as December 24, 1987, Dr. Rayan did nothing more than confirm the presence of some foreign body in the right forearm. This doctor concurred with the previous doctors' findings that because of the medical history he related, the two most likely possibilities were either a bone chip or a sliver of glass.\\nAppellant's argument, when summarized, posits that his treating physicians guessed, or made assumptions concerning the foreign body, based upon their patient's medical history. It is contended the aforementioned statute of limitations cannot be applied to this case unless the statute is construed to mean something amounting to \\\"guessed or should have guessed, assumed or should have assumed\\\". Appellant states the language in the statute \\\"knew or should have known\\\" cannot be applied to this factual scenario.\\nAppellant correctly notes that a motion for judgment where the facts are not controverted, and made under Rule 13, is not properly granted where there are controverted facts which require resolution by the trier of fact, and if there is a substantial controversy as to one material fact, the motion should be denied. Here the one material fact in controversy is alleged to be when the patient became aware, or reasonably should have become aware, that the injury or condition was attributable to the failure to remove all the glass in the first surgery. For purposes of this appeal it is assumed that the Appellant knew on December 24, 1987, only that the foreign object in his arm was either a bone chip or a piece of glass. Whether or not the foreign object was a bone chip or a piece of glass is immaterial to the resolution of this appeal. Appellant stated to the examining doctors that the afflicted area of his arm was the site of a surgically repaired glass cut. This is not disputed. This fact, coupled with the knowledge that there was a foreign object in the site, is sufficient to put Appellant on inquiry notice of the wrongful injury. The discovery rule encompasses the precept that acquisition of sufficient information which, if pursued, would lead to the true condition of things is sufficient to start the running of the statute. A reasonably prudent person is required to pursue his claim with diligence. Statutes of limitations were not designed to help those who refrain from prosecuting inquiries plainly suggested by the facts, and thus the Plaintiff is chargeable with knowledge of facts which he ought to have discovered in the exercise of diligence. Daugherty v. Farmers Co-op Ass'n., 689 P.2d 947 (Okl.1984).\\nSince it is undisputed that the means of knowledge existed more than two years before the action was filed, the Plaintiff is chargeable with the knowledge an inquiry would have produced, and the discovery rule does not, under this record, bar the running of the statute of limitations.\\nIt follows that the trial court did not err in granting the motion for summary judgment, and that order is affirmed.\\nAFFIRMED.\\nADAMS, P.J., and GARRETT, J., concur.\"}"

okla/10398377.json

@@ -0,0 +1 @@
+"{\"id\": \"10398377\", \"name\": \"Michael D. MORNES, Appellant, v. STATE of Oklahoma, Appellee\", \"name_abbreviation\": \"Mornes v. State\", \"decision_date\": \"1988-04-13\", \"docket_number\": \"No. F-85-569\", \"first_page\": \"91\", \"last_page\": \"95\", \"citations\": \"755 P.2d 91\", \"volume\": \"755\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T20:36:46.074639+00:00\", \"provenance\": \"CAP\", \"judges\": \"BRETT, P.J., and BUSSEY, J., concur.\", \"parties\": \"Michael D. MORNES, Appellant, v. STATE of Oklahoma, Appellee.\", \"head_matter\": \"Michael D. MORNES, Appellant, v. STATE of Oklahoma, Appellee.\\nNo. F-85-569.\\nCourt of Criminal Appeals of Oklahoma.\\nApril 13, 1988.\\nRehearing Denied May 23, 1988.\\nPete Gelvin, Asst. Public Defender, Oklahoma City, for appellant.\\nMichael C. Turp\\u00e9n, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.\", \"word_count\": \"2197\", \"char_count\": \"13649\", \"text\": \"OPINION\\nPARKS, Judge:\\nMichael D. Mornes, appellant, was tried by jury and convicted of Larceny of Merchandise from a Retailer [21 O.S.1981, \\u00a7 1731], After Former Conviction of Two or More Felonies [21 O.S.1981, \\u00a7 51(B) ], in Case No. CRF-84-46, in the District Court of Oklahoma County, the Honorable Leam-on Freeman, District Judge, presiding. The jury assessed punishment at imprisonment for thirty (30) years. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.\\nOn January 2, 1984, appellant entered a boot store in Oklahoma City and asked the clerk to direct him to the size 8 boots. The clerk took appellant to the appropriate rack. The clerk noticed appellant stumbled and that his eyes were bloodshot. The store manager called the police because she thought appellant was drunk in a public place. After about fifteen to twenty minutes, appellant walked to the register and inquired about the prices for children's boots. The clerk noticed that appellant's responses were rational, coherent and that he appeared to be alert. Appellant left the store without making a purchase.\\nAs appellant started to enter a car, a police officer arrived on the public drunk call. Either the clerk or the manager pointed through the window at appellant. The officer approached appellant, and, noticing appellant was unsteady on his feet, smelled of alcohol and had bloodshot eyes, arrested appellant for public drunkeness. As the officer searched appellant, he felt inside the tops of appellant's boots for weapons and felt a store tag. The tag was still attached to the boots and reflected the price of $110.00. The officer placed appellant in the patrol car.\\nThe officer asked the clerk to check for missing boots. The clerk went to the size 8 boot rack where appellant was trying on boots and found an old pair of boots mixed in with the new boots. The officer took the old boots to appellant and had him put them on his feet. The boots fit. The officer arrested appellant for grand larceny and read him the Miranda warnings.\\nAt trial, appellant testified he bought the boots from a man outside a pawn shop for $20.00 and threw his old loafers into a trash can. Appellant claimed he went to the boot store to shop for children's boots, although he admitted he did not have any money on him at the time. According to the officer, appellant did not tell him about buying the boots and throwing the old shoes in a trash can. The officer testified appellant only told him \\\"you really don't think you're going to make this stick.\\\" Appellant testified his statement to the officer was \\\"you ain't going to make that stick, is you.\\\"\\nFor his first two assignments of error, appellant asserts it was error for the trial court to admit photographs of the stolen boots into evidence because (1) the State did not establish a chain of custody for the boots, and (2) the photographs were not the \\\"best evidence\\\". After appellant's arrest, the boots were returned to the store, identified as belonging to the store, and photographs were taken of the boots. At trial, the arresting officer and the clerk identified the stolen boots from the photographs.\\nWe observe initially that the State was not required to establish a chain of custody for the boots, because they were not admitted into evidence. Ball v. State, 507 P.2d 1342, 1344 (Okla.Crim.App.1973). Nor was the State required to introduce the boots into evidence as the \\\"best evidence\\\", as the best evidence rule relates to proving the contents of written documents. Hayes v. State, 397 P.2d 524, 527 (Okla.Crim.App.1964). The State may introduce photographs representing the stolen property at trial rather than introduce the property itself. State v. Bouillon, 112 Ariz. 238, 540 P.2d 1219, 1221-22 (1975). Both the arresting officer and the store clerk identified the photographs as accurately depicting the property taken from the store. Id. 540 P.2d at 1222. \\\"To require the victim to endure the deprivation of his property from the date of the [theft] to the completion of appellant's trial and appeal is adding insult to injury and when not necessary to the prosecution of the defendant should be avoided.\\\" Id. The test for admissibility of relevant photographs at trial is whether the probative value of the photographs is substantially outweighed by the danger of unfair prejudice. 12 O.S.1981, \\u00a7 2403. The trial judge's decision to admit photographs into evidence will not be disturbed on appeal absent an abuse of discretion. Diaz v. State, 728 P.2d 503, 512 (Okla.Crim.App.1986). We find no abuse of discretion. These assignments of error are meritless.\\nFor his third assignment of error, appellant asserts the trial court erred by failing to instruct the jury on the defense of intoxication. Appellant correctly identifies the standard of review as \\\"whether the instructions, when considered as a whole, fairly state the applicable law.\\\" Rowell v. State, 699 P.2d 651, 653 (Okla.Crim.App.1985). Appellant failed to request an instruction that intoxication may negate the specific intent of larceny. Failure to timely object to the instructions given or to submit instructions waives all but fundamental error. Id. at 653. Appellant argues specific intent is an element of Larceny of Merchandise from a Retailer, and he was enti- tied, as a matter of law, to have the trial judge, sua sponte, instruct the jury on the law governing his theory of the case if there is possible support in the evidence, relying on Broaddrick v. State, 706 P.2d 534, 536 (Okla.Crim.App.1985). Here, although appellant admitted drinking several glasses of white wine, he expressly denied being intoxicated at the time of the offense. Appellant's theory of defense was he purchased the boots from a stranger outside a pawn shop for $20.00 and did not steal the boots. Appellant's testimony at trial \\\"negated the defense [of intoxication] by demonstrating he was in control of his mental faculties, [and] the court's failure to instruct, sua sponte, on . intoxication was not error.\\\" Kreijanovsky v. State, 706 P.2d 541, 544 (Okla.Crim.App.1985). After reviewing the instructions given as a whole, we find they fairly stated the applicable law. This assignment of error is meritless.\\nFor his fourth assignment of error, appellant asserts improper statements made by the prosecutor in closing argument deprived him of a fair trial because (1) the prosecutor misstated the evidence, and (2) the prosecutor used appellant's post-Miranda silence for impeachment purposes. The officer brought the old pair of boots found in the store to appellant and had him put them on. The old boots fit. In closing argument, the prosecutor said, \\\"The most telltale thing that the defendant had to say in this case was not something he said verbally.... When the officer brought out the old boots and handed them to the defendant, the defendant didn't act surprised, didn't say a word, didn't say, are these size 8 boots. He pulled them on to his feet.\\\" [Tr. 134-35] Appellant quotes the officer's testimony that when appellant was asked to put on the used boots found in the store, \\\"He asked me why_\\\" [Tr. 78]\\nFirst, \\\"[w]hen comments are based upon facts not introduced into evidence, or, as here, are minor misstatements of facts entered into evidence, we review the totality of the evidence to determine whether the remark could have affected the outcome of the trial. We fail to see how this minor misstatement of fact by the prosecutor in closing argument could have affected the outcome of the trial.\\\" Cunningham v. State, 748 P.2d 520, 522 (Okla.Crim.App.1987) (citations omitted). Second, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) precludes the prosecutor from using the accused's post-Miranda silence for impeachment purposes. See Smith v. State, 744 P.2d 1282, 1284 (Okla.Crim.App.1987). Doyle protects the accused's invocation of his right to remain silent after being given a Miranda warning, and once the accused has exercised his right not to speak to police officers, the State may not use his silence as a penalty. In the instant case, the silence referred to in closing argument concerned appellant's failure to inquire about the size of the boots, not to appellant's invocation of his right not to talk to police officers. We find no exploitation by the State of appellant's exercise of his right not to speak to police officers after being given a Miranda warning. This assignment of error is meritless.\\nFor his fifth and sixth assignments of error, appellant asserts the court erred in admitting the Texas pen pack containing his judgments and sentences for six previous burglaries because (1) the pen pack contained an information and contained references to revocation of parole, and (2) four of the six Texas felonies arose from the same transaction or occurrence.\\nWe observe initially that the Texas pen pack introduced at trial does not contain an information. Appellant is in error. Appellant introduced the informations on appeal as a supplement to the original record. The informations were not introduced at trial. These informations submitted by appellant show that each of the previous burglaries involved different victims. Regarding the references to revocation of parole contained within the Texas pen pack, appellant relies on Bean v. State, 392 P.2d 753, 754-56 (Okla.Crim.App.1964), in which the State introduced the appellant's prison records for sentence enhancement purposes. Such was not the case here. The pen pack contains the judg- merits and sentences for the six burglaries and the orders subsequently revoking appellant's parole for these convictions. Appellant made a general objection to the introduction of the pen pack and failed to request the trial court to excise the references to revocation of parole. Camp v. State, 664 P.2d 1052, 1054 (Okla.Crim.App.1983). Appellant has consequently failed to preserve this issue for appellate review.\\nAppellant argues that four of the six burglary convictions arose from the same transaction or occurrence because they were committed on the same day and are denominated by consecutive case numbers. Appellant pled guilty to three of these burglaries on the same day. Appellant has the burden of proving that the prior convictions arose out of the same transaction or occurrence. Bickerstaff v. State, 669 P.2d 778, 780 (Okla.Crim.App.1983). The mere fact that the prior convictions were consecutively numbered, Gross v. State, 706 P.2d 914, 915 (Okla.Crim.App.1985), or that appellant pled guilty to three of these burglaries on the same day, Vowell v. State, 728 P.2d 854, 859 (Okla.Crim.App.1986), is insufficient to meet appellant's burden of presenting evidence that these four convictions arose from the same transaction or occurrence. Moreover, had appellant met his burden of proof, resulting in the four previous convictions being counted as one conviction for sentence enhancement purposes, appellant would still have three previous convictions for burglary in Texas and one previous conviction for grand larceny in Oklahoma. Thus, the State presented ample evidence proving appellant was previously convicted of two or more felonies in satisfaction of the requirements of 21 O.S.1981, \\u00a7 51(B). Pekah v. State, 660 P.2d 652, 655 (Okla.Crim.App.1983). This assignment of error is merit-less.\\nFor his seventh assignment of error, appellant asserts his sentence of thirty years imprisonment is excessive. Our sentencing enhancement statute for habitual felons, 21 O.S.1981, \\u00a7 51, provides for a mandatory minimum sentence of imprisonment for twenty years or more upon conviction of a felony after former conviction of two or more felonies, Section 51(B). Williams v. State, 720 P.2d 341, 343 (Okla.Crim.App.1986). The statute does not provide for a maximum sentence but leaves that determination to the trier of fact. In reviewing the punishment imposed above the minimum sentence of twenty years imprisonment, \\\"the question of excessiveness of punishment must be determined from a study of all the facts and circumstances in each particular case, and . this Court does not have the power to modify the punishment unless we can conscientiously say that under those facts and circumstances the sentence is so excessive as to shock the conscience of the Court.\\\" Sanders v. State, 706 P.2d 909, 911 (Okla.Crim.App.1985). Under similar facts and circumstances, we have previously found that imprisonment of forty years for larceny of merchandise from a retailer after former conviction of four felonies does not shock the conscience of the Court. Id. In the instant case, appellant was sentenced to thirty years imprisonment after former conviction of seven felonies. We cannot conscientiously say the punishment imposed shocks the conscience of the Court. This assignment of error is without merit.\\nFor his eighth and final assignment of error, appellant asserts the cumulative effect of error necessitates his conviction be reversed or his sentence modified. If there is no individual error, there can be no error by accumulation. Horton v. State, 724 P.2d 773, 776 (Okla.Crim.App.1986). This assignment of error is meritless.\\nIn light of the above, appellant's judgment and sentence should be, and hereby is, AFFIRMED.\\nBRETT, P.J., and BUSSEY, J., concur.\"}"

okla/10416056.json

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+"{\"id\": \"10416056\", \"name\": \"Sid Francis NAIL, By and Through his father, Don Francis NAIL, Jr., and Don Francis Nail, Jr., Sheila Nail, on their own behalf, Appellants, v. OKLAHOMA CHILDREN'S MEMORIAL HOSPITAL, operated by the Department of Human Services, an agency of the State of Oklahoma, Norman S. Levine, M.D., J.D. Parkhurst, M.D., James A. Glasgow, M.D., and the University of Oklahoma, Appellees\", \"name_abbreviation\": \"Nail ex rel. Nail v. Oklahoma Children's Memorial Hospital\", \"decision_date\": \"1985-12-10\", \"docket_number\": \"Nos. 60678, 60091\", \"first_page\": \"755\", \"last_page\": \"763\", \"citations\": \"710 P.2d 755\", \"volume\": \"710\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T21:44:21.451554+00:00\", \"provenance\": \"CAP\", \"judges\": \"SIMMS, C.J., DOOLIN, V.C.J., and HODGES, HARGRAVE and OPALA, JJ., concur.\", \"parties\": \"Sid Francis NAIL, By and Through his father, Don Francis NAIL, Jr., and Don Francis Nail, Jr., Sheila Nail, on their own behalf, Appellants, v. OKLAHOMA CHILDREN\\u2019S MEMORIAL HOSPITAL, operated by the Department of Human Services, an agency of the State of Oklahoma, Norman S. Levine, M.D., J.D. Parkhurst, M.D., James A. Glasgow, M.D., and the University of Oklahoma, Appellees.\", \"head_matter\": \"Sid Francis NAIL, By and Through his father, Don Francis NAIL, Jr., and Don Francis Nail, Jr., Sheila Nail, on their own behalf, Appellants, v. OKLAHOMA CHILDREN\\u2019S MEMORIAL HOSPITAL, operated by the Department of Human Services, an agency of the State of Oklahoma, Norman S. Levine, M.D., J.D. Parkhurst, M.D., James A. Glasgow, M.D., and the University of Oklahoma, Appellees.\\nNos. 60678, 60091.\\nSupreme Court of Oklahoma.\\nDec. 10, 1985.\\nJohn W. Norman, Oklahoma City, Mark Hammons, C. Elaine Hammons, Hammons & Hammons, El Reno, Ronald W. Horgan, Oklahoma City, for appellants.\\nGeorge F. Short, George W. Pauli, Jr., Short, Barnes, Wiggins Margo & Adler, Thomas H. Tucker, Andrew E. Thurman, Oklahoma Children\\u2019s Memorial Hosp., Dept, of Human Services, Oklahoma City, Stanley M. Ward, Kurt F. Ockershauser, Susan Gail Seamans, Bd. of Regents of University of Oklahoma, Norman, for ap-pellees.\", \"word_count\": \"3893\", \"char_count\": \"23778\", \"text\": \"SUMMERS, Justice.\\nThis medical malpractice suit was brought on behalf of a small child, alleging negligence resulting in permanent brain damage. The demurrer of the defendant University of Oklahoma was sustained on the basis of sovereign immunity, resulting in appeal No. 60,091. The remaining defendants (Oklahoma Children's Memorial Hospital and three physicians) were exonerated by a defendant's verdict after ten days of jury trial. Plaintiffs have appealed from the trial court's order overruling their timely filed motion for new trial, that appeal being No. 60,678. The two appeals have been consolidated. We affirm in both.\\nWe shall address the issues in the order presented by appellants, after a brief summary of the facts.\\nFACTS\\nSid Nail was born some five weeks premature, and weighed four pounds, eleven ounces. At birth he suffered from a condition making breathing extremely difficult due to his lungs having not yet been completely formed. He was cyanotic, or blue in color from lack of oxygen, during much of his first two or three weeks of life, during which period he was placed on a respirator, as he could not breathe on his own. He survived, however, and was released to his parents with the caution that he be followed as an out-patient.\\nIn addition to his other problems Sid had been born with a cleft palate. In August of 1977, Dr. Levine decided Sid, then aged 15 months, was old enough to have surgical repair of the cleft palate, and that is the normal time when an infant starts to talk. The surgery itself was successful, but toward the end of this procedure Sid's tongue fell backwards and blocked his air passages, causing a momentary period of cya-nosis (bluish coloration). This was promptly corrected and a stitch was placed in his tongue and taped to the outside of his cheek.\\nThe following morning the stitch was removed (by Dr. Parkhurst) and the child transferred from intensive care to a room on the floor. He again began to experience respiratory distress. Dr. Glasgow was called in and removed from the mouth and throat the surgical material he believed was causing the problem. Shortly thereafter the breathing difficulty set in again and the child had a cyanotic seizure. Dr. Glasgow performed mouth to mouth resuscitation and normal breathing returned. At no time did the child lose consciousness.\\nThis case was filed in September 1981, alleging that Sid's brain damage was caused by an accumulation of the defendant's actions: the early removal of the tongue stitch, the early removal from the intensive care unit, the failure to properly monitor the child, the failure to equip his room with proper equipment should cyano-sis re-occur, the failure of the staff to obtain a physician timely, the failure of Dr. Glasgow to arrive timely, once called, and improper diagnosis by Dr. Glasgow. Plaintiffs at all times alleged and maintained that although Sid had a \\\"stormy birth period\\\" he was at the time of admission for the surgery in 1977 \\\"a normal healthy but small baby\\\" (appellant's brief p. 3). Plaintiff's testimony supported these allegations.\\nThe defendant's testimony, contrariwise, supported their contention that Sid's disability did not and could not have occurred during the events complained of, but totally predated the surgery, occurring either during the difficult first two or three weeks of his life, or in the first trimester of pregnancy, or by some combination of the two. No physician for either side testified that a combination of the neonatal difficulties and the post-surgical ones occurred to his detriment. All agreed that Sid remains permanently and tragically mentally retarded.\\nI.\\nDID THE COURT ERR IN FAILURE TO DIRECT A PLAINTIFF'S VERDICT AGAINST THE DEFENDANT HOSPITAL?\\nIt did not. The proximate cause of the child's brain damage was strongly controverted by opposing witnesses. In passing on a motion for directed verdict the trial court must consider as true all of the evidence favorable to the party against whom the motion is directed, together with all inferences reasonably drawn therefrom. Upon consideration of such motion the hospital was entitled to the benefit of every reasonable inference in its favor which could be drawn from the evidence. Evidence favorable to the hospital presented by its co-defendants is likewise to be so considered by the trial court in ruling on such motion. Where men of ordinary intelligence might differ as to whether the evidence shows the defendant's negligence to be the proximate cause of the plaintiff's injury, the question is properly one for the jury.\\nII.\\nSHOULD THE COURT HAVE INSTRUCTED ON \\\"AGGRAVATION OF PRE-EXISTING CONDITION?\\\"\\nPlaintiff's counsel requested Instructions Oklahoma Uniform Jury Instructions Civil (OUJI-CIV) No. 4.9 which states:\\n\\\"4.9 MEASURE OF DAMAGES \\u2014 AGGRAVATIONS OF PRE-EXISTING CONDITIONS\\nA person who has a condition or disability at the time of an injury is entitled to recover damages for any aggravation of such pre-existing condition or disability directly caused by the injury. This is true even if the person's condition or disability made him more susceptible to the possibility of injury than a normally healthy person probably would have been, and even if a normally healthy person probably would not have suffered any substantial injury.\\nWhen a pre-existing condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation.\\\"\\nThe trial court declined the request and stated for the record:\\n\\\"I don't think we have expert testimony to that effect. The only thing I believe I've heard is that one side's witness experts say it was a result of the neonatal period and the other as a result of the respiratory arrest. I don't believe I've heard any evidence of combination. (Tr. p. 1233)\\nA trial court must instruct on issues raised by the pleadings and supported by the evidence. The court's refusal to give requested instructions on questions neither pled nor supported by evidence is not error. In fact it has been held reversible error to instruct on issues not justified by the pleadings and evidence.\\nPlaintiffs failed to either plead or offer evidence of any pre-existing condition. In fact plaintiffs consistently maintained Sid's condition was \\\"normal\\\" up until his hospitalization in 1977. All of the plaintiff's testimony was directed toward proving that the incident in August 1977 was the sole proximate cause of his disability. The request for instruction on aggravation came almost as an afterthought, on the morning of the day instructions were to be given.\\nAlthough neither party's brief offers from Oklahoma authority squarely on the subject at least two other jurisdictions have supported the trial court's refusal to instruct. The Colorado Court of Appeals in Brooks v. Reiser said:\\n\\\"[2] A second and equally valid reason for refusing this instruction was the fact that there was no evidence to support the theory of aggravation of a pre-existing condition. An instruction should not be given if the theory it propounds is unsupported by the evidence presented at trial. Houser v. Eckhardt, Colo., 450 P.2d 664. Otherwise, the jury might infer competent evidence is present to support this principle. Greenwood v. Kier, 125 Colo. 333, 243 P.2d 417.\\nTwo medical experts testified at trial, one for the plaintiff and one for the defendant. A close scrutiny of the record fails to reveal any testimony by either doctor that the injuries suffered as a result of this accident might be related to or connected with plaintiffs back injury for which he was operated on in 1960 or 1961. Merely because the pain occurring in 1967 is in the same general area as the area operated on in 1960 or 1961 does not in itself establish the probability of aggravation. It would be mere conjecture under these circumstances to presume that the 1967 accident aggravated a condition existing by virtue of the 1960 or 1961 operation, and therefore refusal to instruct on the issue was not error. General Motors v. Walden, 10 Cir., 406 F.2d 606 [1969].\\nThe Indiana Court of Appeals in Lapsley v. Jackson said:\\n[6,7] At trial Mrs. Lapsley made no claim and presented no evidence alleging that her physical injuries and complications were in any way aggravated by reason of her pre-existing condition. In fact, Mrs. Lapsley attempted to show that her injuries were entirely unrelated to her prior physical infirmities....\\n[8] Mrs. Lapsley claims that Jackson introduced evidence that could give rise to an inference on aggravation; she refers to the introduction of her past medical records which showed that she suffered from numerous internal complaints prior to the accident. The mere possibility that the jury could have considered aggravation, in a case where no such theory was argued by either side, cannot require the trial court to instruct the jury on aggravation.\\nMrs. Lapsley failed to argue that her injuries may have been aggravated by her pre-existing condition. Therefore, it was up to the jury to decide whether all or only part of Mrs. Lapsley's injuries were proximately caused by Jackson's negligence.\\nWe hold that the trial court correctly refused Mrs. Lapsley's tender of an instruction concerning aggravation of a pre-existing condition_\\\"\\nWe have held that a judgment is not to be disturbed on appeal because of allegedly erroneous instructions unless it clearly appears that the instructions given or refusal either caused a miscarriage of justice or led to a different verdict than would have been rendered but for this alleged error. By failure to either plead or prove aggravation of a preexisting injury we hold that under the facts of this case plaintiff was not entitled to the requested instruction, and refusal to give it was not error.\\nIII.\\nDID COUNSEL FOR DEFENDANT PHYSICIANS COMMIT MISCONDUCT REQUIRING REVERSAL?\\nAppellants first complaint is that counsel caused false, misleading and prejudicial in formation to be placed in the record. Dr. R, a witness called as an expert by the defendants, had examined the child and all the child's medical records. Dr. B made a report which was inserted into medical records, which report said \\\"A C.T. Scan had been recommended done and not done.\\\" The first reference to a C.T. Scan was elicited by appellant's counsel on cross-examination. Defendants point out that Dr. B as a physician, faculty member, member of the staff of the teaching hospitals, and chairman of a department at the Health Sciences Center, upon examination of the appellant, would have been remiss not to have placed a copy of his report of examination in the patient records of the institution. This report was not a surprise to appellants. It was furnished prior to the trial and was in the hands of appellants' expert witnesses.\\nThe trial court, acting within its discretion, refused to allow appellant to summon co-counsel to the witness stand to refute evidence elicited as to the requested CT scan. The trial court looked at this issue carefully and then admonished the jury to disregard the issue of the requested CT scan as it was of absolutely no relevance in their decision.\\nAppellants secured an affidavit from a juror concerning what the jurors had based their decision upon. With respect to juror affidavits this Court has determined:\\n\\\"Public policy does not allow jurors to be heard by affidavit or otherwise as to how or what factors were considered in rendering a verdict unless there be actionable or criminal overtones present.\\\" Holden v. Coussens, 576 P.2d 758, 761 (Okl.1978).\\nThe conduct of a trial is a matter of the sound discretion of the trial court, and in absence of abuse of that discretion, the trial court's ruling will not be disturbed.\\nAppellants further complained of repeated verbal personal attacks by opposing counsel during trial and in closing argument. Such examples of misconduct however, if they occurred, were not targeted by objections and they are not subject to review by ourselves. We have on numerous occasions held:\\n\\\"Alleged prejudicial remarks of counsel in his argument to the jury are not preserved for review by this court unless objected to . at the time the remarks are made....\\\"\\nThe trial court considered all allegations of improper conduct at the hearing on motion for new trial. We find no error in his refusal to grant a new trial on these grounds.\\nIV.\\nDID THE TRIAL COURT ERR IN ALLOWING DEFENDANTS TO CALL AN EXPERT WITNESS OUT OF TIME?\\nThis trial started on a Monday. At 2:20 P.M. on the following Friday the defendants approached the trial judge with a request to call a defense witness out of time. The witness was Dr. R, a cleft palate specialist from Philadelphia, who had been scheduled for Friday afternoon by defendants' counsel. Defendants' counsel had projected that plaintiffs would have rested by then. In fact plaintiffs had not rested, and still had one more deposition to read to the jury. Plaintiffs' counsel objected to the interruption, and subpoenaed the doctor himself for the following Monday morning. Defendant represented to the court that the doctor, essential to their case, could only be available for testimony that afternoon, and then had to return to the east coast. The Court allowed the witness to be called out of time, with appropriate explanation to the jury. Although not waiving his objection, plaintiffs' counsel said:\\nMr. Norman: \\\"We want to request as much time for cross as used in the direct.\\\"\\nThe Court: \\\"I'm not allotting any amount of time. You use. it at your own discretion.\\\" (Tr. P. 692)\\nAt the conclusion of direct, cross, redirect, recross, and more recross examination, the court said:\\nThe Court: \\\"Are you finished with the witness?\\nMr. Norman: \\\"Yes, I'm finished.\\\" (Tr. P. 762)\\nWe have held that the order in which proof is introduced at trial rests very much within the discretion of the trial court, and unless it clearly appears that this discretion has been abused to the injury of the complaining party, a judgment will not be reversed on this ground.\\nPlaintiff claims prejudice by not being able to cross-examine Dr. R. after he had placed in evidence the final deposition, but he fails to demonstrate how he was so prejudiced. Plaintiffs counsel requested equal time for cross-examination. The record indicates direct and redirect consumed 24 pages of transcript, while cross and recross took 45. Trial judge noted the cross-exam was \\\"very exhaustive\\\". (Tr. 764) The court did not cut off cross-examination, but rather counsel said \\\"Yes, I'm finished.\\\" We find no prejudice to have resulted in either allowing the witness to testify out of time or in failing to order the doctor to return for further cross-examination Monday morning.\\nV.\\nWAS THERE PREJUDICIAL ERROR IN THE TRIAL COURT RULINGS ADMITTING CERTAIN EVIDENCE AND EXCLUDING CERTAIN OTHER EVIDENCE?\\nPlaintiffs object to the admission of xerox copies of some of plaintiff's hospital records as not the best evidence. Plaintiff had previously at pretrial waived identification of \\\"medical records.\\\" The \\\"best evidence\\\" objection now interposed was not suggested when the exhibits were offered, and may not at this stage be successfully invoked.\\nPlaintiff objects to admission of the \\\"curriculum vitae\\\", or resume of qualifications of two expert witnesses for the defendants. These may have been admitted in error as either cumulative or contrary to 12 O.S. \\u00a7 2808(5), but no prejudice is shown to have resulted.\\n\\\"A. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected....\\\"\\nError is claimed in the court's refusal to admit certain summaries of medical records, prepared in poster form. Summaries of the evidence are treated in the code at 12 O.S. 1981 \\u00a7 3006:\\n\\\"The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The judge may order that they be produced in court.\\\" (Emphasis supplied.)\\nWhether to admit such summaries pursuant to the \\\"may be\\\" language of the statute is discretionary with the trial court. No abuse is shown.\\nThe same principle controls plaintiffs' complaint for failure to admit photos offered to show the hallway looking from the nursing station.\\nThe final assignment of evidentiary error arises out of cross-examination of Dr. R. Plaintiffs' counsel vigorously interrogated the witness regarding a chapter from an authoritative text entitled Reconstructive Plastic Surgery, Ch. 50 in particular. At issue was whether certain statements in the chapter pertained to only newborn infants as the doctor maintained on the stand, or to other patients such as Sid. Plaintiffs offered the treatise as an exhibit and defendants' objection to it was sustained.\\nInsofar as the treatise was offered as \\\"reliable authority . called to the attention of an expert witness upon cross-examination\\\", the objection was correctly sustained. Such \\\"statements may be read into evidence but may not be received as exhibits.\\\" The more serious problem is this: Chapter 50 of the book was actually written by the witness, and the offer was therefore that of a prior inconsistent statement. The court thus erred in sustaining the objection.\\nWe find, however, nothing so inherently prejudicial in this error as to require reversal. The exhibit was offered to impeach the witness' credibility, and the witness had already been cross-examined thoroughly with questions and quotes from the treatise. Thus the jury had already been exposed to the excluded information. Further, Dr. R's testimony as to the ultimate issue in the case, causation, was that of but one of four non-party physicians, each of whom testified that the injuries pre-dated the surgery. We have held that the test of errors not inherently prejudicial is the likelihood that the verdict would have been different had they not occurred. Upon a careful review of the evidence we cannot conclude that this error requires reversal of this complicated trial of ten days duration.\\nVI.\\nDID THE TRIAL COURT PREJU-DICIALLY INTERFERE WITH PLAINTIFF'S VOIR DIRE EXAMINATION?\\nAppellant complains that during his interrogation of a prospective juror it developed that the prospective juror's company had a service contract to deliver water to the defendant hospital. Whereupon the court made further inquiry, and later held that the juror did not meet any of the grounds for challenge for cause. The juror was excused by the plaintiff peremptorily. The voir dire was not reported but the following record was made out of the jury's presence at the close of plaintiffs opening statement (Tr. 36, 37, 38)\\n\\\"Mr. Norman: . The Court thereupon took over the examination and asked the prospective juror Arnold for on the other hand he felt the evidence will justify a verdict in favor of the hospital, would he return a verdict, and the prospective juror said yes and plaintiffs' counsel was instructed to move on to another subject.\\\"\\nThe Court: \\\"I think your question to him . not your question . my question to him was notwithstanding the fact that you might find it difficult, would you judge this evidence fairly and impartially and then your verdict you felt justified under it, and he said yes. It's correct. I did not permit him to be excused for cause because I'm of the opinion that not only are jurors eligible to remain with such an answer, but oftentimes make the better juror where they operate in spite of difficulty; that when they make a wiser and sounder verdict when they operate under such circumstances.\\\"\\nAppellant claims that but for the court's questioning, the juror would have wound up disqualified for cause, and would not have required appellant to use a peremptory challenge that he needed for another juror. Pursuant to Rule 6, Rules for the District Court, 12 O.S. Ch. 2, App. the trial judge\\n\\\"may outline the nature of the case, the issues of fact and law to be tried, and may then put to the jurors any questions regarding their qualifications to serve as jurors in the cause of the trial.\\\"\\nWe have said in McAlester Urban Renewal Authority v. Lorince:\\n\\\"A large discretion is vested in the trial court in determining the competency and qualifications of jurors and its action should not be disturbed unless an abuse of such discretion is clearly apparent.\\\"\\nWe find no such abuse of discretion in the court's asking if the juror could be fair and impartial, and upon receiving an affirmative reply, refusing to challenge for cause.\\nVI.\\nWAS THE DEMURRER OF THE BOARD OF REGENTS FOR THE UNIVERSITY OF OKLAHOMA PROPERLY SUSTAINED BY REASON OF SOVEREIGN IMMUNITY?\\nThe petition named the University of Oklahoma as the employer of the three physician defendants under the doctrine of respondeat superior. Demurrer was sustained on the theory that the University in employing the individual doctors was performing a governmental, not proprietary, function. Since by this opinion we affirm the judgment of the District Court that no liability attaches to the servants we need not address the question of liability of the master. It is moot.\\nJudgment of the District Court of Oklahoma County in favor of all defendants is affirmed.\\nSIMMS, C.J., DOOLIN, V.C.J., and HODGES, HARGRAVE and OPALA, JJ., concur.\\nKAUGER, J., concurs in result.\\nALMA WILSON, J., concurs in part, dissents in part.\\nLAVENDER, J., disqualified.\\n. Central Mutual Ins. Co. v. Dickason, 451 P.2d 1 (Okl.1969).\\n. England v. Kilcrease, 456 P.2d 521 (Okl.1969).\\n. Skogsberg v. First National Bank, 439 P.2d 957, (Okl.1968).\\n.Chase v. Paul Holt Drilling Inc., 538 P.2d 217, (Okl.App.1975); Midland Valley Railroad Co. v. McKee, 389 P.2d 492 (Okl.1964).\\n. 483 P.2d 389 (Colo.App.1971).\\n. 179 Ind.App. 204, 384 N.E.2d 1136 (1979).\\n.Kimery v. Public Service Co., 622 P.2d 1066 (1981).\\n. See England v. Kilcrease, supra note 2.\\n. Bateman v. Glenn, 459 P.2d 854 (Okl.1969).\\n. Stanfield v. Lincoln, 150 Okl. 289, 1 P.2d 387 (1931).\\n. See Frierson v. Hines, 426 P.2d 362 (Okl.1967).\\n. 12 O.S.1981 \\u00a7 2104(A)(1).\\n. \\\"A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. The memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party;\\\"\\n.12 O.S.1981 \\u00a7 2104(A).\\n. 12 O.S.1981 \\u00a7 2803(18).\\n. Karriman v. Orthopedic Clinic, 516 P.2d 534 (Okl.1973).\\n. 519 P.2d 1346, 1348 (Okl.1974); see also Rogers v. Citizens Nat'l Bank, 373 P.2d 256 (Okl.1962).\"}"

okla/10432383.json

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+"{\"id\": \"10432383\", \"name\": \"TOWN OF REYDON, et al., Appellant, v. Robert G. ANDERSON a/k/a R. G. Anderson, Appellee; Robert G. ANDERSON, a/k/a R. G. Anderson, Appellee, v. HBOP, LTD., a limited partnership, The Town of Reydon, Oklahoma, and Apache Corporation, a foreign corporation, Appellants\", \"name_abbreviation\": \"Town of Reydon v. Anderson\", \"decision_date\": \"1982-07-27\", \"docket_number\": \"Nos. 54188, 54185\", \"first_page\": \"541\", \"last_page\": \"545\", \"citations\": \"649 P.2d 541\", \"volume\": \"649\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T19:15:50.400716+00:00\", \"provenance\": \"CAP\", \"judges\": \"IRWIN, C. J., BARNES, V. C. J., and LAVENDER, SIMMS, HARGRAVE, OPA-LA and WILSON, JJ., concur.\", \"parties\": \"TOWN OF REYDON, et al., Appellant, v. Robert G. ANDERSON a/k/a R. G. Anderson, Appellee. Robert G. ANDERSON, a/k/a R. G. Anderson, Appellee, v. HBOP, LTD., a limited partnership, The Town of Reydon, Oklahoma, and Apache Corporation, a foreign corporation, Appellants.\", \"head_matter\": \"TOWN OF REYDON, et al., Appellant, v. Robert G. ANDERSON a/k/a R. G. Anderson, Appellee. Robert G. ANDERSON, a/k/a R. G. Anderson, Appellee, v. HBOP, LTD., a limited partnership, The Town of Reydon, Oklahoma, and Apache Corporation, a foreign corporation, Appellants.\\nNos. 54188, 54185.\\nSupreme Court of Oklahoma.\\nJuly 27, 1982.\\nDorothy Alexander, Reydon, for appellant Town of Reydon.\\nSmith & Wright by Gale F. Smith, Cheyenne, for appellee Robert G. Anderson.\\nMusser, Bunch & Gist by Doyle G. Bunch, Oklahoma City, for appellant HBOP, Ltd.\", \"word_count\": \"2218\", \"char_count\": \"12578\", \"text\": \"HODGES, Justice.\\nThis appeal concerns an action which was brought to quiet title and determine the ownership of the oil, gas, and other minerals which underly the streets and alleys of the town of Reydon, Oklahoma. The dis-positive question on appeal is whether mineral ownership is vested in the city or the abutting landowners.\\nOn May 16, 1929, Nelson W. Willard executed an untitled instrument which purported to donate and dedicate a tract of land for public use as streets and alleys according to the accompanying plat. Thereafter, Block One, except for Lot Seven of the original plat, and all of Blocks Thirteen and Sixteen of the plat of the First Addition to the town of Reydon were conveyed to Independent School District No. 1-6 of Roger Mills County, Oklahoma. The Reydon Board of Trustees executed an oil and gas lease to J. Cooper West, including all the streets and alleys. The working interest was assigned to HBOP, Ltd., which assigned its interest to Apache Corporation with reservation of only an overriding royalty interest until payout of the well. Subsequently, the School District entered into an oil and gas lease with Robert G. Anderson which involved the same property. The streets and alleys are located in an established spacing unit where a producing well has been drilled. The proceeds from production are being held in suspense pending the result of this litigation.\\nRobert G. Anderson filed a quiet title suit to determine the ownership of the oil, gas and other minerals underlying the streets and alleys. The parties agreed that the cause did not involve any questions of fact and that the only issue to be resolved was a question of law, i.e., whether the dedication of a plat to the Town of Reydon on April 16, 1929, by Nelson W. Willard, which used the verbage \\\"to donate and dedicate the streets and alleys to public use,\\\" conveyed an easement or a fee. The court held that an easement was conveyed based on the rule at common law which is codified by 69 O.S. 1981 \\u00a7 1202, that an owner of land is presumed to own to the center of the roadway, and the latter part of 11 O.S. 1981 \\u00a7 41-109; and the decision of this Court in Board of Trustees of Town of Taloga v. Hadson Oil Go., 574 P.2d 1038 (Okl.1978). The Court determined that the minerals were owned by the abutting landowners of the streets and alleys to the center thereof and quieted title to Anderson's lease for oil, gas and other minerals in and under the alleys of the town. HBOP, Ltd. and the Town of Reydon appealed and the appeals were consolidated.\\nThe Town of Reydon and HBOP, Ltd. contend that the instruments conveyed a fee simple title to the town and as a result HBOP, Ltd. is the owner of an overriding royalty interest pursuant to a valid and. subsisting oil and gas lease. Apache Corporation argues that it is a neutral party and, although its economic interest would be furthered by a decision in favor of the town, Apache agrees with the trial court's decision. Anderson counters that the minerals are owned by the abutting landowners.\\nI\\nThe common law rule that dedication of streets and alleys to a public use resulted in retention of the fee by the grantor was recognized in Barclay v. Howell, 6 Pet. 498, 510, 31 U.S. 498, 510, 8 L.Ed. 477, 482 (1832); the United States Supreme Court said:\\n\\\"By the common law the fee in the soil remains in the original owner where a public road is established over it; but the use of the road is in the public. The owner parts with this use only, for if the road should be vacated by the public, he resumes the exclusive possession of the ground; and while it is used as a highway, he is entitled to the timber and grass which may grow upon the surface, and to all minerals which may be found below it.... \\\"\\nIn a common law dedication, an easement only in lands designated for public use is conveyed by the dedication; a statutory dedication may result in conveyance of the fee. Statutory dedication of lands for streets vests the fee to the property in the municipality as long as the property is devoted to public use. The municipality acquires a determinable fee which reverts to abutting lot owner when the street is vacated.\\nThe interest conveyed by 11 O.S. Supp.1978 \\u00a7 41-109 depends on whether property dedicated by means of a plat is donated or granted or merely dedicated. In Langston City v. Gustin, 191 Okla. 93, 127 P.2d 197, 200 (1942), this Court held \\\"(t)hat with reference to quality of interest or title conveyed the statute places property dedicated by means of a plat in two general classes, depending upon the language used in connection with its dedication.\\\" In the first class, the Court placed property comprehended by that portion of the statute preceding the semicolon and marked as a \\\"donation\\\" or \\\"grant\\\". The second class includes property encompassed by that portion of Section 515 succeeding the semicolon and which is not \\\"granted\\\" or \\\"donated\\\" but merely \\\"dedicated\\\". The Court stated:\\n\\\"As to the first class a qualified fee simple title (sometimes referred to as a base fee) is conveyed and the dedicator divests himself and his heirs of all further interest in the property. The qualification of the fee merely enables any person properly interested to enforce the continued use of the property for the purpose for which it was donated or granted or prevents its use for other purposes, at least so long as it is suitable for the designated use.\\\"\\nRecently in Taloga the Court discussed the construction placed on the statute by Langston and determined that: 1) \\\"Donated for Cemetery\\\" marked on a plat was held to convey a fee simple title to the city based on the premise that public purpose had not been abandoned by the city and on the fact the word \\\"donated\\\" or \\\"granted\\\" was used; and 2) the last phrase of the statute dealing with streets and alleys, conveys an easement only, with the fee remaining in the dedicator and passing to his successors.\\nGenerally, if a dedication is made for a specific use or defined purpose, the municipality lacks the -power to use the property for any purpose other than the one designated, regardless of whether the dedication is a common law or statutory dedication. Land dedicated by a private owner for a specific purpose can be used only for the purpose intended.\\nAppellant asserts that the words donate and dedicate convey a fee simple title to the town. We are not persuaded by this argument for three reasons: 1) Under Oklahoma law a town ordinarily does not own fee simple title to the streets therein, rather it is reposed in the abutting property owners, 2) although the ownership of streets and alleys to the center thereof is a rebuttable presumption pursuant to 69 O.S. 1981 \\u00a7 120.2, the town has not rebutted the presumption, and 3) apparently the plat is not marked with the word donated or granted [it is not in evidence].\\nWe are persuaded by the reasoning of the Washington Supreme Court in Miller v. County of King, 59 Wash.2d 601, 369 P.2d 304, 306 (Wash.1962) wherein it said:\\n\\\". . . We are not here concerned with the meaning of the words [\\\"donate, grant and dedicate\\\"] but rather, with the intent of the donors when the words were used. To hold that the words of the donors constituted a conveyance such as a quit claim deed, would vest title to the street in the county for any purpose for which it might elect to use it. Such a construction could defeat the very purpose for which the donors made the dedication or grant.\\\"\\nBased on its decisions in Langston City and Taloga, this Court has divided 11 O.S. 1981 \\u00a7 41-109 into two distinct parts: the first portion pertains to titles to lots and blocks which are donated and granted; the second involves land intended to be used for streets and alleys which conveys an ease ment with the fee remaining in the dedicator and passing to his successors. We find that the dedication of the plat created an easement for public use to- the streets and alleys and the fee simple title was vested in the abutting landowners burdened only by an easement.\\nAFFIRMED.\\nIRWIN, C. J., BARNES, V. C. J., and LAVENDER, SIMMS, HARGRAVE, OPA-LA and WILSON, JJ., concur.\\n. \\\"I, Nelson W. Willard, the undersigned, hereby certify that I am the owner of certain lands situated and being in the County of Roger Mills, State of Oklahoma, and described as part of the South Half (S \\u00bd) of the Southwest Quarter (SW '/*) of Section Twenty-five (25) and the North Half (N 'h) of the Northwest Quarter (NW \\u215d) of Section Thirty-six (36), all in Township Fourteen (14), Range Twenty-six West, and being desirous of platting the same into lots and blocks, streets and alleys, so as to cause a town to be built thereon and to enable me to convey parts thereof by reference to lot and block numbers, have caused the same to be surveyed, mapped and platted as per the annexed map and plat of the town of REYDON, intending thereby, hereby and by the filing hereof, and the sale of lots with reference to such map and plat, to donate and dedicate the streets and alleys to public use. .\\\"\\n. It is provided by 69 O.S.1981 \\u00a7 1202 that:\\n\\\"An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.\\\"\\n. Piper v. Reder, 44 Ill.App.2d 431, 195 N.E.2d 224, 226 (Ill.App.1964); See also 11 O.S.Supp. 1978 \\u00a7 42-109(C).\\n. The Statute, 11 O.S.1941 \\u00a7 515 cited in the Langston case provided:\\n\\\". . . When the plat or map shall have been made out and certified, acknowledged and recorded as required by this Article, every donation or grant to the public, or any individual or individuals, religious society or societies, or to any corporation or body politic, marked or noted as such on said plat or map, shall be deemed in law and equity a sufficient conveyance to vest the fee-simple of all such parcel or parcels of land as are therein expressed, and shall be considered to all intents and purposes a general warranty against such donor or donors, their heirs or representatives, to said donee or do-nees, grantee or grantees, for his, her or their use for the uses and purposes therein named, expressed and intended, and no other use and purpose whatever; and the land intended to be used for the streets, alleys, ways, commons or other public uses in any town or city or addition thereto shall be held in the corporate name thereof in trust to and for the use and purposes set forth and expressed or intended.\\\"\\nThe current successor to O.S.1921 \\u00a7 4474 and 11 O.S.1941 \\u00a7 515 is 11 O.S.Supp.1978 \\u00a7 41-109. It states:\\n\\\"When the plat or map has been completed and certified, acknowledged, approved and recorded as required by Sections 41-104 through 41-108 of this title, every donation or grant to the public, or to any individual, any religious society, or to any corporation or body politic, marked or noted as such on the plat or map, shall be deemed in law and equity a sufficient conveyance to best the fee simple of the tract or parcel of land as expressed in the plat or map. Such conveyance shall be considered for all intents and purposes a general warranty against the donor, his heirs or representatives, to the donee or grantee, for his use for the uses and purposes named in the plat or map, expressed and intended, and no other use and purpose whatever. The land intended to be used for the streets, alleys, ways, commons or other public uses in any municipality or addition thereto shall be held in the municipality's corporate name in trust to and for the use and purposes set forth and expressed or intended.\\\"\\n. Green v. City of Norman, 455 P.2d 58, 60 (Okl.1969); Schien v. City of Virden, 5 Ill.2d 494, 126 N.E.2d 201, 203 (1955); Hyland v. City of Eugene, 179 Or. 567, 173 P.2d 464, 466 (1946); Patrick v. Blake, 19 N.W.2d 220, 223 (1945); Board of Com'rs. of Oklahoma County v. Young, 186 Okl. 182, 97 P.2d 6, 10 (1939); State v. City of Manhatten, 115 Kan. 794, 225 P. 85 (1924).\\n. The Washington statute 1889-90 Ch. 19 \\u00a7 32 p. 603 provided that every donation or grant was tantamount to a quit claim deed.\"}"

okla/10438287.json

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+"{\"id\": \"10438287\", \"name\": \"AMERICAN FERTILIZER SPECIALISTS, INC., a corporation, Appellant, v. A. J. WOOD, Jr., Appellee\", \"name_abbreviation\": \"American Fertilizer Specialists, Inc. v. Wood\", \"decision_date\": \"1981-10-06\", \"docket_number\": \"No. 53660\", \"first_page\": \"592\", \"last_page\": \"597\", \"citations\": \"635 P.2d 592\", \"volume\": \"635\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T23:13:17.748851+00:00\", \"provenance\": \"CAP\", \"judges\": \"IRWIN, C. J., BARNES, V. C. J., and HODGES, SIMMS, HARGRAVE and OPA-LA, JJ., concur.\", \"parties\": \"AMERICAN FERTILIZER SPECIALISTS, INC., a corporation, Appellant, v. A. J. WOOD, Jr., Appellee.\", \"head_matter\": \"AMERICAN FERTILIZER SPECIALISTS, INC., a corporation, Appellant, v. A. J. WOOD, Jr., Appellee.\\nNo. 53660.\\nSupreme Court of Oklahoma.\\nOct. 6, 1981.\\nClyde Stallings, Durant, for appellant.\\nFischl, Culp, McMillin, Kern & Chaffin by Terry C. Kern, Ardmore, for appellee.\", \"word_count\": \"2999\", \"char_count\": \"17826\", \"text\": \"LAVENDER, Justice:\\nPlaintiff, a dealer in agricultural fertilizer, brought suit on open account for fertilizer sold and delivered to defendant for use on defendant's grass lands. By way of defense, defendant alleges breach of an implied warranty of fitness for a particular purpose and breach of an implied warranty of merchantability under the Uniform Commercial Code-Sales.\\nPlaintiff does not contest its status as a \\\"merchant\\\" within the meaning of \\u00a7 2-104(1), but contends that defendant failed to meet its burden of proving a breach as to the accepted goods as is required by \\u00a7 2-607(4), and failed to give the seller (plaintiff) timely notice thereof pursuant to \\u00a7 2-607(3)(a), particularly in light of the provisions of \\u00a7 l-204(2).\\nIn jury-waived civil actions trial court's findings have force and effect of the jury's verdict and when finding is general it is finding of every specific thing necessary to be found sustaining general judgment and such judgment will not be disturbed on appeal in the absence of legal errors, if there is any competent evidence reasonably tending to support the trial court's conclusion. -\\nDefendant, a cattleman-rancher, had pursued a successful program of fertilizing his grass lands for fifteen to twenty years. In recent years, he had applied a fertilizer called 10-20-10 during the first of March each year with what he characterized as near perfect results. On March 4, 1978, defendant was approached by Crawford, a sales representative of plaintiff, to induce a sale by plaintiff to defendant of commercial fertilizer. Crawford suggested that defendant use Triple 19 fertilizer which he said would get better results, representing that it was less costly and better per unit. Defendant and Crawford inspected a tract of defendant's land known as the South Taylor Alfalfa 40. The tract had fescue and clovers on it which had started Spring growth. Crawford agreed that the land was ready to be fertilized and stated that his Triple 19 would do the job. The ground was moist and the temperature was normal for early March. Crawford was informed that defendant used the ground both for cattle grazing and for haying. Crawford recommended that the land be fertilized by application of 250 pounds per acre, the quantity which defendant had applied of 10-20 \\u2014 10 in past years. Defendant agreed to purchase Triple 19 fertilizer from plaintiff for application on 183 acres including the 40-acre tract, the fertilizer to be spread by Crawford. The fertilizer was spread on March 11. Defendant mailed a check for the fertilizer to plaintiff on April 4, 1978. A second application of fertilizer was made on April 6. Based upon past experience, defendant expected visible results within three days from application; but observing none, he summoned two representatives of plaintiff for a meeting on April 22. One of the representatives agreed that the fertilizer was not doing what it was supposed to do and that \\\"he\\\" would make it right. Defendant stopped payment on the check on about April 16. Plaintiff did nothing further. Thereupon defendant contracted with another fertilizer company to apply Triple 17 to said lands, except for the 40-acre tract, with good results. The South Taylor Alfalfa 40 yielded only half the hay as in previous years, and less than adjoining lands which had no application of fertilizer at all. The cattle pastured on the lands fertilized with Triple 19 were adversely affected in that they suffered a condition not observed in defendant's cattle pastured on the land in previous years. Defendant refused to pay plaintiff for the fertilizer.\\nSimmons testified for plaintiff, stating that in agriculture you cannot guarantee anything other than the analysis of units per hundred weight. He testified that there are something like 57 things that control the making of a crop, but none were identified, nor was there any testimony that any of them affected defendant's hay crop. He further testified that within three weeks or 30 days from the application of Triple 19 the grass should look dark green and \\\"come on.\\\" A farmer who fertilizes expects to grow something, to get more growth, better quality, and more protein. If you get a good rain after fertilization, you should start getting some growth and the grass should start looking dark green within a week. After fertilization and rain, one should be able to look at the fertilized land and tell if the fertilizer is working. Simmons said that upon inspection he could not see any visible change between the fertilized and unfertilized property. When defendant asked Simmons what he thought of it, Simmons replied \\\"it's just not doing what it's supposed to do,\\\" also stating he would make it right. Without further detailing the evidence before the trial court, we have no hesitancy in holding there was competent evidence reasonably tending to support the trial court's conclusion, and to support the judgment in favor of defendant on the ground of breach of implied warranty under both \\u00a7 2-314 and \\u00a7 2-315 of 12A O.S.1971.\\nThe defendant not only had reason to know the particular purpose for which defendant required fertilizer, viz., to increase the quality and quantity of his grass crop, he relied upon plaintiff's salesman's skill and judgment to select and furnish suitable fertilizer. Defendant had been a satisfied and successful user of 10-20\\u201410 fertilizer for many years. He had not heard of Triple 19 until the salesman suggested it to him, and in reliance upon the salesman's representations that Triple 19 would get better results, would be less costly and better per unit, he contracted for the product.\\nThe concept of \\\"merchantability\\\" referred to in \\u00a7 2-314 connotes not best quality or perfection in detail, but it does require, at the very least, that the goods operate for their ordinary purpose.\\nWhere the seller is a merchant and the facts so warrant, there may be an implied warranty of merchantability and also one of fitness for the particular purpose. And where there is a breach of warranty of merchantability, it is unnecessary to determine whether a seller is liable for breach of a warranty of fitness.\\nHaving established the existence of the warranty, the buyer has the added burden of proving that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained. Plaintiff urges that where the buyer's proof is based upon speculation and conjecture, a mere showing of \\\"poor results\\\" from the use of the product falls short of meeting the established standard for proximate cause, citing the case of Olin Mathieson Chemical Corp. v. Moushon, 93 Ill.App.2d 280, 235 N.E.2d 263 (1968). While we agree that the rule set forth in Olin Mathieson is a correct statement of the law, the case is clearly distinguishable from the case at bar. In Olin Mathieson, the buyer purchased explosives from the seller for blasting in a rock quarry. A mere showing on the part of the buyer of poor results as compared with prior detonations at the quarry did not establish that the explosive failed to measure up to an implied warranty of fitness for the purpose intended. As the Court observed: \\\"It could also be that the poor results were caused by failing to remove the broken rock from the toe and the loading to within five feet of the top. There is even a possibility that the shot holes were improperly drilled or that a difference in the rock formation was the cause. We have no evidence in this record that anything was wrong with the explosive except by reasoning backward, i. e., the result was poor; therefore, something must have been wrong with the explosive. In view of the other possibilities this is not enough.\\\"\\nFacts may be proved by circumstantial, as well as by positive or direct evidence, and it is not necessary that the proof rise to that degree of certainty which will exclude every other reasonable conclusion than the one arrived at by the trier of the facts. It is only required that it appears more probable that the defendant's poor grass crop was the result of the failure of the fertilizer sold by plaintiff to defendant to nourish and enrich defendant's grass lands than any other possible cause. This rule has been recognized in other jurisdictions and applied to cases involving breach of warranty under the Uniform Commercial Code. It has also been held that where the warranty was as to the ingredients of fertilizer, evidence of the effect of the fertilizer on crops was admissible in connection with proof of the kind of soil, manner of cultivation, accidents of season, and other pertinent facts to prove that it did not contain the ingredients stated or in the proportion specified. There was more than ample evidence from which the court below as the trier of the facts could reasonably infer that the fertilizer sold by the plaintiff to the defendant did not meet the prescribed standard of merchantability, was not fit for the ordinary purpose for which it was sold, and that the poor grass crop on defendant's lands was the proximate result thereof.\\nThe next issue for consideration is whether under the facts and circumstances of this case the lapse of forty-two days from the date of the first application of fertilizer before notice of the breach was given constitutes a \\\"reasonable time\\\" under \\u00a7 2-607(3)(a) of the Commercial Code. While the defendant testified that visible results from the application of fertilizer might be expected as early as three days after application, all of the witnesses testifying on the subject agreed that such results should be forthcoming within three weeks to thirty days. Thus there was competent evidence on the basis of which the court below could reasonably conclude that defendant should have discovered the breach of warranty within twelve days from the date of the giving of notice. In order for the buyer to avoid liability for the payment of goods accepted, he must notify the seller within a reasonable time after he discovers or should have discovered a breach of warranty. The notification may be either oral or in writing and is sufficient if it is informative to the seller of the general nature of the difficulty encountered with the warranted goods by the holding of a majority of the cases dealing with this subject.\\nIn the case of L. A. Green Seed Company of Arkansas v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969) the court said: \\\"The purpose of the statutory requirement of notice to the seller of breach of warranty is to enable the seller to minimize damages in some manner, such as correcting the defect, and also to give the seller some immunity against stale claims. Of course, the sufficiency of notice and what is considered to be a reasonable time within which to give notice of breach of warranty are ordinarily questions of fact for the jury, based upon the circumstances in each case.\\\"\\nWhat constitutes notice within a reasonable time must necessarily vary with the facts and circumstances of each case.\\nIn the case before us, the elapsed time of twelve days from the date of the discovery by defendant of the defect in the product and the giving notice thereof to the plaintiff did not under the facts and circumstances of this case constitute untimely notice. \\\"Discovery\\\" that the fertilizer was not working was not a sudden event whose arrival could be anticipated or commemorated by the stroke of a clock. Rather, it was a gradual realization predicated upon day to day observation which when taking into account weather conditions and past experience with fertilizer led to the conclusion that the fertilizer was not performing in the manner reasonably to be expected.\\nFinally, plaintiff alleges that the remarks from the bench of the trial judge made upon rendering judgment indicated bias and prejudice on the part of the judge. The language involved was:\\n\\\"I think when you hire someone to do something and it's not done or the results do not come about as forecast, be it implied warranty breach or be it no fertilizer was put down, that you have violated that person's rights.\\\" And, \\\"I grew up on a farm and we applied fertilizer and got results every time, one way or the other.\\\"\\nUnder the evidence in the case at bar, we find that the trial court's observations were fair and reasonable inferences and conclusions to be drawn therefrom, and that the same do not constitute reversible error.\\nDefendant's motion for additional attorney fees for services on appeal is authorized to be presented to the trial court.\\nThe judgment of the trial court is affirmed, however the cause is remanded to that court for consideration of defendant's motion for additional attorney fees.\\nIRWIN, C. J., BARNES, V. C. J., and HODGES, SIMMS, HARGRAVE and OPA-LA, JJ., concur.\\n. 12 A O.S.1971, \\u00a7 2-101 et seq.\\nSection 2-315 in pertinent part provides: \\\"Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is . an implied warranty that the goods shall be fit for such purpose.\\\"\\nSection 2-314 insofar as is pertinent provides: \\\"(1) Unless excluded or modified . a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind .\\n*\\n\\\"(2) Goods to be merchantable must be at least such as . (c) are fit for the ordinary purposes for which such goods are used . \\\"\\n. Section 2-104(1) provides: \\\" 'Merchant' means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by the employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.\\\"\\n. Section 2-607(4) provides: \\\"The burden is on the buyer to establish any breach with respect to the goods accepted.\\\"\\n. Section 2-607(3)(a) provides: \\\"Where a tender has been accepted . the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy;\\n.Section 1-204(2) provides: \\\"What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action.\\\"\\n. Givens v. Western Paving Co., Okl., 261 P.2d 450 (1953); Rain v. Balph, Okl., 293 P.2d 359 (1956); Sparks v. Midland Supply Company, Okl., 339 P.2d 1056 (1959); Davis v. Pumpco, Inc., Okl.App., 519 P.2d 557; Old Albany Estates v. Highland Carpet Mills, Okl., 604 P.2d 849 (1980).\\n. Perry v. Lawson Ford Tractor Co., Okl., 613 P.2d 458 (1980).\\n. See Uniform Commercial Code Comment to section 2-315 which states in part:\\n\\\"2. A 'particular purpose' differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. For example, shoes are generally used for the purpose of walking upon ordinary ground, but a seller may know that a particular pair was selected to be used for climbing mountains.\\n\\\"A contract may of course include both a warranty of merchantability and one of fitness for a particular purpose.\\\"\\n. Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968).\\n. See Uniform Commercial Code Comment to \\u00a7 2-314 which states, in part:\\n\\\"13. In an action based on breach of warranty, it is of course necessary to show not only the existence of the warranty but the fact that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained.\\\"\\n. Chickasha Cotton Oil Company v. Hancock, Okl., 306 P.2d 330 (1957); McCasland v. Burton, Okl., 292 P.2d 396 (1956); Sisler v. Jackson, Okl., 460 P.2d 903 (1969); Marathon Battery Company v. Kilpatrick, Okl., 418 P.2d 900 (1966); Pacific Ins. Co. of New York v. Frank, Okl., 452 P.2d 794 (1969); West Edmond Hunton Lime Unit v. Lillard, Okl., 265 P.2d 730 (1954).\\n. Vermont Food Industries, Inc. v. Ralston Purina Co., (C.A.2d Cir.), 514 F.2d 456 (1975); Vlases v. Montgomery Ward & Company, (C.A.3rd Cir.), 377 F.2d 846 (1967); Eichenberger v. Wilhelm, N.D., 244 N.W.2d 691 (1976); Controltek, Inc. v. Kwikee Enterprises, Inc., 284 Or. 123, 585 P.2d 670 (1978).\\n. Hampton Guano Co. v. Hill Live-Stock Co., 168 N.C. 442, 84 S.E. 774. See also 81 L.Ed. 994 (1924).\\n. Wooten v. Motorola Communications & Elec., Inc., Okl., 488 P.2d 1284 (1971); Rich's Restaurant v. McFann Enterprises, Inc., Colo., 570 P.2d 1305 (1977).\\n. 93 A.L.R.3d 363, 372, 375; 17 A.L.R.3d 1010, 1111. See also Uniform Commercial Code Comment No. 4 to \\u00a7 2-607.\\n. In accord, see: Larrance Tank Corporation v. Burrough, Okl., 476 P. 346 (1970); Rich's Restaurant v. McFann Enterprises, Inc., Colo., 570 P.2d 1305 (1977); MacGregor v. McReki, Inc., 30 Colo.App. 196, 494 P.2d 1297 (1970); Jeffries v. Clark's Restaurant Enterprises, 20 Wash.App. 428, 580 P.2d 1103; Kasey v. Suburban Gas Heat v. Kennewick, Inc., 60 Wash.2d 468, 374 P.2d 549 (1962); Jarstad v. Takoma Outdoor Recreation, Inc., 10 Wash.App. 551, 519 P.2d 278 (1974); 67 Am.Jur.2d Sales, \\u00a7 730, 41 A.L.R.2d 812, 825; 53 A.L.R.2d 270.\\n. 17 A.L.R.3d 1010, 1112; 93 A.L.R.3d 363, 387; 41 A.L.R.2d 812.\\n. Moses v. Miller, Okl., 268 P.2d 900 (1954).\"}"

okla/10441303.json

@@ -0,0 +1 @@
+"{\"id\": \"10441303\", \"name\": \"Nick RICHARDS, Appellee, v. The CITY OF LAWTON, Oklahoma, a municipal corporation, Appellant\", \"name_abbreviation\": \"Richards v. City of Lawton\", \"decision_date\": \"1981-06-09\", \"docket_number\": \"No. 52439\", \"first_page\": \"1260\", \"last_page\": \"1263\", \"citations\": \"629 P.2d 1260\", \"volume\": \"629\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T02:41:34.706397+00:00\", \"provenance\": \"CAP\", \"judges\": \"IRWIN, C. J., BARNES, V. C. J., and HODGES, LAVENDER, SIMMS, DOOLIN and HARGRAVE, JJ., concur.\", \"parties\": \"Nick RICHARDS, Appellee, v. The CITY OF LAWTON, Oklahoma, a municipal corporation, Appellant.\", \"head_matter\": \"Nick RICHARDS, Appellee, v. The CITY OF LAWTON, Oklahoma, a municipal corporation, Appellant.\\nNo. 52439.\\nSupreme Court of Oklahoma.\\nJune 9, 1981.\\nRussell D. Bennett, Lawton, for appellant.\\nDennis Butler, Lawton, for appellee.\", \"word_count\": \"1255\", \"char_count\": \"7563\", \"text\": \"MEMORANDUM DECISION\\nOP ALA, Justice:\\nThis cause is reached for consideration of appellee's petition for certiorari to the Court of Appeals, Div. 1. Upon examination of the record and of the instruments on file, certiorari is granted. The opinion of the Court of Appeals is vacated, the judgment of the trial court is reversed and the cause is remanded to the District Court, Comanche County, Hon. Jack Brock, Judge, with directions to render judgment for the City of Lawton because the record fails to support the occurrence of any actionable wrong. The court's decision, effected by this opinion in memorandum form as authorized Art. 7 \\u00a7 5, Okl.Gon., rests on the reasons to be recited.\\n1. This was a claim for damages from an alleged municipally-inflicted injury to an unimproved (vacant) tract of land. The harm is said to have been caused by the City's improper maintenance of drainage ditches built by it when the grade level of an abutting street was changed. The property \\u2014 located in a business-zoned district\\u2014 is claimed to have been rendered worthless for commercial development mainly because, after raising the street level some three feet above that of the land in suit, the City failed adequately to maintain the drainage ditches designed to protect the property from spilling waters. The present level of the street, combined with the clogged-up condition of the drainage ditches, is said to make the property extremely vulnerable to damage by flooding.\\n2. The City demurred to the petition and to the evidence. It also moved for a directed verdict. Its defense was anchored on the provisions of 11 O.S. 1971 \\u00a7 82. The cited statute \\u2014 we are told \\u2014 affords an exclusive remedy for damages caused by the change of an established street grade level. The argument advanced by the City is that since the terms of that statute contemplate recovery for damage to permanent improvements only, no liability can ever be predicated upon harm to unimproved land.\\n3. The Court of Appeals, which reversed the judgment of the trial court and remanded the cause with directions to dismiss the action, based its decision on the City's argument that \\u00a7 82 does not avail to the owner as a foundation of municipal liability for recovery of damages to raw land from a change in grade.\\n4. We grant certiorari for the sole purpose of determining whether \\u00a7 82 or the common-law was the foundation of the owner's claim in suit. We answer this question by characterizing the owner's suit as one in tort founded on common-law negligence.\\n5. The owner's claim against the City rests neither on the constitutional concept of \\\"taking\\\" nor on the maintenance of a common-law nuisance. No argument is advanced here in support of either theory of recovery.\\nThe Court of Appeals mischaracterized the suit as a statutory action under \\u00a7 82. The owner's pleadings unmistakably demonstrate that he declared his claim upon a single cause of action ex delicto in common-law negligence. The owner's proof did not vary from the pleadings framework. The essential elements of the claim, as it was stated and as the owner's proof unfolded itself at the trial, appear to be: (a) the City's change of the abutting street grade, followed by a breach of duty properly to maintain the drainage ditches alongside that street, (b) exposed the premises to the hazard of flooding and (c) resulted in diminution of fair market value of the land or made that land undesirable for loan purposes.\\n6. A common-law action against a municipality for damages to property from a change in grade of an abutting street or highway must be grounded in negligence. Municipal liability sans fault is not recognized. The terms of \\u00a7 82, which we find entirely inapposite here, do not operate to restrict municipal liability for a common-law tort. Rather, they clearly appear to provide an additional statutory cause of action, independent of fault, for damages to improvements only.\\n7. The negligence for which recovery was sought here is said to have resulted from the City's alleged breach of its duty properly to maintain the drainage ditches rather than merely from negligence in changing the grade level of the abutting street. Negligence in the actual act of regrading was neither pled nor shown. The drainage system installed by the City after regrading was admittedly adequate.\\nAn essential element in every common-law negligence-based tort claim is the occurrence of damage proximately caused by the breach of an alleged duty. The elements of damage asserted by the owner to be permanent \\u2014 expressed in terms of \\\"diminution of fair market value\\\" (or severe impairment of loan value) \\u2014 may not be recovered in a negligence-based action for \\\"exposure to flooding\\\" unless, as a result of the City's negligence in failing properly to maintain the drainage ditches, permanent harm is shown to have occurred to the land from damage-dealing waters. The ill-maintained drainage ditches cannot be said to constitute a permanent harm to the property.\\n8. The opinion of the Court of Appeals, published in 51 OBJ 2359, is accordingly vacated. Trial court's judgment is reversed and cause remanded with directions to render judgment for the City.\\nIRWIN, C. J., BARNES, V. C. J., and HODGES, LAVENDER, SIMMS, DOOLIN and HARGRAVE, JJ., concur.\\n. The terms of 11 O.S. 1971 \\u00a7 82 [now codified as 11 O.S.Supp.1977 \\u00a7 36-111] provide in pertinent part: \\\"No change of any grade previously established by such city or incorporated town shall be made without making due compensation to the owners of abutting property for any damage thereby caused to the permanent improvements erected thereon with reference to the grade so previously established . . . \\\" (emphasis ours)\\n. City of Shawnee v. Bryant, Okl., 310 P.2d 754, 759 [1957],\\n. Wilson v. Portland, 132 Or. 509, 285 P. 1030, 1032 [1930]; McQuillin, 18 Municipal Corporations \\u00a7 37.220 [3rd Ed. 1977],\\n. Since the gravamen of this lawsuit is not fault-free liability under \\u00a7 82 but rather common-law negligence, we need not reach the issue whether \\u00a7 82 may ever be invoked as a basis for imposing liability for damages to unimproved (raw or vacant) land as well as to improvements thereon.\\n.The concept of municipal immunity from liability for a \\\"governmental\\\" function, if still viable, could not afford the City a shield in this case. The maintenance of street, sewer and drainage systems is commonly viewed as \\\"proprietary\\\", Oklahoma City v. Romano, Okl., 433 P.2d 924, 926 [1967]; City of Altus v. Martin, Okl., 268 P.2d 228, 231 [1954]; City of Mangum v. Garrett, 200 Okl. 274, 192 P.2d 998, 1000 [1948]; Spaur v. City of Pawhuska, 172 Okl. 285, 43 P.2d 408, 409-410 [1935],\\n. Loper v. Austin, Okl., 596 P.2d 544, 546 (1979).\\n. City of Ardmore v. Orr, 35 Okl. 305, 129 P. 867 [1913]; Oklahoma City v. Bethel, 175 Okl. 193, 51 P.2d 313 [1935]; McQuillin, 19 Municipal Corporations \\u00a7 53.125 [3rd Ed. 1977], Potential for physical damage to land from some neglected or violated duty is not enough to impose liability on a municipality when the action against it is founded on negligence. City of Tulsa v. Caudle, 193 Okl. 6, 141 P.2d 107, 108 [1943]. Injuria absque damno \\u2014 legal harm without resulting damage \\u2014 is not actionable when liability is sought to be predicated on common-law negligence. Jackson v. Clark, Okl., 264 P.2d 727, 728 [1953],\"}"

okla/10453440.json

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+"{\"id\": \"10453440\", \"name\": \"Donald R. REVELL, Petitioner, v. NORTHROP WORLDWIDE AIRCRAFT COMPANY, Fidelity & Casualty Company of New York, and the State Industrial Court, Respondents\", \"name_abbreviation\": \"Revell v. Northrop Worldwide Aircraft Co.\", \"decision_date\": \"1977-10-11\", \"docket_number\": \"No. 50850\", \"first_page\": \"127\", \"last_page\": \"129\", \"citations\": \"571 P.2d 127\", \"volume\": \"571\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T21:44:31.080743+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the Justices concur.\", \"parties\": \"Donald R. REVELL, Petitioner, v. NORTHROP WORLDWIDE AIRCRAFT COMPANY, Fidelity & Casualty Company of New York, and the State Industrial Court, Respondents.\", \"head_matter\": \"Donald R. REVELL, Petitioner, v. NORTHROP WORLDWIDE AIRCRAFT COMPANY, Fidelity & Casualty Company of New York, and the State Industrial Court, Respondents.\\nNo. 50850.\\nSupreme Court of Oklahoma.\\nOct. 11, 1977.\\nJames F. Fellingham, Anderson, Bonham, Brogden & Fellingham, Oklahoma City, for petitioner.\\nMilton R. Moon, Oklahoma City, for respondent.\", \"word_count\": \"1002\", \"char_count\": \"6268\", \"text\": \"SIMMS, Justice:\\nThis proceeding for review is determinable upon the single issue of whether an attempted appeal to State Industrial Court was timely filed.\\nWe are not herein called upon to decide the propriety of the trial judge's refusal to permit claimant to reopen to present further evidence.\\nClaim for compensation for alleged injury during covered employment was filed April 27,1976. Respondents generally and specifically denied allegations of the claim. After hearing on October 12, 1976, a trial judge sustained respondent's demurrer at close of claimant's evidence. Request to reopen and reset the case for presentation of further evidence to support the claim was denied, but counsel was advised matter of presenting further evidence could be presented on en banc appeal.\\nClaimant filed appeal to State Industrial Court en banc on October 14, 1976. On October 21, 1976, the trial judge filed written copy of the order sustaining demurrer to the evidence, with certification of mailing copies of the order to the parties. No appeal was filed within 10 days following entry of the order as required by 85 O.S. 1971, \\u00a7 77(9). Neither was appeal taken to Supreme Court within 20 days allowed for such proceeding under \\u00a7 29 of the Act. No further action was taken until November 3, 1976, when claimant filed what was styled an amendment to en banc appeal, praying remand of the matter to permit additional testimony, some thirteen days after rendition of the memorialized order.\\nRespondents filed motion to dismiss appeal from the trial judge's order, asserting State Industrial Court lack of jurisdiction to entertain any appeal, for claimant's failure to appeal from that order within 10 days allowed by statute and State Industrial Court Rules. No action was taken on respondents' motion, but an en banc order on appeal dated April 7, 1977 affirmed the trial judge's prior order as State Industrial Court order and judgment. Claimant then filed this proceeding for review.\\nClaimant recognizes our recent decision in Cassidy, etc. v. Dielson, Okl., 560 P.2d 188 (1977), but suggests this Court should either distinguish Dielsen from the present case, or reconsider the equities involved. A tenuous agreement urges State Industrial Court is a statutory court whose power and authority should be strictly construed. Argument is made that the statute, 85 O.S.1971, \\u00a7 91, makes State Industrial Court a court of record and grants those judges powers and prerogatives of district court judges. However, principles of equity are to be applied, and clear legislative intent cannot be abrogated by State Industrial Court enactment of rules which provide differences of time in appellate procedure.\\nIn essence, the argument asserts State Industrial Court judges and district court judges have the same power and authority in view of \\u00a7 91, supra. The primary concept in filing appeal is giving of notice so an appellate court can assume jurisdiction and weigh substantial rights of the parties. Thus, when demurrer to the evidence was sustained with refusal to permit claimant to adduce additional evidence, this was tantamount to a district court's pronouncing judgment and filing appeal en banc two days later invoked State Industrial Court appellate jurisdiction without regard to rules enacted by State Industrial Court.\\nFiling, hearing and adjudication of compensation claims before State Industrial Court are not actions, but special proceedings. Sartin v. Moran-Buckner Co., 189 Okl. 178, 114 P.2d 938; Cassidy, etc. v. Dielsen, supra, and cases cited. Although State Industrial Court adopted and promulgated rules of procedure, the rights of appeal are defined and limited by statutes, \\u00a7 29, 77(9). The latter statute provides:\\n\\\"The Commission shall adopt such rules as may be necessary to insure the following procedure; . Upon the completion of such hearing or hearings, the Commissioner hearing said cause shall make such order, decision or award as he may deem just, advisable and equitable in the matter. Either party feeling himself aggrieved by such order, decision or award shall, within ten (10) days have the right to take an appeal from the order, decision or award of the trial Commissioner to the entire Commission. *\\nThe right of appeal to State Industrial Court en banc arises from the quoted provision, which expressly declares an appeal must be taken from an order or decision within 10 days. Adoption of Rule 17, relating to filing and mailing of orders or awards, in no manner conflicts with statutory provisions governing appeals. The time for filing appeal from the trial judge's order did not begin to run until copy of that order was filed and mailed on October 21, 1976. Until those requirements were complied with no order was extant, and no appeal could be taken. Claimant's \\\"amended\\\" notice of appeal filed on November 3, 1976, was beyond the 10 days prescribed and therefore insufficient to invoke appellate jurisdiction of State Industrial Court. Mills v. W. E. Logan & Sons, Okl., 281 P.2d 175 (1955). Cassidy v. Dielsen, supra.\\nAn ancillary issue should be noted. Orders and awards entered by a trial judge are final and conclusive if unappealed from within time prescribed by provisions of the Act governing appeals. 85 O.S.1971, \\u00a7 29, 77(9). Garcia v. Western Mtr. Freight, Okl., 528 P.2d 304 (1974). Where appeal is not timely filed, under one of these statutes' jurisdiction to entertain an appeal is lacking. Garcia, supra; Johnson v. L&S Bearing Co., Okl., 463 P.2d 986 (1969). The trial judge's order became final because un-appealed from within 10 days prescribed. State Industrial Court en banc therefore lacked jurisdiction to hear the attempted appeal and the en banc order upon which this appeal is predicated was a nullity.\\nProceeding for review dismissed.\\nAll the Justices concur.\\n. Industrial Court Rule 17 says: \\\"No new evidence will be considered on appeal.\\\"\"}"

okla/10470824.json

@@ -0,0 +1 @@
+"{\"id\": \"10470824\", \"name\": \"James E. PUGH, Verda J. Pugh, and Roye Realty & Developing, Inc., Appellants, v. James P. GILBREATH and Wanda F. Gilbreath, Appellees\", \"name_abbreviation\": \"Pugh v. Gilbreath\", \"decision_date\": \"1977-09-27\", \"docket_number\": \"No. 50011\", \"first_page\": \"1241\", \"last_page\": \"1245\", \"citations\": \"571 P.2d 1241\", \"volume\": \"571\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Civil Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T21:44:31.080743+00:00\", \"provenance\": \"CAP\", \"judges\": \"REYNOLDS, P. J., and BOX, J., concur.\", \"parties\": \"James E. PUGH, Verda J. Pugh, and Roye Realty & Developing, Inc., Appellants, v. James P. GILBREATH and Wanda F. Gilbreath, Appellees.\", \"head_matter\": \"James E. PUGH, Verda J. Pugh, and Roye Realty & Developing, Inc., Appellants, v. James P. GILBREATH and Wanda F. Gilbreath, Appellees.\\nNo. 50011.\\nCourt of Appeals of Oklahoma, Division No. 1.\\nSept. 27, 1977.\\nSupplemental Opinion on Denial of Rehearing Oct. 25, 1977.\\nReleased for Publication by Order of Court of Appeals Nov. 17, 1977.\\nNat Henderson, Stigler, for appellants James E. Pugh and Verda J. Pugh.\\nMichael D. Lee, Stigler, for appellant Roye Realty & Developing, Inc.\\nJohn F. Hudson, Stigler, for appellees.\", \"word_count\": \"2271\", \"char_count\": \"13648\", \"text\": \"ROMANG, Judge:\\nThis action concerning title to a strip of land was finally decided by the trial court on stipulated facts. James and Beatrice Kelley (Grantors) conveyed certain described real property by warranty deed to James and Wanda Gilbreath (Defendants) bn December 2, 1971. The Defendants took possession of the described property and made improvements thereon including the construction of a barn and erection of a fence. The Defendants later determined that due to mismeasurement, a portion of the barn and fence had been placed on an adjoining strip of land owned by the Grantors and not earlier conveyed. On discovery (August, 1972) the Defendants went to the Grantors and orally agreed to buy an additional 35 foot wide strip on which the improvements had been placed. The Defendants gave the Grantors a check for $250.00 but no other writing was exchanged and no deed was delivered. The check was in customary form with the comment \\\"Land our 5 acres.\\\"\\nOn August 27, 1973 the Plaintiff, Roye Realty & Developing, Inc. (Realty Company) acquired from the Grantors by warranty deed (second grant) a piece of real property adjoining the property deeded to the Defendants which included the strip of land which was the subject of the August, 1972 transaction between the Grantors and the Defendants. On December 28, 1973 the Plaintiffs, James and Verda Pugh, entered into a contract for a deed with Plaintiff Realty Co. On the making of a survey of the second grant in preparation of concluding the contract for a deed, it was discovered that the Defendants were in possession of a 35 foot strip of land covered by the deed from the Grantors to the Plaintiff Realty Co. After discussion the Plaintiffs brought this action for title, possession and surface damages. The Defendants counterclaimed to quiet their title.\\nThe trial court found that the Plaintiffs were on notice of Defendants' claim by virtue of Defendants' possession and that the Plaintiffs failed to inquire as to the Defendants' interest. He accordingly entered a judgment for the Defendants and the Plaintiffs appeal.\\nIt is settled law that open, notorious possession is notice to all of the possessor's interest in the property, whatever that interest is. Accordingly, a purchaser of real property in the open, notorious possession of someone not his grantor is put on inquiry as to the real nature of the possessor's interest, and if he purchases without in quiry, he takes subject to that interest. Adams v. White, 40 Okl. 535, 139 P. 514 (1914), and Geb v. Wilkins, 399 P.2d 456 (Okl.1965). Thus the issue at hand depends on what interest the Defendants acquired in the strip of land by virtue of the August, 1972 transaction for it is only this interest which the Plaintiffs were on notice of.\\nThe transaction of August, 1972 was not in writing except for the check. It is not contended that this check was a sufficient memorandum to take the transaction out of the statute of frauds. 15 O.S.1971, \\u00a7 136. See also McMonigle v. Poorhorse, 174 Okl. 534, 51 P.2d 288 (1935). Nor can it be contended that the contract was fully executed since no deed has yet conveyed title to the Defendants. The argument of substance is that the contract was sufficiently performed to permit equity to specifically perform the agreement outside the statute of frauds and to enforce the Defendants' equitable title. We believe this conclusion is not in accord with Oklahoma law.\\nThe doctrine of part performance is generally agreed on in the United States but its numerous details lead to splits in the authorities. See 2 Corbin on Contracts \\u00a7 434 (1950) and 3 Williston on Contracts \\u00a7 494 (3rd Ed. 1960). Much of the division hinges on what portion of the vendee's performance is necessary to take an oral agreement outside the statute. While some courts have held complete payment is sufficient, the Oklahoma authorities hold that payment alone is insufficient. McMonigle v. Poorhorse, supra, and Adams v. White, supra. See also Restatement of Contracts \\u00a7 197 illustration 3 (1932). The reason seems to be that inasmuch as the relief is in equity, the remedy of specific performance is not necessary where only money has changed hands since the equity court can easily restore the status quo by ordering the vendor to return the money.\\nBut where the vendee has taken possession of the property and made valuable improvements \\\"pursuant to the [oral] contract . . McMonigle v. Poorhorse, supra 51 P.2d at 290, the courts of equity will specifically enforce the vendor's oral promise to convey. The difficulty in this case is that, so far as the record shows, the Defendants took possession and made improvements in erroneous reliance on the written deed of December 2, 1971 and before the oral transaction of August, 1972. While the Restatement in \\u00a7 197(b) recognizes the taking or retaining of possession, this is counter to Oklahoma easelaw. In Collins v. Lackey, 31 Okl. 776, 123 P. 1118 (1912) the Supreme Court noted that for possession and improvements to take an oral agreement out of the statute they must have occurred subsequent to the agreement and in pursuit of the agreement. In Collins the purchaser under the oral agreement had taken possession and made some improvements prior to the intervening legal interests of another purchaser. The record purchaser received a deed and recorded it before the first purchaser received and recorded his deed. The Court noted that it made no difference whether he had paid the price before or after the record purchaser acquired her deed since payment alone does not satisfy the statute. Collins at 1119. They further noted that the statute was satisfied by payment followed by possession and the making of valuable improvements. Collins at 1119. While possession alone in pursuance of the oral contract might be sufficient, the Court noted that\\n. in order for possession alone to authorize specific performance, it must be attended by certain circumstances; it must be notorious, exclusive, and delivered or taken in pursuance of the alleged contract . . . One who is already in possession and continues such possession after the making of a parol contract for purchase does not thereby take the contract out of the statute. An entry made after the parol agreement, not in pursuance thereof, and without the knowledge of the vendor, is a trespass, and does not authorize a decree of specific performance. Such entry, in order to authorize specific performance, must be in pursuance of and on the faith of the contract. Collins, supra at 1120.\\nIn Collins, as here, the oral purchaser had occupied a part of the lot in question even before the oral agreement although some of his acts had occurred subsequently. Nevertheless, the Court held his acts of possession and improvement were not in pursuance of the oral contract and, hence, did not remove the transaction from the statute.\\nOur case, however, is not on all fours. For one, none of the alleged acts of possession or improvement occurred subsequent to the oral transaction and could not have been in pursuance to the oral contract. Secondly, the continued possession was with the knowledge of the vendor. Thirdly, in contrast to Collins the Defendants' possession was sufficient to factually put the Plaintiffs on notice of their claim, such as it was.\\nThe equitable character of the part performance doctrine can easily be seen in the above cases. It is more precisely stated in the Tentative Draft of the Restatement of Contracts (2d) \\u00a7 197:\\nA contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific performance.\\nCollins v. Lackey, supra, at 1120 also made it clear that while the parties to an oral transaction can perform the agreement at will, that a subsequent purchaser from the grantor may avail himself of the statute.\\nOn this record we find no injury to the Defendants resulting from their reliance on the oral transaction of August, 1972. Whatever their liability for trespass on that date has not been aggravated by their subsequent reliance on the oral contract. While the Plaintiffs were clearly on notice of their interest, we believe that inquiry would have disclosed that the rights acquired in August, 1972, if any, were not specifically enforceable.\\nWe believe that our opinion raises potential factual issues not addressed by the parties' stipulations. To be certain that our view of the record is supported in fact, we will remand the case for further proceedings in the trial court, including, if necessary, trial of any new disputed facts.\\nREVERSED AND REMANDED.\\nREYNOLDS, P. J., and BOX, J., concur.\"}"

okla/10472409.json

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+"{\"id\": \"10472409\", \"name\": \"Luther Vernon FRANCIS, Appellant, v. The STATE of Oklahoma, Appellee\", \"name_abbreviation\": \"Francis v. State\", \"decision_date\": \"1978-09-19\", \"docket_number\": \"No. F-77-384\", \"first_page\": \"1359\", \"last_page\": \"1364\", \"citations\": \"584 P.2d 1359\", \"volume\": \"584\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T20:35:25.580797+00:00\", \"provenance\": \"CAP\", \"judges\": \"BUSSEY, P. J., concurs in results.\", \"parties\": \"Luther Vernon FRANCIS, Appellant, v. The STATE of Oklahoma, Appellee.\", \"head_matter\": \"Luther Vernon FRANCIS, Appellant, v. The STATE of Oklahoma, Appellee.\\nNo. F-77-384.\\nCourt of Criminal Appeals of Oklahoma.\\nSept. 19, 1978.\\nFrank R. Courbois, Oklahoma City, for appellant.\\nLarry Derryberry, Atty. Gen., Givens L. Adams, Asst. Atty. Gen., for appellee.\", \"word_count\": \"2446\", \"char_count\": \"14529\", \"text\": \"OPINION\\nBRETT, Judge:\\nAppellant, Luther Vernon Francis, hereinafter referred to as the defendant, was tried in the District Court, Oklahoma County, Case No. CRF \\u2014 75-4012, with Possession of Heroin With Intent to Distribute, Second and Subsequent offense, in violation of 63 O.S.Supp.1977, \\u00a7 2-401. The case was tried to a jury and a guilty verdict was returned. Punishment was assessed at ten (10) years' imprisonment. From judgment and sentence, defendant has perfected a timely appeal to this Court.\\nState's evidence showed that on October 7, 1975, agents for the Oklahoma Bureau of Narcotics and Dangerous Drugs, and members of the Midwest City Police Department, were conducting a search of an apartment in Midwest City, purs\\u00fcant to a warrant. During the course of the search, defendant came to the apartment, which was not his, and knocked upon the door. The police admitted him and then searched him, discovering in his pocket what was later described to be one-half ounce of 16% pure heroin, wrapped in a plastic bag. Defendant was then arrested.\\nDefendant rested without presenting any evidence.\\nIn support of the second and subsequent charge the State showed that the defendant had been previously convicted of Sale of Heroin.\\nDefendant's sole contention on appeal is that the trial court erroneously overruled his motion to suppress the heroin, on the grounds that it was obtained through an illegal search.\\nDefendant was searched without a warrant and thus the State must show that the search came within one of the few narrowly delineated exceptions to the Fourth Amendments requirement for a warrant. The two officers who greeted the defendant at the door of the apartment, Detective Hill and Agent Birdsong, both testified that prior to searching the defendant, he had committed no offense in their presence nor did they have probable cause to believe that he had done so. The search thus cannot be justified as incident to a lawful arrest.\\nNo facts were advanced by the officers which would have given them probable cause to search, which in combination with \\\"exigent circumstances,\\\" could excuse a warrantless intrusion. Nor was there any evidence that defendant consented to the search.\\nIn support of the validity of the search, the State attempts to show that when the defendant came to the door of the apartment the circumstances were such that the officers were justified in frisking defendant for offensive weapons, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that when the frisking officer felt a \\\"bulge\\\" in defendant's pocket, which \\\"bulge\\\" was of such nature that it could have been a weapon, the officer was thereupon justified in seizing the object causing the bulge. The object of course is the aforementioned plastic bag containing about one-half ounce of powder.\\nThe trial court apparently agreed with the aforementioned contentions of the State and overruled defendant's motion to suppress. Defendant's first assignment of error asserts under Terry v. Ohio, supra, and cases following, the officers were not justified in frisking the defendant.\\nDefendant next contends that even if the officers were justified in conducting a frisk, or \\\"pat-down,\\\" the extent of such search was exceeded when the officers intruded into defendant's pocket and removed the heroin, and said package of heroin could have in no manner resembled any kind of weapon to the officer conducting the pat-down.\\nIn order to properly consider these contentions it is necessary to explore the circumstances surrounding the search of the defendant is more depth. Detective Smith stated that he, Birdsong, two other detectives and several scout car officers had been searching the apartment for about an hour before the defendant knocked on the door. Smith stated that both he and Birdsong approached the door, that Birdsong opened it, and that they observed the defendant, who was alone. The record reflects the following during cross-examination:\\n\\\"Q. All right. And now, what happened when Mr. Birdsong opened the door and the two of you were standing there and here's this young man?\\n\\\"A. He stepped into the apartment there about one step, and he looked like he recognized Agent Birdsong. He had his hands in his pockets. He tried to make movements, which we didn't know what he had in his pockets.\\n\\\"Q. What kind of movements did he make?\\n\\\"A. He made movements like he was going to turn and run or something.\\n\\\"Q. Like he was going to turn and run?\\n\\\"A. Yes, sir.\\n\\\"Q. Were those the only kind of movements that he made?\\n\\\"A. Yes, sir.\\n\\\"Q. You surmised from the movements that he made with his hands in his pockets that he was going to turn and run?\\n\\\"A. Possibly that.\\n\\\"Q. All right. And so what did you do?\\n\\\"A. We grabbed a hold of him.\\n\\\"Q. Why did you grab a hold of him?\\n\\\"A. Because we didn't know but what he had a weapon inside his pockets.\\n\\\"Q. You didn't know if he had a weapon or not?\\n\\\"A. (No response)\\n\\\"Q. Did you surmise that he might have a weapon? Might use a weapon as he was turning to run?\\n\\\"A. There was no way of knowing if he was going to turn and run or whether he was stepping back and was going to pull a weapon and use it.\\\" [Tr. 42-43].\\nThereafter the defendant was placed against a refrigerator and Officer Smith patted him down, discovering a bulge in his right front pants pocket.\\nDetective Smith testified to these same events at preliminary hearing which evidence the trial court considered in ruling on the defendant's motion to suppress. At the preliminary Detective Smith failed to indicate that the defendant had his hands in his pockets when he made his \\\"quick movement.\\\" At trial, defense counsel impeached the witness with regard to this, using the preliminary transcript.\\nAgent Birdsong testified that he arrived at the apartment at about 5 minutes after the other officers arrived, and that the defendant knocked on the door 2 minutes thereafter. Birdsong stated that he alone opened the door, and that two persons were standing there, one of whom was the defendant. Birdsong invited defendant in and defendant, who had his hands in his pockets, stepped across the threshold, glanced up, saw Birdsong, and then \\\"turned and started to run,\\\" at which time Birdsong grabbed defendant. Birdsong also stated, almost as an afterthought, that prior to grabbing the defendant he requested the defendant to take his hands from his pockets, and defendant refused. Defendant was placed up against a refrigerator after a brief struggle and Birdsong forcibly removed defendant's hands from his pockets, while Officer Smith patted him down. Birdsong did not know if Smith found the heroin in defendant's pants or coat pocket.\\nAgent Birdsong also testified that several days prior to trial he testified in a hearing on defendant's motion to suppress. Further, that during the course of that hearing or subsequent thereto, he contacted Detective Smith by telephone in order to discuss who had removed the heroin from the defendant's pocket. Birdsong stated that he did this because the events had occurred over a year prior to the hearing and he did not know who had removed the heroin.\\nThe first question that must be answered is whether the officers were justified in patting down the defendant in the first place. The standard for such an intrusion is contained in Terry v. Ohio, supra, and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) and it is, like all Fourth Amendment standards, one of reasonableness.\\n\\\"Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. . . \\\" Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883, citations omitted.\\nIn Sibron v. New York, supra, it states: \\\"The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra.\\\" Sibron v. New York, 392 U.S. at 64, 88 S.Ct. at 1903.\\nWe think that in the present case, the officers were justified in frisking the defendant. The evidence showed that upon being admitted into an apartment which was being searched, the defendant made furtive motion and refused to take his hands out of his pocket when requested to do so by the officers. Although there were conflicts in the testimony, that much was uncontroverted and unimpeached.\\nHowever, we are unconvinced that the seizure of the bag of heroin from defendant's right front pants pocket was justified. The scope of a \\\"Terry pat-down\\\" is and must be strictly limited to a search for offensive weapons. When in course of a frisk the officer feels an object, he is not justified in seizing it unless it reasonably resembles an offensive weapon. Ricci v. State, Okl.Cr., 506 P.2d 601 (1973). As is amply stated by the Supreme Court of California:\\n\\\"Feeling a soft object in a suspect's pocket during a pat-down, absent unusual circumstances, does not warrant an officer's intrusion into a suspect's pocket to retrieve the object. A pat-down must 'be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.' (Terry v. Ohio, supra, 392 U.S. at p. 29, 88 S.Ct. at p. 1884). The obvious purpose of holding that officers cannot go beyond exploration of the surfaces of a suspect's clothing without being 'able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that [additional] intrusion' is to ensure that the scope of such a search cannot be exceeded at the mere discretion of an officer, but only upon discovery of tactile evidence particularly tending to corroborate suspicion that the suspect is armed. (Id., at pp. 21-22, 88 S.Ct. at p. 1880.) To permit officers to exceed the scope of a lawful pat-down whenever they feel a soft object by relying upon mere speculation that the object might be a razor blade concealed in a handkerchief, a 'sap,' or any other atypical weapon would be to hold that possession of any object, including a wallet, invites a plenary search of an individual's person. Such a holding would render meaningless Terry's requirement that pat-downs be limited in scope absent articulable grounds for an additional intrusion.\\\" People v. Collins, 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403 at 406 (1970).\\nHere the bulge felt by the Detective Smith in the defendant's pants pocket was described as being only slightly larger than a human forefinger. When asked whether the object was hard or soft, Detective Smith replied that it was \\\"medium.\\\" Further when asked if he really believed that the bulge was an offensive weapon, Detective Smith replied \\\"it possibly could have been a knife, yes.\\\" The State urges that we take this conclusion at face value rather than letting \\\"hindsight be the judge of the officer's decision to remove the questionable object.\\\" However the argument proves too much. Whenever a search without a warrant is made, and the issue is raised at trial, hindsight must necessarily be the judge. As is stated in Terry v. Ohio, 392 U.S. at 21, 22, 88 S.Ct. at 1880:\\n\\\"The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a Judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: Would the facts available to the officer at the moment of the seizure of the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused sanction.\\\" [Citations omitted]\\nDetective Smith's conclusion that the object could have been a knife flies in the face of his description of the object as being neither hard nor soft, but \\\"medium.\\\" Without quibbling over the relative meanings of these words it is obvious that since the object was not hard, it could not have been a knife. A small plastic bag containing no more than one-half ounce of powder, no matter how tightly rolled, would still feel pliable to inquisitive fingers. Further, since the bag was found in the defendant's front trouser pocket, it cannot be claimed that there were so many layers of cloth between the object and the searcher's fingers that the object's apparent condition of \\\"medium softness\\\" was due to the layers of cloth rather than to the nature of the object itself. A simple squeeze of the \\\"bulge\\\" would have revealed that the object was not a knife.\\nWe thus hold that although the frisk was proper in its inception, it revealed the presence of no object which a reasonable man could have concluded was a weapon. The judgment and sentence is therefore REVERSED.\\nBUSSEY, P. J., concurs in results.\\nCORNISH, J., concurs.\\nDetective Smith was also cross-examined with regard to this telephone call.\"}"

okla/10474756.json

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+"{\"id\": \"10474756\", \"name\": \"Patty PRICE and Mickey Price, Petitioners, v. Michael Phillip HARMS, Respondent\", \"name_abbreviation\": \"Price v. Harms\", \"decision_date\": \"1975-02-25\", \"docket_number\": \"No. 47038\", \"first_page\": \"836\", \"last_page\": \"839\", \"citations\": \"532 P.2d 836\", \"volume\": \"532\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T17:36:11.856572+00:00\", \"provenance\": \"CAP\", \"judges\": \"All of the Justices concur.\", \"parties\": \"Patty PRICE and Mickey Price, Petitioners, v. Michael Phillip HARMS, Respondent.\", \"head_matter\": \"Patty PRICE and Mickey Price, Petitioners, v. Michael Phillip HARMS, Respondent.\\nNo. 47038.\\nSupreme Court of Oklahoma.\\nFeb. 25, 1975.\\nKile & Rab\\u00f3n, Hugo, for petitioners.\\nBen A. Goff, Rhodes Hieronymus, Holloway & Wilson, Oklahoma City, for respondent.\", \"word_count\": \"1646\", \"char_count\": \"10774\", \"text\": \"LAVENDER, Justice:\\nPetitioners, hereafter respondents, d/b/a Citizens State Shows, owned and operated a traveling carnival, which furnished rides and concessions to fairs and local enterprises under contract. Some facilities owned by individuals, i. e., Dee Price, operated on a percentage basis with respondents, who provided bookings. The remainder operated under a family arrangement, between named respondents, Mickey Price and daughter Patty, which will be discussed later.\\nClaimant (Harms) had been hired as a laborer, and sometimes truck driver, whose labors included working around and with motors and machinery involved in different rides. Claimant had been hired by Mickey Price, who appeared to be in charge of operations, customarily paid claimant's wages in cash, and allowed draws to be made against wages. Respondent indicated possibility of an end-of-season bonus as partial compensation for driving a truck, avoiding expense of commercial license, since claimant was not employed directly as a truck driver.\\nOn May 19, 1973, the carnival was being torn down for removal from Henryetta, Oklahoma, to another location. Claimant was assisting in dismantling two steel towers before loading onto a truck. This was accomplished by use of block and tackle over a gear powered by a gasoline engine, which also provided power for the ferris wheel. During the dismantling process claimant's left hand caught in a rope, was pulled into the gear and the left hand and forearm amputated. Claimant was taken to a local hospital, and later removed to Oklahoma City hospital for treatment and eventual fitting of a prosthetic device.\\nClaim for compensation originally was filed against Mickey Price and Dee Robert Price, d/b/a Citizens State Shows. At the initial hearing, proper amendments allowed substitution of Patty Price as respondent, and delineation of issues for adjudication. Respondents admitted the fact of employment and occurrence of accidental injury, but affirmatively alleged in defense to the claim: (1) a carnival is not included as a hazardous employment, or defined as hazardous under the Act, 85 O.S.I971 \\u00a7 2, 3; (2) no employer-employee relationship existed between claimant and respondents.\\nUpon evidence, elaborated at two extended hearings, the trial court found claimant sustained accidental personal- injury in course of hazardous employment with respondents d/b/a Citizens State Shows. Claimant was entitled to temporary total compensation, together with scheduled compensation for amputation of left hand. This order (corrected to show Dee Robert Price not an employer) was affirmed by State Industrial Court on en banc appeal.\\nRespondents argue that a carnival is not hazardous employment, either by statutory enumeration or definition, upon basis of our decision in Skelly Oil Co. v. Waters, Okl., 348 P.2d 320 (1960), and related cases therein cited. These decisions held the test for determining whether employment was a \\\"workshop\\\" within meaning of the statute was not the presence of machinery, but whether such power driven machinery is merely incidental to operation of the business as a means of providing more efficient service. In view of our conclusion regarding this argument w - do not consider the question in relation to subdivision 3(14) of the statute, supra.\\nIt is unnecessary to review and distinguish numerous decisions, cited in support of this argument, involving retail establishments, used car lots, bottling plants, and restaurants. See Hurley v. O'Brien, 192 Okl. 490, 137 P.2d 592; Spraker v. Carroll, Okl., 416 P.2d 946 (1966) ; Teague v. State Industrial Commission, 112 Okl. 292, 240 P. 1053 (1925); Parlor v. John Mongold Drive-In Cafe, 204 Okl. 458, 230 P.2d 887 (1951). The decisions are inapplicable, and fallacy of the argument predicted thereon is apparent.\\nTo accord substance to this argument it is necessary to assume this ferris wheel was an operative entity without a power source. And, further, that design and manner of intended use did not include dismantling, transportation and re-erection at a new location, each phase of endeavor d\\u00e9- pending upon use of machinery as a necessary element of respondents' principal business \\u2014 to provide public amusement by means which required use of machinery and power.\\nDisposition of the question is controlled by decisions in Coliseum Co. v. Ray, et al., 193 Okl. 604, 145 P.2d 763 (1944) and McClung v. Colclasure, 197 Okl. 445, 172 P.2d 623 (1946). In Ray, supra, a private concern operated an ice rink for public amusement. The enterprise involved a large ice machine with necessary appliances, and a workshop connected with repair and maintenance of the ice rink. Claimant, employed as engineer to maintain and repair the machine and assist in equipping the rink for amusement, was injured while climbing a tank. The premises were held to constitute a workshop within definition of the statute, supra.\\nIn McClung, supra, claimant sustained injury in a cleaning and pressing shop, an integral part of the operation involving power driven motors. That decision acknowledged Hurley v. O'Brien, supra, had announced a rule that presence of power driven machinery which was merely incidental to business operations not defined as hazardous, did not make the business hazardous. However, application of converse of the rule makes the employment hazardous, within definition of the statute, supra, where this test is met:\\n\\\"The machinery used in the workshop of petitioner is not a mere incident to the operation of the business. It is the principal operation in the cleaning and processing of rugs, clothing and garments and the major operation on which the entire establishment is based.\\\"\\nMeasured by this test, it is clear the machinery involved was not merely incidental to respondents' business. Rather, this machinery was an integral part of an operation for furnishing public amusement, which was the major operation upon which respondents' business was based. Without these motor powered installations respondents had no business establishment. We are of the opinion operation of an engine powered device such as the ferris wheel involved maintenance and operation of which depended upon motors, made respondents' business a workshop within meaning of the statute, supra, and constituted a hazardous employment although not specifically enumerated in the Act.\\nRespondents also contend the trial court erred in finding that claimant was an employee' of Mickey Price rather than of the joint respondent, Patty Price. Extended argument relative to weight of the evidence is advanced in an effort to disclose claimant's failure to sustain the burden of proof showing employer-employee relationship with Mickey Price. This claim arises from the family relationship involved in operation of the enterprise, briefly summarized hereafter.\\nMickey Price, long time owner of the show, reached retirement age in 1972, and allegedly desired to retire on Social Security and make provision for his unmarried .daughter, respondent Patty Price. A purported agreement was executed, under which all equipment of Citizens State Shows was leased to Patty for the seven months' carnival season (March 15-October 15) at $300.00 per month. Other lease conditions placed obligations of operation in Patty. The same lease was re-executed March 15, 1973, shortly before claimant's injury. Under this arrangement Mickey Price continued with the show at agreed salary of $140.00 per month and, according to Patty's testimony, was General Superintendent of Citizens State Shows.\\nPatty's tax returns and required business reports, i. e., Tax Commission, Motor Vehicle Tax account, and accountant's reports, reflected that Patty was the lessee and operator of the show. Thus respondents insist there was no evidence to show Mickey Price was the operator, or direct proof an employer-employee relationship existed with claimant. Supporting decisional law need not be reviewed. Cited cases involved issues as to whether claimants in varied circumstances were employees or in dependent contractors. See Swyden Construction Company v. White, Okl., 383 P.2d 674 (1963), and decisions cited therein. Matter of claimant's employment and injury were admitted. The issue determined by the trial court, and now reviewed, simply involves correctness of the finding which charged both respondents with liability as employers.\\nArgument concerning evidence showing Patty Price was sole operator of the enterprise, is unpersuasive, when consideration is given other evidence relating to the employer-employee relationship. Claimant was hired by, received wages from, and worked entirely under direction of Mickey Price. Although nominally a lessor who served as Patty's general superintendent, this respondent executed booking contracts in his individual capacity, was not listed as an employee for income or Social Security purposes, and did not return the monthly salary ($140.00) as wages or income during 1972. This purported salary paid by Patty admittedly was considerably less than would have been paid to a replacement performing the same duties.\\nIt is unnecessary to categorize, or give name to the private family arrangement under which the business operated. There was sufficient evidence to support the finding, inherent in the trial court's order, that Mickey Price was not an employee of his respondent-daughter.\\nHowever, if determined to have been an employee then, as suggested by claimant, acting as superintendent of respondent's (Patty's) operation without disclosing his principal was sufficient to bind him individually. Malernee v. Driebelbis, 173 Okl. 68, 46 P.2d 911 (1935). Under either hypothesis the trial court correctly determined respondents' jount liability to claimant for accidental injury. A decision involving comparable facts and reaching the same conclusion or finding of joint venture may be observed in Baker, d/b/a Baker United Shows v. Billingsley, 126 Ind. App. 703, 132 N.E.2d 273. Award sustained.\\nHaving no workmen's compensation insurance, respondents were required to procure surety bond in order to perfect proceedings for review. Such a bond was filed with Mid-Continent Casualty Company, a corporation, as surety thereon. Claimant has moved for judgment upon that bond, and judgment hereby is granted thereon. The cause is remanded to State Industrial Court for determination of compensation, interest, and costs due and owing by the principals and the named surety.\\nAll of the Justices concur.\"}"

okla/10481315.json

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+"{\"id\": \"10481315\", \"name\": \"In the Matter of Carol, Raymond, Ray, Frankie and Mary Ann SWEET, Juveniles. Harry SWEET and Margaret Sweet, Plaintiffs in Error, v. Mrs. H. A. JOHNSON, County Juvenile Officer, Defendant in Error\", \"name_abbreviation\": \"Sweet v. Johnson\", \"decision_date\": \"1957-10-22\", \"docket_number\": \"No. 37602\", \"first_page\": \"231\", \"last_page\": \"236\", \"citations\": \"317 P.2d 231\", \"volume\": \"317\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T18:13:59.972852+00:00\", \"provenance\": \"CAP\", \"judges\": \"WELCH, C. J., and CORN, V. C. J., and HALLEY, JOHNSON, WILLIAMS, JACKSON and CARLILE, JJ., concur.\", \"parties\": \"In the Matter of Carol, Raymond, Ray, Frankie and Mary Ann SWEET, Juveniles. Harry SWEET and Margaret Sweet, Plaintiffs in Error, v. Mrs. H. A. JOHNSON, County Juvenile Officer, Defendant in Error.\", \"head_matter\": \"In the Matter of Carol, Raymond, Ray, Frankie and Mary Ann SWEET, Juveniles. Harry SWEET and Margaret Sweet, Plaintiffs in Error, v. Mrs. H. A. JOHNSON, County Juvenile Officer, Defendant in Error.\\nNo. 37602.\\nSupreme Court of Oklahoma.\\nOct. 22, 1957.\\nPaul R. Haunstein, Enid, for plaintiffs in error.\\nDennis L. Pope, County Atty., Enid, for defendant in error.\", \"word_count\": \"2868\", \"char_count\": \"17190\", \"text\": \"BLACKBIRD, Justice.\\nThis appeal involves the custody of Carol, Raymond, Ray, Frankie and Mary Ann Sweet, minor children of the plaintiffs in error. Harry and Margaret Sweet, of Enid, Oklahoma. Ray and Raymond are twins, 11 years of age, Frankie will be 8 next December, and the girls, Carol and Mary Ann are approximately 10 and 7 years of age respectively.\\nDuring the 1954-1955 school term, all of the children, except the youngest, attended public school at North Enid. Due to the children's condition, as regards personal hygiene and perhaps partially due to dissatisfaction with them on one or two other grounds, the school principal reported them to the school board, and subsequently, after an investigation by Mrs. Johnson, the County Juvenile Officer, followed by proceedings in the Juvenile Court, the older children, by court order entered in said proceedings on June 1, 1955, were temporarily taken from their parents and placed in the custody of the Child Welfare Division of the State Department Of Public Welfare for a period of 90 days, within which the Sweets cleaned and improved their home. After this was done, the Juvenile Court, at the end of said 90-day period, entered another order restoring the children's custody to their parents. Besides a rather general cleaning and renovating of the house, conducted under the supervision of Mrs. Johnson, Mr. Sweet, who is regularly employed as a railroad section laborer, at $1.64 an hour, or $250 to $260 per month, obtained a 90-day leave of absence and expended $1,200 adding an extra room to the house so that his sons and daughters would have separate bedrooms. Thereafter, Mr. Sweet moved his family to Helena, Oklahoma, so that those of school age might attend school there during the 1955-1956 school year; and, during this period, he commuted on weekends between his work at Enid and his family at Helena. At the end of said school term, in the spring of 1956, the family returned to their home in Enid. Thereafter, on or about August 15, 1956, the boys, Ray and Frankie, were taken into custody by the Enid police, and confessed to stealing part of $35.20 reported missing from Enid's Becker Service Station. When Mrs. Johnson learned of this, she went to the Sweet home, talked to the boys' mother, and thereafter instituted the present action to have all of the above-named children adjudged to be \\\"dependent and neglected, or delinquent\\nIn the petition she signed and filed for that purpose, Mrs. Johnson alleged, as grounds for such adjudication, that the minors involved: \\\" appeared to be dependent and neglected, or delinquent children in this, to-wit: not receiving proper parental care, picked up for stealing and mother says she can't keep children at home.\\\" At the trial, before a 6-member jury, no evidence was introduced to show that Mr. Sweet did not earn, or expend, sufficient funds on the children to supply them with all of the necessities of life. In fact Mrs. Johnson, hereinafter referred to as the petitioner, did not claim he was derelict in that respect, or that, from a financial standpoint, the children were public charges. Her entire objection, as far as it can be ascertained from her testimony, seems to have been to \\\"the manner in which they are fed and clothed and took care of.\\\" Over the objection of. counsel for the respondents, said petitioner, was allowed to testify in considerable detail as to the facts disclosed by her investi- - gation, previous to the 1955 proceedings,' concerning the dirty and unsanitary condition of the Sweet home, as well as the children. In addition, school authorities were allowed to testify to certain facts tending to show the children's lack of parental care, all of which occurred prior to the afore-mentioned Juvenile Court proceedings and prior to the 90-day period in which respondents, by the aforesaid orders entered therein, were temporarily deprived and afterwards restored to custody of the children. The evidence introduced on behalf of the respondents tended, in the main, to show that those conditions had not existed since the custody restoration, or at the time of the trial here involved. The testimony of the Sweets' daughter, Carol, showed that Mrs. Sweet experienced no trouble in keeping her at home, and she expressed the earnest wish that she not be taken from her parents.\\nAfter the evidence was all in, respondents moved for a directed verdict, and after this was refused and the cause submitted to the jury, a verdict was returned finding the minors \\\"to be dependent and neglected, or delinquent children.\\\" On the basis of said verdict, the court thereafter entered judgment placing the children in the permanent custody of the Department of Public Welfare for care and maintenance and with full authority to find suitable adoptive homes for them and to effect their adoption. After the court had entered its order overruling respondents' motion for a new trial, and they gave notice of appeal, it entered a supplemental order \\\"Nunc Pro Tunc\\\" directing that, pending the determination of this appeal, the children re main in the Public Welfare Department's custody, but that no proceeding's be instituted for their adoption.\\nThe only argument presented herein is in respondent's behalf in support of their position that the trial court erred in overruling their motion for a directed verdict and in admitting the evidence herein referred to, concerning the condition of the children, and the Sweet home, before they were temporarily taken from respondents in 1955, more than one year before the commencement of the present proceedings. The County Attorney, as counsel for the petitioner, has specifically waived the filing of a brief on her behalf.\\nIn respondents' argument concerning the alleged error, in the overruling of the motion for directed verdict, they do not claim that the undisputed fact that the Sweet boys, Ray and Frankie, took money from the service station, as hereinbefore noted, would not support the jury's verdict as'to their delinquency; but'they say there is not an iota of evidence as to any of the other children being delinquent, dependent, or lacking in parental care. On the basis of this representation of the evidence, they say it was error for the court to submit to the jury the matter of the custody of the other children, and that, instead, the court should have sustained their motion and entered judgment leaving the children's custody in them. They further say that the court or jury had a right to determine that the two boys, Ray and Frankie, were delinquent children, and, that if determined to be responsible for their acts, to try them as juvenile delinquents, and, if adjudged to be such, to order them sent to a Boy's Training School during their minority. They further say, however, that the statutes under which the present proceedings were brought, Tit. 10 O.S.1951 \\u00a7 101 et seq., do not contemplate placing with the Public Welfare Department for adoption, children who are juvenile criminals. In view of such admission of the tendency of the evidence to show the delinquency of two of the children, and respondents' tacit concession that the Juvenile Court, in'the 1955 proceedings, was justified in temporarily depriving them of custody until they could clean and improve their home and begin caring for the children in a manner conforming more nearly to recognized, and currently accepted standards of health and hygiene, and in further c.onsideration of the statement of Mrs. Johnson (while testifying in support of her petition) that the Sweet home \\\" was back as bad as it ever was, and the children's condition was back\\\", we do not understand the question of whether there is any evidence reasonably tending to support the jury's verdict (and a judgment in proper accord therewith) is now before us.\\n' In the part of the evidence (concerning the condition of the respondents' home and children prior to the 1955 proceedings) said to be irrelevant as to conditions existing in 1956 (when the present proceedings were instituted) Mrs. Johnson testified, in. substance, to certain facts disclosed by the investigation she had previously completed, contemplated to show that the Sweet children and home did not have the proper care.\\nMr. Hall, principal of the North Enid school, which the older children attended during- the 1954-1955 school term, as aforesaid, was also allowed to testify, among other things, as to the condition in which said children came to school. It is-unnecessary to detail all the testimony concerning the condition of the Sweet home before it was cleaned and improved in 1955, or of the Sweet children about the same time, and before the court ordered them taken from their parents temporarily. Suffice it to say, the record tends to show that the respondents thereafter improved their ways and home facilities sufficiently that the court apparently felt fully warranted in returning the children to them; and the record is devoid of any specific fact, or set of facts, sufficient to establish that the changes which occurred immediately prior to said custody restoration, have not continued as a part of the family's present mode of life. As said in 67 C.J.S. Parent and Child \\u00a7 12, at page 652 and note 46:\\n\\\"It is not the past history of the case but present consideration's affecting the happiness and welfare of the child which control.\\\"\\nIn this connection consider also Roberts v. Biggs, Old., 272 P.2d 438.\\nDisregarding the inadmissible testimony and all references to it in the record, Mrs. Johnson was the only witness who gave testimony indicating anything undesirable about the way respondents have provided for the physical needs of the children, since that time. She admitted having subsequently been in the Sweet home on only one occasion and that was after Ray and Frankie had been \\\"picked up\\\" by the police, when Mrs. Sweet explained that her worry over the children had affected her housecleaning. Mrs. Johnson also testified about seeing a 'leftover\\\" bowl of cereal on the Sweet's dining table, but the testimony of the witness, Mrs. Nellie Spellman, indicated that, at least for their evening meal, the Sweet family have cooked food instead of cereals and uncooked food. The evidence is undisputed that the children are healthy and that they are getting the benefit of crude bath facilities and a washing machine that Mr. Sweet has provided, despite the absence of any public utility, except electricity, inside the house. All of the witnesses questioned concerning the matter, agreed that the children here involved could not be regarded as \\\"dependent.\\\" There is nothing to indicate that any of them are \\\"delinquent\\\", except the hereinbefore described episode involving Ray and Frankie, only. As respects the determination of whether the children are \\\"neglected\\\", the word \\\"neglect\\\" has been defined as the disregard of duty, owing to indifference or wilfulness. See In re Masters, 165 Ohio St. 503, 137 N.E.2d 752, 755.\\nThe principal fault, if it be one, of respondents in caring for their children at the present time is (according to the testimony) that they are \\\"too easy\\\" with them. The evidence indicates that Mr. Sweet is not a strict disciplinarian and that he tries to correct the children by reasoning with them, rather than punishing them. We think it might be inferred therefrom that he doesn't believe in corporal punishment, but we think the evidence falls short of proving that he has wilfully or indifferently disregarded his duty towards them. On the other hand, we think the testimony concerning the time, money and effort that he has expended to make restitution of the aforementioned service station's missing funds, to bring his house up to the requirements of the Juvenile Court in 1955, and to assure his children's uninterrupted schooling for the year 1955\\u2014 1956 by moving the family to Helena, bespeaks his concern and regard for his duties toward his family, rather than indifference or disregard for them.\\nSome of the salient principles that have descended to us from the common law (In re Hudson, Wash., 126 P.2d 765 ; 39 Am.Jur., \\\"Parent and Child\\\", sec. 18) and been repeatedly recognized and adhered to by this court are as hereinafter shown. Parents have by nature, as well as by law, the legal right to the custody of their minor children (Bishop v. Benear, 132 Okl. 116, 270 P. 569) and, by reason of this, as well as the importance of the influence and protection afforded by parental affection to the best interests of children, especially those of tender years, in respect to their temporal, mental and moral welfare, (where such affection is manifest) it is presumed, in the absence of a strong and clear showing to the contrary, that their best interests are served by letting them remain with their parents. See Neet v. Neet, 198 Okl. 386, 179 P.2d 120; Hollingsworth v. Kohler, Tex.Civ.App., 195 S.W.2d 563; 67 C.J.S. Parent and Child \\u00a7 12 supra, page 650, note 28; 39 Am.Jur., supra, secs. 16, 26. In Roberts v. Biggs, supra, this court quoted the following from Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592, 594, L.R.A.1917E, 318:\\n\\\"Human experience has demonstrated that children ordinarily will be best cared for by those bound to them by the ties of nature, 'bone of their bone and flesh of their flesh.'\\n\\\"Something more than the material things of life is essential to the nurture of a child, and that something is the father's and the mother's love, or as near its equivalent as may be. Recognizing this, the law raises a strong presumption that the child's welfare will be best subserved in the care and control of parents, and in every case a showing of such relationship, in the absence of anything more, makes out a prima facie case for parents claiming the custody of their children. 'Indeed', as said in one case, 'this presumption is essential to the maintenance of society, for without it man would be de-naturalized, the ties of family broken, the instincts of humanity stifled, and one of the strongest incentives to the propagation and continuance of the human race destroyed.\\\" [272 P.2d 440.]\\nIn Morris v. Morris, 81 Okl. 222, 198 P. 70, 72, this court said:\\n\\\"Parental affection is a child's richest heritage, it is nature's shield against harm to the child, and should be strongly weighed against before its happiness and the molding of its life and character be consigned to others.\\\"\\n\\\"To say that the parent has the right to rear his child in decent poverty is but to acknowledge that the right to share the lot of those of whom the child is part is more fundamental than the measure of the lot itself.\\\" Reynolds v. Davidow, 200 Miss. 480, 27 So.2d 691, 692.\\nGiving the \\\"welfare\\\" of children the important place it has in determining who shall have their .custody \\\"was never intended to penalize parents because they may not be financially able to provide their children with the comforts and advantages more fortunate parents might provide for them.\\\" See In re Bourquin, 88 Mont. 118, 290 P. 250, 251. And that requirement is generally \\\"satisfied if the parents are honest and respectable, with a disposition and capacity to maintain and educate the child.\\\" 67 C.J.S. Parent and Child \\u00a7 12 supra, p. 659. To justify the courts in depriving parents of the care and custody of their own children, the parents' special unfitness', must be shown by evidence that is clear and conclusive and sufficient to make it appear that the necessity for doing so is imperative. And, in attempting to prove the \\\"special unfitness\\\" referred to, it is not enough to show that the parents have bad habits or faults of character. It must be established that their condition in life and character and habits are such that provision for the children's ordinary comfort and contentment, or their intellectual or moral development, cannot reasonably be expected at their hands. See House v. House, 207 Okl. 238, 249 P.2d 113; Goertzen v. Goertzen, 194 Okl. 207, 148 P.2d 982; Sherrick v. Butler, 175 Okl. 538, 53 P.2d 1097.\\nAs we think the evidence, as a whole, and without regard to the inadmissible testimony we have referred to, was, in view of the burden of proof in such matters, insufficient to show that any of the children, with the possible exception of Ray and Frankie, were delinquent, dependent or neglected within the meaning of the statute, supra, we can only conclude that the jury was influenced in arriving at its verdict by said inadmissible testimony. Consequently, we have determined that, on account of said error, the trial court should have sustained respondents' motion for a new trial. Accordingly, its judgment is hereby reversed, with directions to grant respondents a new trial.\\nWELCH, C. J., and CORN, V. C. J., and HALLEY, JOHNSON, WILLIAMS, JACKSON and CARLILE, JJ., concur.\"}"

okla/10490739.json

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+"{\"id\": \"10490739\", \"name\": \"E. L. MENDENHALL COMPANY and Utilities Insurance Company, Petitioners, v. B. L. KELL and Oklahoma State Industrial Court, Respondents\", \"name_abbreviation\": \"E. L. Mendenhall Co. v. Kell\", \"decision_date\": \"1961-01-31\", \"docket_number\": \"No. 39108\", \"first_page\": \"234\", \"last_page\": \"237\", \"citations\": \"359 P.2d 234\", \"volume\": \"359\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T00:17:16.830198+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"E. L. MENDENHALL COMPANY and Utilities Insurance Company, Petitioners, v. B. L. KELL and Oklahoma State Industrial Court, Respondents.\", \"head_matter\": \"E. L. MENDENHALL COMPANY and Utilities Insurance Company, Petitioners, v. B. L. KELL and Oklahoma State Industrial Court, Respondents.\\nNo. 39108.\\nSupreme Court of Oklahoma.\\nJan. 31, 1961.\\nRucker, Tabor, Best, Sharp & Shepherd, O. H. \\u201cPat\\u201d O\\u2019Neal, Tulsa, for petitioners.\\nBaker & Baker, Tulsa, Mac Q. Williamson, Atty, Gen., for respondents.\", \"word_count\": \"1133\", \"char_count\": \"7033\", \"text\": \"BERRY, Justice.\\nChallenged, as erroneous and unauthorized by law, is the award of the State Industrial Court granting claimant 80 per centum permanent (partial) disability to his right arm. Employer asserts that claimant's unreasonable conduct in declining to complete recommended medical treatment prolonged his healing period and prevented optimum recovery from the injury sustained.\\nThe accident, which occurred on August 3, 1959, concededly resulted in an injury to claimant's right shoulder. Dr. P attended him with the consent of employer. Hospitalized for a period of 12 days, he underwent extensive physical therapy and was discharged on September 15. The condition described as \\\"advanced atrophy of the shoulder girdle muscles with adhesive cap- sulitis\\\", failed to respond to treatment. Little or no progress was attained. Claimant was released for \\\"light work\\\" on October 12, when the temporary benefits were discontinued. Following his discharge from the hospital, he was seen by Dr. P on three office visits, the last of which took place on October 26. It was then that the physician recommended further treatment which was to consist of \\\"closed manipulation\\\" of the shoulder under anesthesia. The suggested procedure required further hospitalization and its purpose was to break down muscular adhesions in the \\\"shoulder cuff\\\". Claimant admittedly declined to undergo this treatment.\\nDr. P, as reflected by her report, was of the opinion that claimant's present disability to the arm, which she estimated at 80-85 per centum, was merely temporary in nature. Recommended manipulation, she related, \\\"would render a decrease in partial permanent disability from 10 to 15 per cent\\\".\\nDr. A, who submitted a report for the claimant, evaluated the resulting disability in terms of unqualified permanency and fixed its degree at 85-90 per centum (permanent partial disability to the right arm). He described the condition as one \\\"commonly called a frozen shoulder which may or may not be amenable to manipulation\\\". The record further discloses that muscular adhesions are not always successfully remedied by manipulation as they frequently recur at or near the point of their original formation. It was stipulated that Dr. A, if present, would testify \\\"he was inclined to think\\\" closed manipulation would help claimant, but \\\"nobody could say that it would, and that it might make it worse.\\\"\\nEmployer's statutory duty to pay compensation to an injured workman imposes upon the latter an implied obligation to act reasonably and use ordinary care in minimizing the consequences of his injury. While an employee is required to undergo minor corrective treatment or surgery, which is simple, safe and reasonably certain to effect a cure, either in whole or some substantial part, it is equally true that this rule may not be invoked to compel his submission to an ill-advised, dangerous, unnecessary, experimental or questionable medical or operative procedure, however minor, in order that benefits created by law in his favor may possibly be reduced or minimized. Moran v. Oklahoma Engineering & Machine & Boiler Co. et al, 89 Okl. 185, 214 P. 913; Chicago Bridge & Iron Works v. Sabin, 105 Okl. 62, 231 P. 851; Consolidated Lead & Zinc Co. v. State Industrial Commission, 147 Okl. 83, 295 P. 210, 73 A.L.R. 1298; City of Tulsa Water Department et al. v. Barnes et al., 170 Okl. 601, 41 P.2d 809. See also Macklanburg-Duncan v. Wimmer, Okl., 280 P.2d 1001.\\nAn employer who complains of a workman's unreasonable refusal to undergo tendered treatment and who desires to compel his submission thereto, bears the burden of proving that the condition sought to be improved necessitates only a minor medical or surgical procedure which is simple, safe and reasonably certain to effect, either in whole or in some substantial part, a reduction in disability. Moran v. Oklahoma Engineering & Machine & Boiler Co. et al., supra, American Iron & Machine Works et al. v. Weatherman et al., 187 Okl. 260, 102 P.2d 604. Whether or not employee's action in refusing tendered medical or surgical measures was unreasonable presents a question of fact to be determined by the trial tribunal. A finding made on such issue by the State Industrial Court, when based on competent evidence adduced, is binding and conclusive upon this Court. 85 O.S.1951 \\u00a7 26; American Iron & Machine Works v. Weatherman, supra; United Rendering Co. v. Lewis, 154 Okl. 153, 7 P.2d 149; Carl B. King Drilling Co. et al. v. Massenburg et al., 154 Okl. 236, 7 P.2d 454; Whitehurst v. Auterson, 163 Okl. 75, 20 P.2d 1035; City of Tulsa Water Department et al. v. Barnes et al., supra; Amerada Petroleum Corp. et al. v. Sumner et al., 177 Okl. 503, 61 P.2d 205; Kansas Explorations, Inc. v. Montee, 195 Okl. 301, 157 P.2d 171. See also Henly v. Oklahoma Union Railway Co., 81 Okl. 224, 197 P. 488, 18 A.L.R. 427; Macklanburg-Duncan Company v. Wimmer, supra.\\nThe evidence in the instant cause is far from being clear or conclusive in showing that the manipulation therapy sought to be applied would have improved the shoulder condition so as to effect a substantial reduction in disability to the arm. As disclosed by the tenor of Dr. A's testimony, the recommended procedure is of doubtful, questionable and problematical effectiveness, and claimant's condition should thus be deemed to have reached optimum recovery. The trial tribunal resolved the issue adversely to the employer and its finding thereon is supported by competent evidence. Under this state of the record, we are not at liberty to interfere with the factual determination made. Nor may we indulge in speculation as to the outcome of the manipulation treatment and hold, as a matter of law, that the remedial measures proposed by Dr. P. constitute a \\\"simple, safe and reasonably certain cure\\\", that the refusal thereof amounts to an unreasonable conduct on the part of the claimant. Amerada Petroleum Corporation v. Sumner, supra; Consolidated Lead & Zinc Co. v. State Industrial Commission et al., supra.\\nThe report of Dr. A, upon which the trial tribunal rested its findings, evaluates claimant's disability in terms of unequivocal permanency, while the statement of Dr. P is a mere expression of anticipated futurity. The trial judge correctly observed that the latter lacked probative value as a basis for the award. See Bergstrom Painting Co. v. Pruett, 20S Okl. 291, 237 P.2d 453; Sparks v. General Mills, Inc., Okl., 262 P.2d 155; Ideal Cement Co. v. Buckler et al., Okl., 353 P.2d 828.\\nThe award for 80 per cent permanent (partial) disability to the arm is not otherwise challenged. We find it amply supported by competent medical evidence.\\nAward sustained.\"}"

okla/10491407.json

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+"{\"id\": \"10491407\", \"name\": \"Wallace W. GATES, County Attorney, Bryan County, Oklahoma; Orville Reynolds, Sheriff of Bryan County, Oklahoma; Oklahoma Dairy Products Institute, Inc., Plaintiffs in Error, v. M. C. EASTER, Defendant in Error\", \"name_abbreviation\": \"Gates v. Easter\", \"decision_date\": \"1960-05-24\", \"docket_number\": \"No. 38576\", \"first_page\": \"438\", \"last_page\": \"442\", \"citations\": \"354 P.2d 438\", \"volume\": \"354\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T21:17:36.964563+00:00\", \"provenance\": \"CAP\", \"judges\": \"DAVISON, C. J., WILLIAMS, V. C. J., and HALLEY, JOHNSON, BLACKBIRD, JACKSON, and BERRY, JJ., concur.\", \"parties\": \"Wallace W. GATES, County Attorney, Bryan County, Oklahoma; Orville Reynolds, Sheriff of Bryan County, Oklahoma; Oklahoma Dairy Products Institute, Inc., Plaintiffs in Error, v. M. C. EASTER, Defendant in Error.\", \"head_matter\": \"Wallace W. GATES, County Attorney, Bryan County, Oklahoma; Orville Reynolds, Sheriff of Bryan County, Oklahoma; Oklahoma Dairy Products Institute, Inc., Plaintiffs in Error, v. M. C. EASTER, Defendant in Error.\\nNo. 38576.\\nSupreme Court of Oklahoma.\\nMay 24, 1960.\\nRehearing Denied Aug. 2, 1960.\\nWallace W. Gates, County Attorney, Bryan County, Durant, Roy L. Sullivan, Neill P. Mclnnis, Oklahoma City, David S. MacDonald, Jr., Durant, for plaintiffs in error.\\nPaul & Montgomery, Louie Gossett, W. L. Steger, Durant, for defendant in error.\", \"word_count\": \"1930\", \"char_count\": \"11767\", \"text\": \"IRWIN, Justice.\\nThe plaintiff secured a temporary restraining order against the defendants, the county attorney and county sheriff of Bryan County, Oklahoma, restraining and enjoining them, as county officials, from interfering with the business of plaintiff and from enforcing or attempting to enforce the provisions of Title 2 O.S.Supp.1955, Sections 419.1. through 419.8. Oklahoma Dairy Products Institute, Inc., was permitted to intervene.\\nOn final consideration, the cause was submitted on an agreed statement of facts, material parts thereof being: Plaintiff has been engaged in the retail business for a number of years and in the course of his business sells and dispenses at retail, milk, ice cream and other dairy products. Prior to the enactment of Sections 419.1 through 419.8, supra, he entered into an oral agreement with a certain wholesaler and manufacturer of ice cream and dairy products for the loan and use by him of a certain ice cream cabinet with attached electric refrigeration of a value in excess of $100; that the same was furnished by the wholesaler without cost and plaintiff agreed he would store in such equipment only ice cream and other dairy products sold by the wholesaler and manufacturer; that the equipment so furnished has been used by him solely for such purposes and that he has not paid any money or other thing of value for the use of such equipment.\\nThe defendants and intervenor appeal from the order of the trial court permanently restraining and enjoining them from enforcing or attempting to enforce the aforementioned statutory provisions and interfering with the business of plaintiff. The parties will be referred to by their trial court designation, except that intervenor will be referred to as defendant.\\nContentions\\nPlaintiff contends the regulation attempted by the act in no wise affects the public health, welfare and safety, but to the contrary, is unreasonable and will tend to centralize the dairy business; that the act is unconstitutional and violates rights guar\\u2022anteed by Art. 2, Sections 2, 7, and 32 of the Constitution of Oklahoma and the 14th amendment to the U. S. Constitution; that the act is in excess of legislative authority and invades private rights and deprives wholesalers and retailers the right to contract on their own terms and attempts to nullify the terms of an existing contract; and that the act is in violation of fundamental constitutional guaranties and in excess of the police powers of the State.\\nDefendants contend that the business of selling and dispensing dairy products is a matter affecting the public health and welfare ; that the statutory regulation is within the police powers of the State and is designed to protect the public health and welfare and is reasonable and constitutional.\\nConclusions\\nTitle 2, O.S.Supp.1955, Sections 419.1 through 419.8, were enacted for the purpose of preventing the practice of subsidizing retail dealers in the dairy products business through secret discounts and the furnishing of equipment by dairy processing, wholesaling and distributing plants. Section 419.1, supra, expresses the Legislative intent wherein it provides that such practice is forcing numerous dairy plants out of business, adversely affects the stable economy of Oklahoma and tends to reduce the price paid to the dairy producer, increase the price paid by the consumer, and is detrimental to the welfare of the State.\\nThat portion under attack is Section 419.3, which declares it unlawful, inter alia, for any person or corporation engaged in business as a wholesaler, processor or distributor of dairy products, to furnish, give, rent, lease or lend, to a retail dealer in dairy products, any equipment or fixtures, having a real or substantial value, including ice cream cabinets and bulk milk dispensers. This section further provides that any gratuitous loan arrangement covering such equipment or fixtures existing at the time of passage of the act shall autor matically terminate, by operation of law, at the end of 14 months thereafter. The act has been effective for more than 14 months.,\\nThe dairy industry in Oklahoma is one of the basic industries and is of paramount importance to the people of the state. Milk and the products manufactured therefrom are used most extensively by all the people of the state and curtailment of the industry or the lessening of the supply of' the products would seriously affect the people of the state and result in serious economic loss. In Jack Lincoln Shops, Inc. v. State Dry Cleaners' Board, 192 Okl. 251, 135 P.2d 332, 335, we said \\\"that any business affected with a public interest is, under the police power of the state, subject to reasonable regulation for the public good: \\\", and \\\"the police power is the power to enact laws 'to promote the order, safety, health, morals and general welfare of society.' \\\" In State ex rel. Whetsel v. Wood, 207 Okl. 193, 248 P.2d 612, 614, 34 A.L.R.2d 1321, we said.:\\n\\\"The term 'police power' comprehends the power to make and enforce all wholesome and reasonable laws and regulations necessary to the maintenance, upbuilding, and advancement of the public weal, and protection of the public interests.\\\"\\nThe dairy industry, being of great public interest, can be and is a subject of\\\" regulation by the Legislature under the police powers of the State. The act in question constitutes an exercise of the police power by the Legislature to promote the general welfare of the people of the State.\\nThe basis of plaintiff's contention is that the act is unconstitutional. In determining this issue we must be cognizant of well-established principles of law that \\\"this court would indulge every possible presumption that an act of the Legislature was constitutional\\\"; and, an \\\"act will be declared constitutional unless it can be clearly demonstrated that the legislature did not have the power or authority exercised or that its authority was exercised arbitrarily and capriciously.\\\" Adwon v. Oklahoma Retail Grocers Ass'n, 204 Okl. 199, 228 P.2d 376, 379; School District No. 25 of Woods County v. Hodge, 199 Okl. 81, 183 P.2d 575. Although private rights must yield to a reasonable exercise of the police power, they are not to be annihilated thereby, or interfered with to any greater extent than is reasonably required by a proper exercise of the power, taking into consideration the legitimate object to be accomplished. Grison Oil Corp. v. Corporation Commission, 186 Okl. 548, 99 P.2d 134. A legislative \\\"police power\\\" enactment is not conclusive of an asserted public interest or that it is detrimental to the general welfare of the State. This is a matter which is always open to judicial inquiry, and a determination of what is a proper exercise of the police power is always subject to supervision of the courts. Oklahoma Natural Gas Co. v. Choctaw Gas Co., 205 Okl. 255, 236 P.2d 970.\\nThis cause was submitted to the trial court upon the pleadings and agreed statement of facts. No evidence was offered nor was any introduced, nor was it stipulated and agreed that the controversy at issue is only an isolated case; that it was not the general practice for wholesalers to furnish equipment such as was furnished in the case at bar; that by reason of it being an isolated case, the price of milk to the producer would not be materially affected or the price of the finished product would not be increased to the general public; that the Legislature did not have the power or authority exercised or that its authority was exercised arbitrarily and capriciously; that the plaintiff would suffer irreparable damage and injury if defendants were not enjoined and restrained from enforcing the statutory provisions; that plaintiff's business would be interfered with to a greater extent than is reasonably required, taking into consideration the legitimate object sought to be accomplished; that subsidization of retail dealers in the dairy business through secret discounts and the furnishing of equipment by wholesalers is not forcing numerous dairy plants out of business, does not adversely affect the stable economy of Oklahoma and tends to reduce the price paid to the dairy producer, increase the price paid by the consumer', and is not detrimental to the welfare of the State.\\nThe Legislature is primarily the judge of the necessity of an enactment and every possible presumption is in favor of its validity. Although the court may hold views inconsistent with the wisdom of the law, it may not annul the law unless palpably in excess of legislative power. Legislators must be presumed to be in touch with their local conditions. They are elected generally upon platforms which have called attention to local conditions, so that when assembled the conditions and needs of particular localities must to some measure at least be deemed to be imparted through the local legislators to the other members of the law-making body, thus the conditions of the state in gross become imparted to the whole group, and from the composite picture may be drawn a fair likeness of the economic, social and political status of the state. The presumption must be that the Legislature has acted upon sufficient information as to needs of the people. Herrin v. Arnold, 183 Okl. 392, 82 P.2d 977, 119 A.L.R. 1471.\\nWe can only conclude, as there is no evidence to the contrary, that the knowl edge of the Legislature was such that the practice of subsidization was forcing numerous dairy plants out of business and was adversely affecting the stable economy of the state of Oklahoma and was reducing the price paid to the dairy producer, increasing the price paid by the consumer and was detrimental to the welfare of the State. Such being the case, we hold that the act is not arbitrary and capricious and is a proper exercise of the police power, taking into consideration the legitimate aims sought to be accomplished.\\nWe do not believe the nullification of the contract entered into between plaintiff and the wholesaler by the legislative enactment contravenes Article 2, Sec. 7, of the Oklahoma Constitution and the 14th amendment to the Constitution of the United States which provides no state shall \\\" deprive any person of life, liberty, or property, without due process of law, In Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, the Court held:\\n\\\"It does not matter that legislation appropriate to a legitimate end has the result of modifying or abrogating contracts already in effect, as contracts are to be regarded as having been made subject to the future exercise of the constitutional power of the state, and the reservation of essential attributes of sovereign power is read into contracts as a postulate of the legal order.\\\"\\nSee also Croxton v. State, 186 Okl. 249, 97 P.2d 11; Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940.\\nThe cause is reversed and remanded to the trial court with instructions to vacate the judgment rendered in favor of the plaintiff granting a permanent injunction, and enter judgment in favor of the defendants.\\nDAVISON, C. J., WILLIAMS, V. C. J., and HALLEY, JOHNSON, BLACKBIRD, JACKSON, and BERRY, JJ., concur.\"}"

okla/10491563.json

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+"{\"id\": \"10491563\", \"name\": \"Bobbie Allen BURLEIGH, Petitioner, v. R. R. RAINES, Warden, Oklahoma State Penitentiary, Respondent\", \"name_abbreviation\": \"Burleigh v. Raines\", \"decision_date\": \"1961-01-25\", \"docket_number\": \"No. A-12999\", \"first_page\": \"340\", \"last_page\": \"342\", \"citations\": \"359 P.2d 340\", \"volume\": \"359\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T00:17:16.830198+00:00\", \"provenance\": \"CAP\", \"judges\": \"NIX, P. J., and BUSSEY, J., concur.\", \"parties\": \"Bobbie Allen BURLEIGH, Petitioner, v. R. R. RAINES, Warden, Oklahoma State Penitentiary, Respondent.\", \"head_matter\": \"Bobbie Allen BURLEIGH, Petitioner, v. R. R. RAINES, Warden, Oklahoma State Penitentiary, Respondent.\\nNo. A-12999.\\nCourt of Criminal Appeals of Oklahoma.\\nJan. 25, 1961.\\nBobbie Allen Burleigh, petitioner, pro se.\\nMac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for respondent.\", \"word_count\": \"659\", \"char_count\": \"3869\", \"text\": \"BRETT, Judge.\\nThis is an original proceeding in habeas corpus brought by Bobbie Allen Burleigh to secure his release from imprisonment in the State Penitentiary, where he alleges he is being unlawfully restrained of his liberty by R. R. Raines, warden of the penitentiary, at McAlester, Oklahoma.\\nPetitioner further alleges that the cause of his unlawful restraint is by virtue of a judgment and sentence illegally made and entered in the district court of Pawnee County, wherein he was charged with burglary in the second degree. Petitioner failed to attach to his petition a copy of the information, or the judgment and sentence, but states that in March, 1958 he entered a plea of guilty to a charge of burglary in the second degree, and sentence thereon was deferred for six months. That in the mean time, petitioner was sentenced to the State Penitentiary from Tulsa County on a charge of burglary, second degree, and on the date scheduled for sentencing in Pawnee County, he was an inmate of the State Penitentiary. He complains that no detainer or hold order was placed with the prison authorities by Pawnee County, and for this reason the district court of Pawnee County lost jurisdiction to pronounce sentence. Petitioner further states that after his release from the penitentiary, and when he was again picked up in Tuls\\u00e1 County on a charge of petit larceny, the Pawnee County authorities took possession of him, and on June 20, 1960 he was sentenced to two years imprisonment on the plea of guilty entered by him in March, 1958. His contention is that Pawnee County had waived jurisdiction of petitioner when it failed to place a hold order with the prison authorities, as hereinbefore stated; and he prays for his release.-\\nThis contention is wholly without merit. The district court of Pawnee County had, for some reason, delayed passing sentence on the defendant for six months, no doubt as a favor to the petitioner, and the fact that he got into further trouble, and was placed in the penitentiary from another county, did not obligate Pawnee County authorities to file a hold order with the prison authorities in order to maintain jurisdiction of petitioner; and Pawnee County did not lose jurisdiction to pass judgment and sentence on the petitioner on June 20, 1960 on his plea of guilty entered in March, 1958 merely by reason of delay and the fact that a hold order was not lodged with the prison authorities for the petitioner.\\nHowever, the Warden, through the Attorney General, has filed a response to the petition for writ of habeas corpus, to which is attached a photostatic copy of the judg ment and sentence, and also petitioner's prison record. The copy of the judgment and sentence shows that the petitioner was arraigned on June 20, 1960, on a charge of burglary in the second degree; that he was represented by counsel at such arraignment, and that on said date he was sentenced to two years in the penitentiary.\\nIt has been held many times by this Court, that the records of the trial court are presumed to be true and correct unless the contrary is established by competent proof. Ex parte Gregory, Okl.Cr., 291 P.2d 832.\\nThe purpose of the writ of habeas corpus being to determine the legality of the restraint of an individual, the writ will not issue where it is shown that the prisoner is being held pursuant to an unsatisfied judgment pronounced against him. Ex parte Grimes, 92 Okl.Cr. 87, 221 P.2d 679; Ex parte Ward, 97 Okl.Cr. 60, 257 P.2d 1099.\\nThe petition for writ of habeas corpus is denied.\\nNIX, P. J., and BUSSEY, J., concur.\"}"

okla/10497758.json

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+"{\"id\": \"10497758\", \"name\": \"SHIRES et ux. v. REYNOLDS et al.\", \"name_abbreviation\": \"Shires v. Reynolds\", \"decision_date\": \"1953-03-31\", \"docket_number\": \"No. 35563\", \"first_page\": \"491\", \"last_page\": \"493\", \"citations\": \"255 P.2d 491\", \"volume\": \"255\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T21:44:46.862617+00:00\", \"provenance\": \"CAP\", \"judges\": \"HALLEY, C. J., CORN, O\\u2019NEAL, WILLIAMS, and BLACKBIRD, JJ., concur.\", \"parties\": \"SHIRES et ux. v. REYNOLDS et al.\", \"head_matter\": \"SHIRES et ux. v. REYNOLDS et al.\\nNo. 35563.\\nSupreme Court of Oklahoma.\\nMarch 31, 1953.\\nT. Austin Gavin, Tulsa, for plaintiffs in error.\\nC. R. Thurlwell, Tulsa, for defendants in error.\", \"word_count\": \"942\", \"char_count\": \"5688\", \"text\": \"ARNOLD, Justice.\\nOren T. Shires and his wife, Laura M. Shires, plaintiffs in error, filed a suit in Tulsa County against defendants in error, W. L. Reynolds, and Fern Reynolds, for breach of warranty alleging failure to pay taxes assessed against property conveyed by Reynolds to plaintiffs, which taxes had been paid by plaintiffs to meet the requirements made by a building and loan company on application for loan. A predecessor in title of Reynolds procured a correction order by the County Commissioners of Tulsa County purporting to cancel the taxes in question.\\nThis is' the second time this case has been appealed, Shires v. Reynolds, 203 Okl. 573, 224 P.2d 580, 581. The affidavit now assertedly filed before the issuance of the correction order was not in the former record, nor was the certificate of error or the correction order.\\nIn our former opinion we held:\\n\\\"Orders of an administrative board in the performance of quasi-judicial functions will be declared invalid unless its jurisdiction affirmatively appears.\\\"\\nThe taxes collected accrued and were assessed for the years 1929, 1930, 1931 and 1932. As disclosed by our former opinion a 1937 act of the Legislature, Laws 1936-1937, p. 463, dealing with the same subject matter, to wit: the issuance of correction orders by the County Commissioners, was held unconstitutional before the original trial of this cause, and as further disclosed by our former opinion the 1916 act, St.1931, \\u00a7 12642, which was the only authority available requires that \\\"good cause'.' be shown for not appearing before the Board of Equalization as a prerequisite to the issuance of a correction order. The record before us at that time did not show the jurisdiction of the Board of County Commissioners nor was the evidence on the point sufficient to disclose \\\"good cause\\\". The cause was \\\"reversed\\\". After the mandate was spread of record the trial judge permitted Reynolds to file an amended answer, set the cause for trial, and tried it over the objections of plaintiffs who sought judgment in accordance with our opinion.\\nOn retrial an affidavit purportedly filed by the applicant for the correction order was introduced in evidence. This affidavit is as follows:\\n\\\"State of Oklahoma, County of Tulsa, SS:\\n\\\"Application for Correction of Erroneous Assessment.\\n\\\"To: The Honorable Board of County Commissioners of Tulsa County, State of Oklahoma.\\n\\\"Comes now C. L. Penn, the undersigned, who first being duly sworn says that he is a non-resident of the State of Oklahoma and that the described premises, attached hereto, were erroneously and excessively assessed in excess of their fair taxable value for said years.\\n\\\"That the undersigned did not appear before the Board of Equalization for said years, for the reason that he is a non-resident of the State.\\n\\\"It is therefore, asked that the Board of County Commissioners strike said assessment for said years and re-assess said property as set out in the attached Exhibit by deducting the amounts as therein shown.\\n\\\"C. L, Penn\\n\\\"Subscribed and sworn to before me this 27th day of March, 1937.\\n\\\"O. E. Clift, Notary Public Ellis County, Texas\\n\\\"My commission expires May 31, 1937.\\\"\\nAlso the alleged minutes of the Commissioner's meeting at the time of the presentation of the application for correction order were introduced and are as follows:\\n\\\"Thursday, April 1, 1937.\\n\\\"A special meeting of the Board of County Commissioners was called by the Chairman, John H. Miller, at the hour of 9:00 A.M., and the following members were present: John H. Miller, Chairman; J. B. Gray and Harry L. Hopkins, members.\\n\\u215c \\u215c * \\u215c \\u215c \\u215c\\n\\\"Motion by Commissioner Hopkins, seconded by Commissioner Gray, that the application for correction of erroneous assessment filed by C. L. Penn, covering real estate in Tulsa County, Oklahoma, for the years 1929, 1930, 1931, and 1932, be and the same is hereby granted and the County Clerk is hereby instructed to issue a certificate of error covering same. All members voting in the affirmative, motion was by the Chairman declared carried.\\\"\\nOral testimony was adduced by a witness who was a County Commissioner at the time the correction order was entered and who had testified at the former trial that he had no independent recollection of the presentation of the application herein questioned. On cross-examination he again admitted that he had no independent recollection of the showing of \\\"good cause\\\". J. B. Gray, another County Commissioner at the time of the entry of the order, also testified but said that he had no independent recollection of the matter whatever. One Tune testified that Penn, the owner when the taxes were assessed and who procured the issuance of the correction order, was a resident of the State of Texas but now deceased.\\nThe principle of law determined by this court in the former appeal constitutes the law of this case. The correction order referred to as a judgment by Reynolds does not show jurisdiction of the Commissioners to enter it and the testimony here-inbefore detailed is wholly insufficient to show \\\"good cause\\\". A showing of non-residency alone is not sufficient to show the \\\"good cause\\\" required by the 1916 act and the other testimony has no probative value.\\nThe order of correction was and is invalid and.the trial judge is ordered to vacate the judgment heretofore entered and- enter judgment for the plaintiff -for the amount sued for together with proper interest.\\nReversed.\\nHALLEY, C. J., CORN, O'NEAL, WILLIAMS, and BLACKBIRD, JJ., concur.\"}"

okla/10500335.json

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+"{\"id\": \"10500335\", \"name\": \"OKLAHOMA TAX COMMISSION v. DENVER PRODUCING & REFINING CO.\", \"name_abbreviation\": \"Oklahoma Tax Commission v. Denver Producing & Refining Co.\", \"decision_date\": \"1953-09-22\", \"docket_number\": \"No. 35162\", \"first_page\": \"413\", \"last_page\": \"417\", \"citations\": \"262 P.2d 413\", \"volume\": \"262\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T17:00:53.321467+00:00\", \"provenance\": \"CAP\", \"judges\": \"WELCH, CORN, DAVISON, ARNOLD, O\\u2019NEAL and BLACKBIRD, JJ., concur.\", \"parties\": \"OKLAHOMA TAX COMMISSION v. DENVER PRODUCING & REFINING CO.\", \"head_matter\": \"OKLAHOMA TAX COMMISSION v. DENVER PRODUCING & REFINING CO.\\nNo. 35162.\\nSupreme Court of Oklahoma.\\nSept. 22, 1953.\\nRehearing Denied Oct. 27, 1953.\\nR. F. Barry, W. F. Speakman, E. J. Armstrong, Oklahoma City, for plaintiff in error.\\nT. Dwight Williams, Stanley B. Catlett, Oklahoma City, for defendant in error.\", \"word_count\": \"2460\", \"char_count\": \"13965\", \"text\": \"WILLIAMS, Justice.\\nThe parties are referred to herein as in the trial court.\\nA 1947 Act of the Legislature amending Section 876, Title 68, O.S.1941, reduced the tax rate on the net income of corporations from 6% to 4%. It was enacted February 10, 1947, but was made effective as of January 1, 1947. Plaintiff was in the oil and gas pipeline and refining business in Oklahoma. In April, 1947, plaintiff sold certain capital assets referred to as \\\"West Edmond properties\\\" for which it received about $3,000,000. It filed an income tax return for its fiscal year from August 1, 1946 to July 31, 1947, in which it computed the tax on its income as follows: 4% on income from sale of capital assets; %2ths of all other income at 6%; %2ths of all other income at 4%. The total income tax paid was $87,515.04.\\nThereafter the Tax Commission made an additional assessment for the same period of $20,775.38, which plaintiff paid under protest and then sought to have refunded.\\nThis is an appeal by the Oklahoma Tax Commission from a judgment of the District Court of Oklahoma County, allowing the Denver Producing and Refining Company a refund of state income taxes for such fiscal year, amounting to $15,873.78, permitting the taxpayer to pay upon the basis of 6% for 'that income received in 1946 and 4% for that received in 1947.\\nThe defendant argues that our statutes assess an income tax only on an annual basis, and that an annual return should show the net result of all transactions during the twelve months' period, whether the return is made on a calendar or fiscal year basis, and that one rate of tax should be applied to all income r\\u00e9ceived during such year.\\nSection 14 of the 1947 Act, 68 O.S.1951 \\u00a7 876 note, reducing the tax rate involved, reads as follows:\\n\\\"The provisions of this Act shall apply to all taxable income earned after December 31, 1946.\\\"\\nFor the purpose of discussion only, it may be conceded that defendant's argument in the second preceding paragraph is true as a general statement of the law in some jurisdictions; however, it is not denied that the legislature has authority to provide for a tax based upon a period of less than 12 months, or based upon a tax year of more than one accounting period. The disagreement here is whether the legislature intended, by the 1947 Act involved, to so provide.\\nFor reasons hereinafter set out, we hold that it did.\\nIt is elementary law that, in construing statutes, the intention of the legislature shall govern.\\nWith regard to tax laws, this court said in McGannon v. State ex rel. Trapp, 33 Old. 145, 124 P. 1063, 1067:\\n\\\"In construing tax laws, that, where-there is any ambiguity or doubt, it must be resolved in favor of the person upon whom it is sought to impose the burden.\\\"\\nThe 1947 Act here under consideration amended section 876 of the then existing tax statute to read in part as follows:\\n\\\"A tax is hereby levied upon every person as defined in section 874, which tax shall be collected and paid, for each taxable year\\nIt is evident, that there is \\\"doubt\\\" in the \\u20221-947' Act as applied to the -facts in this case because of the reference to \\\"taxable year\\\" in the section just quoted and the reference to \\\"income earned after December 31, 1946\\\" in section 14, quoted above. With regard to taxpayers making their income tax returns on a fiscal year basis, the question here is whether the legislature intended the expression \\\"taxable year\\\" to include a fiscal year ending in 1947 (after the tax rate had been reduced) or whether the section making the rate change applicable to all \\\"income earned after December 31, 1946\\\" contemplated two tax or accounting periods within the same twelve months' period.\\nThe defendant herein contended for a method of computation substantially as follows: \\u00be2 of the total income for the fiscal year to be taxed at 6%, \\u00be2 to- be taxed at 4%, o-r actually at an \\\"effective rate\\\" for the entire year of 4.833%.\\nIt is evident that the result of such a method of computation is to- \\\"average\\\" the tax rate without regard to whether or not the specific income was earned in 1946 or 1947. Under the rule contended for, in cases where the bulk of the fiscal year's income was earned in 1947, the taxpayer would be paying at the rate of 4.833% for income earned in 1947, despite the fact that by the positive provisions of the statute, the new rate (4%) is applicable to all \\\"income earned after December 31, 1946.\\\"\\nAlso, under such rule, there would be a discrimination against plaintiff and in favor of taxpayers making income tax returns upon a calendar year basis; who would be paying at the rate of 4% for income earned at 'the same time the bulk of plaintiff's income was earned. Such a method of computation would not satisfy the requirements of the following rule of law: - - - .\\n\\\"In construing ambiguous tax statutes the court should adopt that interpretation which lays the burden of the tax uniformly on all those similarly situated.\\\" Magnolia Pipe Line Co. v. Oklahoma Tax Commission, 196 Okl. 633, 167 P.2d 884, 885.\\nIt is pointed out that in 1935, an income tax law was passed which changed the rates,- and that included in such law was a section setting up such a method of computation as is outlined in the third preceding paragraph for fiscal year taxpayers whose fiscal year began in 1934 and ended in 1935. However, such statute by its terms applied only to 1934 and 1935 taxes; and no such section zvas included in the 1947 Act here under consideration. We do not assume that the legislature \\\"forgot\\\" to include such a section in the 1947 Act, but construe such Act with regard to section 14 thereof, which states in plain terms that the new rate (4%) shall apply to \\\"income earned after December 31, 1946.\\\"\\nWe hold that it was the intention of the legislature to give relief in the amount of 2% to corporate taxpayers as of December 31, 1946, and that in order to accomplish the desired result, the legislature contemplated two tax or accounting periods for corporations paying on a fiscal year basis, for their fiscal years ending in 1947.\\nThe judgment of the trial court is affirmed.\\nWELCH, CORN, DAVISON, ARNOLD, O'NEAL and BLACKBIRD, JJ., concur.\\nHALLEY, C. J., and JOHNSON, V. C. J., dissent.\"}"

okla/10502364.json

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+"{\"id\": \"10502364\", \"name\": \"Leonard GOODNIGHT, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error\", \"name_abbreviation\": \"Goodnight v. State\", \"decision_date\": \"1961-12-13\", \"docket_number\": \"No. A-13084\", \"first_page\": \"957\", \"last_page\": \"959\", \"citations\": \"366 P.2d 957\", \"volume\": \"366\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T22:17:11.702046+00:00\", \"provenance\": \"CAP\", \"judges\": \"BRETT and BUSSEY, JJ., concur.\", \"parties\": \"Leonard GOODNIGHT, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.\", \"head_matter\": \"Leonard GOODNIGHT, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.\\nNo. A-13084.\\nCourt of Criminal Appeals of Oklahoma.\\nDec. 13, 1961.\\nPaul R. Haunstein, Enid, for plaintiff in error.\\nMac Q. Williamson, Atty. Gen., Robert L. Gregory, County Atty., Garfield Co., William J. Otjen, Jr., Asst. County Atty., Enid, for defendant in error.\", \"word_count\": \"889\", \"char_count\": \"4880\", \"text\": \"NIX, Presiding Judge.\\nLeonard Goodnight, the plaintiff in error hereinafter referred to as the defendant, was charged by information in the district court of Garfield County with the crime of armed robbery. He was tried before a jury who found the defendant guilty and assessed his punishment at five years in the state penitentiary.\\nDefendant lodged his appeal in this court within the time prescribed by statute. He relies for reversal upon the proposition in substance, that the evidence was insufficient to support the verdict and that the court erred in not sustaining a demurrer to the evidence and erred in not sustaining a motion for a directed verdict. A review of the evidence clearly reflects that defendant's contention is void of merit.\\nThe testimony reveals that on the 17th day of February, 1961 Mrs. Helen Garner was attending a liquor store in Enid, Oklahoma, and about 9 p. m. a man entered the store and made inquiry as to where the good liquor was, and walked toward the back of the place of business. The man turned upon Mrs. Garner with a gun and said:\\n\\\"Lady, if you will do what I tell you, get down on the floor, you won't get hurt; this is a hold-up.\\\"\\nMrs. Garner testified as to the incident as follows:\\n\\\" I said, \\u2014 I was just looking at him, and I said, 'Are you kidding?', and I glanced down and I saw the gun. He said, 'No, get down on the floor or I will kill you'. Well, I got down on the floor. Then he went into the other room, to the cash register, and said 'How do you open this?' Before I had a chance to say something why he opened the cash register, and he said 'where is the rest of the money?', he said 'There should be more money in here than this'. I said 'Well, that is all, the manager took it home when he left'. Then he picked up my purse, and I had a sack underneath there where my grandson had been working in the package store it was on the other side, and I had some money in there, about $20.00 or $25.00, and I had just stuck it under there, under the counter, and he picked that up. And he said T am going to take your purse', and I said, 'Well there is no money in my purse, maybe a couple dollars, you can have it.' So he threw the purse down, and he says, 'Well I will take these two bottles of whiskey', \\u2014 two fifths Jack Daniels, green and black label, and he said, 'You keep your head down for thirty minutes', he said, T am going to take this out to my buddy, this money and whiskey', and he said, 'You keep down, if you don't keep your head down I will kill you.'\\n\\\"So with that, he was gone, and I laid there then, I don't know just how long it was, it wasn't too long, when Jim Brooks came in and found me there.\\\"\\nMrs. Garner positively identified the defendant as the man who entered the store and robbed her. At the time of the alleged offense defendant was a parolee from the Oklahoma State Penitentiary for the charge of armed robbery for which he had received a 75 year sentence. He was paroled after serving about 23 years. Defendant denied the charge and denied any knowledge of the hold up and proclaimed his innocence at trial and at the time judgment and sentence was pronounced.\\nThe corpus delicti was well established by Mrs. Garner and her story substantiated by Mr. Brooks who found the prosecuting witness on the floor of the liquor store shortly after the robbery and also by the police who investigated the crime. She was positive about identification of the defendant, both in a line up and at the trial. Though the defendant denied the offense in positive manner the conflict created a question for the jury and they chose to believe the prosecuting witness instead of defendant. This court has been consistent in its holdings that though there may be a conflict in the testimony it is the province of the jury to weigh the testimony and ferret out the truth and where there is competent evidence upon which the jury could base their verdict it will not be disturbed on appeal. Queen v. State, 35 Okl.Cr. 412, 250 P. 935.\\nNo briefs were filed in the case. However, oral argument was made by defense counsel before the court wherein he advanced the argument herein discussed.\\nA review of the entire record indicates that he had a fair trial and was afforded all his constitutional rights, was represented by able counsel and received the minimum amount of punishment prescribed by law. We found no grounds of such a nature as to require reversal. The judgment and sentence of the trial court is therefore affirmed.\\nBRETT and BUSSEY, JJ., concur.\"}"

okla/10507354.json

@@ -0,0 +1 @@
+"{\"id\": \"10507354\", \"name\": \"HILL v. STATE\", \"name_abbreviation\": \"Hill v. State\", \"decision_date\": \"1954-02-03\", \"docket_number\": \"No. A-11886\", \"first_page\": \"979\", \"last_page\": \"984\", \"citations\": \"266 P.2d 979\", \"volume\": \"266\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T20:11:46.098292+00:00\", \"provenance\": \"CAP\", \"judges\": \"POWELL, P. J., and BRETT, J., concur.\", \"parties\": \"HILL v. STATE.\", \"head_matter\": \"HILL v. STATE.\\nNo. A-11886.\\nCriminal Court of Appeals of Oklahoma.\\nFeb. 3, 1954.\\nO. B. Martin, Oklahoma City, for plaintiff in error.\\nMac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.\", \"word_count\": \"2178\", \"char_count\": \"12624\", \"text\": \"JONES, Judge.\\nThis is an appeal from a conviction sustained in the District Court of Stephens County, wherein the defendant was sentenced to serve a term of four years in the state penitentiary for the offense of attempting to obtain narcotic drugs by use and means of a forged prescription.\\nIt is contended that the information was duplicitous and that the court therefore erred in overruling the demurrer to the information and further erred in failing to require the state to elect on which charge it would try the defendant, whether on the crime of forgery or of attempting to utter and pass a forged prescription.\\nThis prosecution was instituted under the provisions of the Uniform Narcotic Drugs Act, which among other provisions made it a felony to attempt to obtain a narcotic drug by the forgery or alteration of a prescription. Title 63 O.S.1951 \\u00a7 417. The information charged that the defendant \\\"on or about.March IS, 1952, did commit the crime of attempting to obtain narcotic drugs by forgery, a second and subsequent offense in the manner and form as follows, to-wit:\\nThereafter,, the information sets out in detail the means by which the alleged crime was committed, and included in the information is a copy of the narcotic prescription which it is alleged the defendant forged and uttered. If this had been a charge of forgery under the provisions of the chapter on forgery, Title 21 O.S.1951 \\u00a7 1561 to 1626, inclusive, there would have been considerable merit to this assignment of error. However, this is not a charge of forgery. The charge is attempting to obtain narcotic prescriptions under a section of the statute in the Uniform Narcotic Drugs Act, penalizing the attempting to obtain narcotic drugs by certain means, one of which is through forgery of a prescription. We think the construction of this information is controlled by what was said in the case of Bowman v. State, 82 Okl.Cr. 199, 167 P.2d 663, 666, wherein this court stated:\\n\\\"Counsel contend that this information is bad for duplicity, in that it charges two separate and distinct offenses in one count.\\n\\\"The information does not charge two offenses. It only charges the commission of one offense, to-wit, man slaughter in the first degree, but it does allege different acts which were committed by the defendant which would constitute the offense of manslaughter in the first degree.\\n\\\"In Moore v. State, 58 Okl.Cr. 122, 50 P.2d 746, 747, it is stated: 'Where a statute defines an offense and enumerates and describes the different acts or things which constitute the offense, all the said acts may be charged in \\u00e1 single count conjunctively, since though each by itself may constitute the offense, all together do no more, and constitute but one and the same offense.'\\n\\\"In Huckleberry v. State, 64 Okl.Cr. 396, 81 P.2d 493, 494, it is held: 'Under a statute which defines a single crime, but which may be committed in a number of different ways, an information may be drawn setting out the different ways in a single count, and will not be duplicitous, if there is readily perceived connection between the things charged.'\\n\\\"The test seems to be whether information charges more than one crime or whether it defines a single crime which may be committed in a number of ways. If it charges more than one crime in one count, the information would be bad for duplicity, but it is permissible to charge a single crime and' set forth different acts which may constitute the manner and way in which the accused allegedly committed the offense.\\\"\\nIt is our conclusion that the information charges the one crime of attempting to obtain narcotic drugs in an unlawful manner, and the various acts set forth in the information constitute the manner and way in which the accused allegedly committed said crime.\\nIt is next asserted in the brief of the accused that the evidence was insufficient to sustain the conviction for the reason that there was no proof that defendant uttered the forged instrument as alleged in the information.\\nTo \\\"utter\\\" as that word is used in forgery cases is to offer, directly or indirectly, by words or actions, such document as good and valid. Ballentine's Law Dictionary, 2d Ed.\\nIn Black's Law Dictionary, 3d Ed., it is stated:\\n\\\"To utter, as used in a statute against forgery and counterfeiting, means to offer, whether accepted or not, a forged instrument, with the representation, by words .or actions, that the same is genuine.\\\"\\nThe proof of the State showed that on the night in question, the defendant entered a drugstore in the city of Duncan and handed the forged prescription to a clerk, who in turn handed it to the owner of the drugstore to be filled. The owner of the drugstore testified that he immediately saw that the purported signature of Dr. W. R. Cheatwood on the prescription was a forgery and he notified the officers, who-arrested the accused after he had left the drugstore without the prescription being filled. After the prescription had been presented, the defendant said to the druggist, \\\"This will do me more good than the goof balls I have been taking.\\\"\\nWhen the druggist refused to fill the prescription and went to the telephone to call the police, the accused left the drugstore.\\nThe defendant did not testify and offered no evidence in his behalf. In the case of Jones v. State, 69 Okl.Cr. 244, 101 P.24 860, 863, this court held:\\n\\\"To utter a forged instrument is to put it in circulation, or to offer to do so, with fraudulent intent to injure another.\\\"\\nWe think the circumstantial evidence was entirely sufficient to sustain the-conviction. The proof showed defendant in possession of the forged prescription. He presented it to the druggist to be filled. A strong circumstance indicating his knowledge of the false character of the prescription was the fact that when the druggist refused to fill the prescription and' walked to the telephone for the purpose of calling the officers, the accused fled from the store. The handing of the forged prescription to the druggist to be filled was an-uttering as that term is hereinabove defined..\\nIt is next contended that the court erred in giving instruction No. 4 for the reason that said instruction told the jury the maximum punishment they could inflict, but did not instruct them as to the minimum punishment that could be assessed the accused in case of a conviction, citing in support of his contention Colbert v. State, 4 Okl.Cr. 487, 113 P. 561, and Mead v. State, 65 Okl.Cr. 86, 83 P.2d 404.\\nThe instruction followed the language of the statute, which provides:\\n\\\"Whoever violates any provision of this Act shall upon conviction be fined not more than One Thousand Dollars ($1000.00) or be imprisoned not more than five (5) years, or by both such fine and imprisonment. For a second offense, or if in case of a first conviction of violation of any provision of this Act, the offender shall previously have been convicted of any violation of the laws of the United States or of any other state, territory or the District of Columbia, relating to narcotic drugs or marihuana, the offender shall be fined not more than Three Thousand Dollars ($3000.00) or be imprisoned not less than five (5) or more than ten (10) years. \\\" Title 63 O.S.1951 \\u00a7 420.\\nAlthough the proof showed that the accused had been convicted of a violation of the narcotic laws, in the United States District Court, the jury did not find him guilty of committing a second offense. For a conviction of a first violation of the act, the convicted person may be fined not more than $1,000 or may be imprisoned not more than five years, or may be assessed both fine and imprisonment within such limitations. No minimum is provided in the statute. If the jury had wished to do so, the accused could have been assessed as little as a ten cent fine or one hour in prison. The court, under this statute, could not instruct as to any minimum because there is no minimum punishment fixed by the statute. For that reason, this case is distinguishable from the two cases cited by defendant in his brief, because in those cases there \\u2022 was a minimum punishment for the crime charged to have been committed by fhe accused and the trial court, through inadvertence in each of those cases, failed to submit the minimum or alternative punishment.\\nWe shall consider the last two propositions of the defendant together. It is contended that the judgment and sentence does not conform to the verdict of the jury and that the punishment assessed by the court was excessive. The jury by its verdict found the defendant \\\"guilty as charged in the information of the crime of attempting to obtain narcotic drugs, and being unable to agree upon the punishment, leave the same to be assessed by the court.\\\"\\nIn pronouncing judgment and sentence, the court recited that defendant had been tried by a jury which found him guilty of the offense of attempting to obtain narcotic drugs by forgery and defendant was sentenced to serve four years imprisonment in the penitentiary. In this connection the record discloses that no objection was interposed to the verdict at the time it was received, and this assignment of error was not included in the motion for a new trial, nor is it set forth in the petition in error attached to the case-made on appeal. Under such circumstances, the accused may not now complain of the insufficiency of the verdict unless it is so wholly insufficient as to fail to confer jurisdiction upon the trial court to assess the punishment which was inflicted.\\nIn Smith v. State, 83 Okl.Cr. 392, 177 P.2d 523, this court held:\\n\\\"Where verdict is irregular in form but is not objected to at time it is returned, and court given opportunity to have jury correct it, every intendment will be indulged to uphold it, and, where from examination of verdict and entire record intent of jury as ex1 pressed in verdict may be clearly ascertained, it will be upheld.\\\"\\nIn Dunbar v. State, 75 Okl.Cr. 275, 131 P.2d 116, it was held that in order to determine the intention and the purpose of the jury as expressed in the verdict, - the entire record would -be examined, and in many other cases it has been-held that a verdict will not be void if its meaning can be determined by reference to the record proper. Bayne v. State, 72 Okl.Cr. 52, 112 P.2d 1113.\\nIt is our conclusion that the verdict is not in proper form, and of course if counsel for the accused had objected to it at the time it was returned, it would have been error for the' court to have accepted the verdict without returning it to the jury for clarification. Nowhere in the record, including the instructions of the court, was there ever any contention that there was such a crime as attempting to obtain narcotic drugs. The information, opening statement of the county attorney, the evidence, and the instructions of the court all clearly informed the jury that the case was one involving \\\"attempting to obtain narcotic, drugs by forgery.\\\" While the verdict is defective, its language, when considered with the record proper, is sufficient as we view it to express the intention and purpose of the jury to find the defendant guilty of attempting to obtain narcotic drugs by forgery, as charged in the information, and where no objection was interposed to the verdict when returned so as to call the attention of the court to its defective form, the defendant waived the defects in the form of the verdict.\\nAs above disclosed, the jury did not fix the punishment, but left the same to be determined by the court. Although the proof of the State showed that the accused had been convicted in Criminal Case No. 16230 in the United States District Court for the Western District of Oklahoma of forging a narcotic prescription and sentenced to 18 months imprisonment, the jury did not, in conformity to the evidence, find him guilty' of attempting to obtain narcotic drugs by forgery, a second offense, under which the court would have been obligated to have given him not less than five years nor more than ten years imprisonment.\\nUnder such circumstances, this court would not be justified in modifying the sentence which was imposed by the trial court, unless it is clear that there was a manifest abuse of discretion, which we are unable to find.\\n.The judgment and sentence of the District Court of Stephens County is accordingly affirmed.\\nPOWELL, P. J., and BRETT, J., concur.\"}"

okla/10575346.json

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+"{\"id\": \"10575346\", \"name\": \"SWYDEN CONSTRUCTION COMPANY and State Insurance Fund, Petitioners, v. Willie J. WHITE and the State Industrial Court of the State of Oklahoma, Respondents\", \"name_abbreviation\": \"Swyden Construction Co. v. White\", \"decision_date\": \"1963-07-09\", \"docket_number\": \"No. 40154\", \"first_page\": \"674\", \"last_page\": \"676\", \"citations\": \"383 P.2d 674\", \"volume\": \"383\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T18:00:27.374877+00:00\", \"provenance\": \"CAP\", \"judges\": \"DAVISON, JOHNSON, WILLIAMS, JACKSON, IRWIN and BERRY, JJ., concur.\", \"parties\": \"SWYDEN CONSTRUCTION COMPANY and State Insurance Fund, Petitioners, v. Willie J. WHITE and the State Industrial Court of the State of Oklahoma, Respondents.\", \"head_matter\": \"SWYDEN CONSTRUCTION COMPANY and State Insurance Fund, Petitioners, v. Willie J. WHITE and the State Industrial Court of the State of Oklahoma, Respondents.\\nNo. 40154.\\nSupreme Court of Oklahoma.\\nJuly 9, 1963.\\nMont R. Powell, Guy A. Secor, Oklahoma City, for petitioners.\\nHatcher & Powell, Oklahoma City,, Charles R. Nesbitt, Atty. Gen., for respondents.\", \"word_count\": \"1035\", \"char_count\": \"6267\", \"text\": \"HALLEY, Vice Chief Justice.\\nThe question presented for our consideration in the cause under review is whether claimant did in fact stand in the relation of an employee to Swyden Construction Company (designated in this opinion as Swy-den), against which an award was entered below.\\nThe existence of an employee-employer relationship between claimant and the person against whom compensation is sought constitutes a primary prerequisite to an award for death or injury under the Workmen's Compensation Act. While the Act itself will receive a liberal construction in favor of those for whose protection it was enacted, the courts are without authority to extend its purview beyond the class actually embraced within the terms of the law. One who invokes the benefit of the Act has the burden to establish by strict proof that at the time of his accidental injury he did in fact occupy the status of an employee in relation to the person against whom a claim is asserted. Mahl v. McMahan, Okl., 325 P.2d 78; Nichols v. State Industrial Commission, 207 Okl. 167, 248 P.2d 616.\\nWhere the relationship of employer and employee forms a disputed issue on review of a decision made by the State Industrial Court, the Supreme Court will weigh the evidence adduced below and undertake an independent examination of both law and facts to establish the existence or absence of such relation. Thompson v. Braselton Federal Insulating & Building Materials Co., 203 Okl. 510, 223 P.2d 527.\\nClaimant, who is the proprietor of a contracting business, was engaged by Swyden to perform, for the sum of $225.00, an undisclosed amount of work in waterproofing concrete at an apartment house in Oklahoma City. As this job was nearing completion on the afternoon of April 3, 1961, some additional work became necessary to remove some paint from the basement wall. When approached by Swyden on the job site, claimant expressed his willingness to undertake this extra work \\\"by the hour\\\" with the use of a sandblasting machine. This special equipment, he advised, was absolutely needed for the job and could be procured from only one rental agency in town. Swyden then agreed to pay for the use of the sandblaster and engaged claimant. The work, commenced by claimant and two of claimant's regular workmen on the following morning, was completed in eight hours. It was while on this job that claimant sustained an accidental injury. He was turning off the sandblasting machine and a defective coupling caused the hose to \\\"blow off\\\", causing injury to his eyes and the right hand. Taken to a hospital, he received some treatment. On his release he returned to the job site later in the afternoon.\\nWithin a week following completion of the work, claimant sent a bill to Swyden in the sum of $389.85. Of this sum, $225.00 was for the waterproofing job and the remainder ($164.85) for the removal of paint. There is some doubt as to the amount of hourly wages claimant paid the two workmen. According to claimant's original version of the transaction, each of the two workmen was paid \\\"scale\\\" wages of $4.00 per hour. He modified this, however, by saying that he added thereto a \\\"bonus\\\" of $2.00 per hour. Swyden remitted to claim ant the full amount of the hill rendered by the. latter. Before receiving Swyden's check in payment of the two jobs, claimant paid the wages o\\u00a3 the two workmen in cash but withheld therefrom undisclosed amounts for income and social security taxes. As testified by claimant, \\\"I paid my men every Friday.\\\"\\nSwyden asserts the facts as outlined clearly disclose that claimant was an independent contractor. Claimant concedes that he did occupy that status while engaged under his original (first) contract with Swyden to waterproof concrete. He urges that the second arrangement for sandblasting work was \\\"by the hour\\\" and since Swyden procured the special equipment therefor, claimant should be regarded as Swyden's employee while in the performance of that work.\\nThe line of demarcation between an independent contractor and an employee is not clearly drawn and the question must be determined from the particular facts in each case. Getman-MacDonell-Summers Drug Co. v. Acosta, 162 Okl. 77, 19 P.2d 149. The primary test applied is whether the person who engaged another to perform work or services reserves the power and retains the right to control the details of the work. Harrill v. State Industrial Commission, 208 Okl. 666, 258 P.2d 624.\\nAn independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. Mahl v. McMahan, supra. The manner of payment is not conclusive in determining whether one is an employee or an independent contractor. Thompson v. Braselton Federal Insulating & Building Materials Co., supra.\\nAs we view the evidence, claimant was entirely free from Swyden's control in the performance of the sandblasting work. He was engaged to do a piece of work according to his own plan and without any direction or supervision of Swyden. The arrangement left him entirely unrestricted to select his own crew, determine their wages and working hours. There is nothing in the record to support the assertion of any significant difference in the legal status of the parties under the two job agreements. While Swyden did pay the rental fee for the sandblaster, all other tools used on the job belonged to claimant. We therefore hold that there was no change in the relationship of the parties when claimant undertook the sandblasting job.\\nThere was error in the trial tribunal's determination that claimant was an employee of Swyden at the time of his accidental injury. The award is accordingly vacated with directions to deny the claim.\\nDAVISON, JOHNSON, WILLIAMS, JACKSON, IRWIN and BERRY, JJ., concur.\\nBLACKBIRD, C. J., dissents.\"}"

okla/10576385.json

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+"{\"id\": \"10576385\", \"name\": \"Tom H. LAMBERT, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error\", \"name_abbreviation\": \"Lambert v. State\", \"decision_date\": \"1962-09-12\", \"docket_number\": \"No. A-13204\", \"first_page\": \"783\", \"last_page\": \"786\", \"citations\": \"374 P.2d 783\", \"volume\": \"374\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T19:45:31.327101+00:00\", \"provenance\": \"CAP\", \"judges\": \"NIX, P. J., and BRETT, J., concur.\", \"parties\": \"Tom H. LAMBERT, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.\", \"head_matter\": \"Tom H. LAMBERT, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.\\nNo. A-13204.\\nCourt of Criminal Appeals of Oklahoma.\\nSept. 12, 1962.\\nHarvey C. Carpenter, Tulsa, for plaintiff in error.\\nMac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.\", \"word_count\": \"1076\", \"char_count\": \"6419\", \"text\": \"BUSSEY, Judge.\\nThe plaintiff in error, Tom H. Lambert, defendant below, presents three assignments of error on appeal seeking reversal of the judgment and sentence rendered against him in the Court of Common Pleas, Tulsa County, where he was tried and convicted of the offense of possession of intoxicating liquor with unlawful intent to sell in violation of Title 37 O.S. \\u00a7 568.\\nThese assignments are: (1) That the statute under which defendant was tried is void. (2) That the evidence was insufficient to sustain the conviction. (3) That the affidavit upon which the search warrant was issued was based upon information, belief and hearsay.\\nIn support of defendant's first assignment of error, that the statute under which he stands convicted is void, the defendant relies upon Proctor v. State, 15 Okl.Cr. 338, 176 P. 771, wherein this court said in Syllabus III:\\n\\\"An unexecuted intent to violate the law amounts to no more than a thought, and is not punishable as a crime.\\\"\\nIt is thus urged by the defendant that guilty intent may not be punished and that since mere possession of intoxicating liquor is not unlawful, the possession of intoxicating liquor with the intent to sell is not a crime. While it is unquestionably true that a party may not be punished for a criminal intent alone, defendant has apparently overlooked the numerous decisions of this court prior to the repeal of prohibition wherein the court affirmed convictions for \\\"unlawful possession of intoxicating liquor with intent to sell.\\\"\\nIt should be observed that prior to the repeal of prohibition mere possession of intoxicating liquor for one's own personal use, irrespective of the quantity which was possessed, was not unlawful. See Houston v. State, 95 Okl.Cr. 85, 240 P.2d 113. But, when coupled with an unlawful intent to sell, the same constitutes a violation of the penal code of the State of Oklahoma.\\nArt. 27, \\u00a7 3 provides:\\n\\\"The Legislature shall enact laws providing for the strict regulation, control, licensing, and taxation of the manufacture, sale, distribution, possession, and transportation of alcoholic beverage, consistent with the provisions of this Amendment. \\\" (Italics ours)\\nThis constitutional provision vests in the legislature authority to regulate the possession of intoxicating liquors and to determine under what conditions the possession of intoxicating liquor is lawful. The legislature is also under its general police power with the authority to define those acts or omissions which constitute a criminal offense and to prescribe punishment therefor.\\nIt was under the authority vested in it by the constitution, that the legislature enacted the provisions of Title 37 O.S. \\u00a7 568, providing :\\n\\\"It shall be unlawful for any person, firm, or corporation to have in their possession any alcoholic beverages with the intent to sell the same without having first procured a license therefor from the Oklahoma Alcoholic Beverage Control Board as now provided for by law\\nIt can readily be seen that 37 O.S. \\u00a7 568 contains all of the essential elements which existed prior to the repeal of prohibition and the additional element that the possessor had not \\\"first procured a license therefor from the Oklahoma Alcoholic Beverage Control Board\\\".\\nWe are of the opinion based upon the authorities above cited and consistent with prior decisions of this court, that the unlawful intent .to sell coupled with the act of possession of a quantity of intoxicating liquor for which the possessor had not first procured a license therefor is a violation of the penal code, and, Title 37 O.S. \\u00a7 568 is not in violation of the provisions of the Constitution.\\nThe defendant's next contention, that the evidence is insufficient to support the verdict of the jury, is completely without merit. The record discloses that Art Lee, a deputy sheriff of Tulsa County, armed with a search warrant and accompanied by two representatives of the Oklahoma Alcoholic Beverage Control Board, went to the home of Tom H. and Patsy Marie Lambert, 2143 East 36th Street, North, in Tulsa County and upon a search of the premises, found and confiscated eight fifths, three pints and twenty-seven half-pints of whiskey; thereafter, arresting the defendant. Lee testified that during the search, he had observed a federal liquor stamp receipt on a wall in the rear room of the house.\\nThe state introduced two exhibits: a verified certificate from the Oklahoma Alcoholic Control Board, showing that no retail package store license had been issued the defendant, and a certificate from the Director of Internal Revenue showing the accused had been issued a Retail Liquor Dealer Stamp for the period of July 1, 1961 to June 20, 1962.\\nIt can thus be seen that the State proved (1) the intent to sell (possession of the Federal Retail Liquor Dealer Stamp), (2) possession of 48 bottles of whiskey and (3) that the defendant had failed to procure a Retail Package Store License as provided by law; and, when it proved the elements as above set forth existing and concurring at the same time, sufficient evidence was adduced by the State to support the verdict of the jury.\\nDefendant's third contention, that the search warrant above referred to was void in that it was issued on an affidavit based on hearsay and belief was not raised by the defendant in his motion for a new trial, and properly should not' be considered on appeal. See Signs v. State, 35 Okl.Cr. 340, 250 P. 938.\\nSuffice to say that we have examined the affidavit referred to and that while it is by no means a model to be followed in the future, it states facts in positive terms and was sufficient to show probable cause under the rule set forth in Wagner v. State, 72 Okl.Cr. 393, 117 P.2d 162, wherein this court stated:\\n\\\" when facts are stated in the affidavit, and the same is positive, and by one who has a right to know the facts, it is sufficient ground for the magistrate to issue the warrant.\\\"\\nFor the reasons above set forth, we are of the opinion that the judgment and sentence of the trial court should be, and the same is, affirmed.\\nNIX, P. J., and BRETT, J., concur.\"}"

okla/10577273.json

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+"{\"id\": \"10577273\", \"name\": \"Mary Lou FOSTER, Plaintiff in Error, v. Helen BOYD, Defendant in Error\", \"name_abbreviation\": \"Foster v. Boyd\", \"decision_date\": \"1963-05-07\", \"docket_number\": \"No. 40036\", \"first_page\": \"853\", \"last_page\": \"855\", \"citations\": \"381 P.2d 853\", \"volume\": \"381\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T21:46:12.261563+00:00\", \"provenance\": \"CAP\", \"judges\": \"BLACKBIRD, C. J., HALLEY, V. C. J., and WELCH, DAVISON, JOHNSON, WILLIAMS and IRWIN, JJ., concur.\", \"parties\": \"Mary Lou FOSTER, Plaintiff in Error, v. Helen BOYD, Defendant in Error.\", \"head_matter\": \"Mary Lou FOSTER, Plaintiff in Error, v. Helen BOYD, Defendant in Error.\\nNo. 40036.\\nSupreme Court of Oklahoma.\\nMay 7, 1963.\\nWheeler & Wheeler, Max F. Feldner, Tulsa, for plaintiff in error.\\nCovington & Gibbon, Tulsa, for defendant in error.\", \"word_count\": \"1361\", \"char_count\": \"8258\", \"text\": \"BERRY, Justice.\\nThe parties who appear here in the same relative position as in the trial court will be referred to as they appeared in said court.\\nThe sole issue presented by this appeal is whether the trial court erred in giving instructions to the jury on the doctrine of contributory negligence.\\nPlaintiff contends that there was no evidence showing that she was negligent and for said reason the trial court erred in giving instructions relative to possible contributory negligence on her part. This contention is countered by defendant.\\nThe uncontradicted evidence bearing-upon the mentioned issue can be summarized' thusly:\\nOn December 2, 1960, at approximately 6:10 p; m. plaintiff was driving her automobile toward the north over South Lewis Avenue, hereafter referred to as \\\"avenue\\\", in Tulsa, Oklahoma. On the date and at the time mentioned, defendant was driving her automobile toward the south over the outside west traffic lane of the avenue in order to reach her home which was on the east side of the avenue a short distance south of the intersection of the avenue and South 13th Street in Tulsa. Traffic signal lights were maintained at the intersection. It appears that the traffic lights for north- and south-bound traffic over the avenue changed from green to red immediately after defendant drove over the intersection. As a result of said change, one or more of the automobiles traveling north over the outside east traffic lane of the avenue stopped south of the intersection. Upon reaching a point opposite her home, defendant stopped her vehicle for the purpose of waiting until the vehicles to her left had moved on toward the north. This would have enabled her to make a left turn and drive across the east portion of the avenue and onto the driveway to her home. After she had stopped, the driver of the vehicle to her immediate left backed his automobile to the south in order to create a passageway for defendant, who drove her vehicle to the east through the passageway. Upon reaching the inside east traffic lane of the avenue she saw plaintiff's automobile approaching from the south over said lane. Defendant immediately stopped her automobile across the inside lane. Plaintiff's automobile continued onward and the front portion thereof struck the right side of defendant's automobile. At the time plaintiff first observed defendant's automobile, plaintiff was driving at approximately 20 to 25 miles per hour. Plaintiff, as evidenced by skid marks, applied the brakes to her automobile approximately 29 feet from point of impact with defendant's automobile. At point of collision plaintiff's automobile was traveling slowly and the force of its impact with defendant's automobile did not cause latter to move.\\nAt the time the accident occurred it was dark and the headlights of all automobiles in the vicinity of the collision were burning. Prior to stopping her automobile opposite-her home, defendant had caused the signal' lights thereon to indicate a left turn and' the lights continued to so indicate until the-turn had been negotiated. At time of accident the weather was clear and the paving; was dry.\\nDefendant and a passenger in her automobile each testified that plaintiff was. traveling over the outside east traffic lane-of the avenue as she approached the intersection, but before reaching the automobiles, parked in said lane to the south of the intersection she changed to the inside east traffic-lane. Defendant testified further that following collision, plaintiff stated that she: had not been injured.\\nPlaintiff testified that she was driving-over inside east traffic lane of the avenue as she approached the intersection and continued to so drive until her automobile-collided with defendant's automobile; that-force of collision was such that she was. thrown forward and her head struck the windshield of her automobile; that the-impact resulted in bodily injuries.\\nThe parties apparently agree that under-applicable ordinances of the City of Tulsa,, a motorist turning a vehicle is under a duty to yield the right-of-way to a motorist proceeding straight ahead and which may be so-close as to constitute an immediate hazard;, that a motorist desiring to turn his vehicle shall first assure himself that such movement can be made in safety and not endanger other motorists.\\nIn the second paragraph of the syllabus to Sloan v. Anderson, 160 Okl. 180, 18 P.2d 274, it was said that \\\"Contributory negligence is an act or omission on the part of the plaintiff, amounting to want of ordinary care, which, concurring or co-operating with the negligent act of defendant, is the proximate cause of the injury complained of, and necessarily presupposes negligence on the part of the defendant.\\\"\\nFor reasons hereinafter stated, we are of the opinion that there was competent evidence from which the jury could have concluded that plaintiff was guilty of contributory negligence and that such negligence was the proximate cause of the collision.\\nWhile a motorist desiring to make a left turn in order to enter a private driveway should exercise extra precaution before doing so (Caesar v. Phillips Petroleum Co., 187 Okl. 559, 104 P.2d 429) a motorist approaching such motorist should keep a proper lookout and is under a duty to exercise reasonable care and caution to avoid injuring a motorist who had turned across his way. 60 C.J.S. Motor Vehicles \\u00a7 347, p. 808; Goodridge v. Davis, Okl., 345 P.2d 894, 895, and cited cases.\\nIn the case last cited it was stated in the body of the opinion that \\\"In the final .analysis the driver of a motor vehicle must, at all times, use that degree of care which is reasonable and prudent under the circumstances. And this is true despite the so-called right to presume that other drivers will obey the law. In Stegall v. Davis, Okl., 280 P.2d 706, 707, we said: \\\"But regardless of which motorist may have had the statutory right-of-way neither was relieved from a duty of exercising reasonable care and caution not to injure another at the intersection.' See also Guegel v. Bailey, 199 Okl. 441, 186 P.2d 827.\\\"\\nWe are inclined to believe that the evidence is sufficient to show that had plaintiff maintained a proper lookout and exercised reasonable care and caution as she approached point of collision, she would have noticed that defendant had stopped her vehicle; that the signal lights thereto indicated a left turn; that a motorist backed his vehicle in order to create a passageway for defendant's vehicle and that defendant proceeded through the passageway and onto the east traffic lane of the avenue. While plaintiff may not have been close enough to point of collision to note the first mentioned act, her proximity to said point was such that she should have noted the other acts had she kept a proper lookout. Having such evidence before it, the jury could properly have concluded that plaintiff was negligent in not avoiding the collision.\\nIn Cosmo Construction Co. v. Loden, Okl. 352 P.2d 910, 912, this was said:\\n\\\"We have repeatedly held that in view of the constitutional provision making contributory negligence a question of fact for the jury, if there is any evidence from which contributory negligence may be reasonably inferred, the verdict on that issue is conclusive. Const., Art. 23, Section 6; Wright v. Erwin, Okl., 346 P.2d 187; Hanna v. Parrish [& Clark], Okl., 344 P.2d 658; Neely v. Morris, Okl., 333 P.2d 301; Croft v. Dodson, supra [Okl., 310 P.2d 375]; Warren v. Layman, Okl., 267 P.2d 590.\\\"\\nand in the first paragraph of the syllabus to Bocock v. Tulsa Stockyards Co., Okl., 309 P.2d 279, it was said that \\\"If there is any evidence of contributory negligence, or evidence from which contributory negligence may be inferred or presumed, it is the duty of the court under our constitutional provision to submit the issue to the jury.\\\"\\nFor reasons stated the appealed-from judgment is affirmed.\\nBLACKBIRD, C. J., HALLEY, V. C. J., and WELCH, DAVISON, JOHNSON, WILLIAMS and IRWIN, JJ., concur.\"}"

okla/10580661.json

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+"{\"id\": \"10580661\", \"name\": \"HOLDEN TRAILER MANUFACTURING COMPANY and Consolidated Underwriters Insurance Company, Petitioners, v. James Edward ROBERTS and the State Industrial Court of Oklahoma, Respondents\", \"name_abbreviation\": \"Holden Trailer Manufacturing Co. v. Roberts\", \"decision_date\": \"1964-10-13\", \"docket_number\": \"No. 40840\", \"first_page\": \"950\", \"last_page\": \"954\", \"citations\": \"395 P.2d 950\", \"volume\": \"395\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T22:48:13.930562+00:00\", \"provenance\": \"CAP\", \"judges\": \"BLACKBIRD, C. J., HALLEY, V. C. J., and DAVISON, JOHNSON, WILLIAMS, JACKSON and IRWIN, JJ., concur.\", \"parties\": \"HOLDEN TRAILER MANUFACTURING COMPANY and Consolidated Underwriters Insurance Company, Petitioners, v. James Edward ROBERTS and the State Industrial Court of Oklahoma, Respondents.\", \"head_matter\": \"HOLDEN TRAILER MANUFACTURING COMPANY and Consolidated Underwriters Insurance Company, Petitioners, v. James Edward ROBERTS and the State Industrial Court of Oklahoma, Respondents.\\nNo. 40840.\\nSupreme Court of Oklahoma.\\nOct. 13, 1964.\\nSpencer W. Lynn, Oklahoma City, for petitioners.\\nRollie D. Thedford, Charles R. Nesbitt, Atty. Gen., Oklahoma City, for respondents.\", \"word_count\": \"2566\", \"char_count\": \"14730\", \"text\": \"BERRY, Justice.\\nOn June 20, 1963, a first notice of injury and claim for compensation was filed with the State Industrial Court by James Edward Roberts, hereinafter referred to as claimant, naming- Holder\\u00ed Trailer Manufacturing Company and Consolidated Underwriters Insurance Company, petitioners herein, as respondent and insurance carrier. In said notice and claim it is alleged that on March 23, 1963, while lifting a steel trailer axle, claimant sustained an accidental injury to his back. On June 25, 1963, Fred G. Holden, as owner of Holden Trailer Manufacturing Company, filed employer's first notice of injury with the Industrial Court, stating that employee (claimant) was injured in the course of his employment on March 23, 1963, while lifting a frame; that the injury was to claimant's back and that it required hospitalization and surgery. On June 23, 1963, an answer and response was filed on behalf of respondent and its insurance carrier denying that claimant was in the employment of respondent on or about the date alleged, March 23, 1963, and denying that claimant sustained an accidental injury arising out of and in the course of his employment with respondent on or about March 23, 1963.\\nOn the date of trial, at the insistence of respondent and insurance carrier, the parties stipulated that claimant was employed by respondent on or about March 3, 1963, and that would be the date of the alleged injury rather than March 23, 1963. It was further stipulated that respondent's business was hazardous; that claimant's salary was sufficient to entitle him to maximum benefits, if he were entitled to any. Temporary total disability payments had been made to claimant for approximately two months and his hospital and doctor bills had been paid. It was also at this point in the proceedings that petitioners announced their position to be that if claimant had sustained an accidental personal injury it was while working for another and not while working for Holden, and that they were entitled to a remittitur. It was not disputed that claimant had received surgical operation to his back on April 4, 1963. Also undisputed is the evidence that he was off work and temporarily totally disabled for the time alleged.\\nThe trial judge made an order finding, in part, as follows:\\n\\\"That claimant sustained an accidental personal injury, arising out of and in the course of his hazardous employment with the above named respondent, within the terms and meaning of the Workmen's Compensation Law, between 3-3-63 and 3-18-63, consisting of injury to his back.\\\"\\nThe court further found that claimant had been temporarily totally disabled from March 25, 1963, except for five weeks, up to and including the day of trial; that claimant was still temporarily totally disabled and in need of further medical treatment, and ordered petitioners to continue treatment and compensation payments for a period not to exceed 300 weeks or until further order of the court. This order was affirmed on appeal by the Industrial Court sitting en banc.\\nPetitioners bring this original action to review the award made to claimant' and advance two propositions for the reversal of the lower court:\\n\\\"1. The evidence does not support the findings of the State Industrial Court.\\n\\\"2. The findings of the State Industrial Court with reference to employment and accidental injury are so indefinite and uncertain that they should be reversed.\\\"\\nPetitioners in their argument to support the above contentions give particular stress to the order of the Industrial Court in its finding that the date of the accident was \\\"between 3-3-63 and 3-18-63,\\\" and that claimant was unable to prove that the accident as alleged happened on March 3, 1963, as stipulated to at the beginning of the trial.\\nThe record discloses that petitioner Holden Trailer Manufacturing Company builds travel-trailer frames and mobile home frames; that trailer wheel axles are shipped to Holden for installation on the frames; that the axles come to Holden with brakes and springs attached and that one such axle weighs approximately 145 pounds.\\nClaimant testified that he was a welder; that on the day in question he was helping his boss, owner Fred G. Holden, and a fellow worker by the name of Mclntire unload a truck load of the above referred to trailer- axles; that he was standing on the ground and that Holden and Mclntire were letting the axles down to him from atop the truck; that one of the axles slipped and he caught the full weight of the axle; that he \\\"kind of went down a little bit and felt it hurt my back;\\\" that a week or two after the accident boss Holden sent him to Dr. N, a chiropractor; that he continued working while taking treatment from Dr. N; that Holden then sent him to Dr. H who referred him to Dr. W who operated on claimant's back on April 4, 1963; that claimant returned to work May 5, 1963, doing light work; that he continued having trouble with his back and legs and on or about May 26, 1963, he had to cease working for Holden. Claimant further testified that he did not know the exact date of the accident but that he did know that it was on Monday, March 18, 1963, that he first went to Dr. N. He also testified that occasionally on weekends he would do some welding for a local overhead door company.\\nR. M., a fellow employee, testified for claimant. He testified he remembered the day the claimant was hurt; that he did not remember the exact date but it was in the early part of 1963; that \\\"Mr. Holden and I were taking axles off the top of the truck, and passing them down and Bud was taking them, Mr. Roberts was taking them.\\\" He stated that claimant had put an axle on his shoulder, \\\"turned and stepped on a piece of angle iron and it turned with him;\\\" that Mr. Roberts shouldered the axle instead of going on to the ground with it to get help; that witness got off the truck to help claimant because claimant had the full weight of the axle on him; that at the moment claimant didn't say anything but \\\"we were inside, and he said that that hurt his back.\\\"\\nFred G. Holden, testified on behalf of Holden Trailer Manufacturing Company. His testimony was that in March, 1963, claimant was working for him; that while claimant did not at any time tell him that he had sustained an injury while working for him, claimant \\\"came in down in the back one Monday morning\\\"; that he, Holden, then called Dr. N and made an appointment for claimant; that he didn't know the exact date claimant talked to him and that he made the appointment with Dr. N but he was sure it was on a Monday. Witness testified further that claimant continued to work for a short time but that his back bothered \\\"him so bad\\\" he then sent claimant to Dr. H and Dr. H referred claimant to Dr. W who operated; that claimant came back to work on May 6, 1963; that he put claimant to doing light chores up until the time claimant had to quit working.\\nDr. N testified for Holden. His testimony was that on March 18, 1963, Mr. Holden called him and made an appointment with him to see claimant; that claimant, shortly after the call, came in for an examination and that in obtaining the case history the following conversation took place:\\n\\\" And so I asked him if he was hurt on the job, and he said that as far as he knew the first sign of illness had been some 15 days previous to this, which would have been on March the 3rd, and noticed that after doing some overhead work.\\\" (emphasis ours)\\nIt is obvious from a careful perusal of the entire record that the testimony of Dr. N was introduced for the sole purpose of trying to establish a date for claimant's injury when he was not working for Holden and to-lead the lower court to believe that claimant was in fact working for the H Overhead Door Company when he injured his back. Other than when stipulated by the parties that the day of the accident was March 3, 1963, the record is completely void of any testimony that the accident happened on March 3, 1963, until that of Dr. N is reached. From the evidence, Dr. N, and he alone, attempts to fix the date of the accident as March 3, 1963. From his own testimony, as above set forth, since the first day he saw claimant, was on the 18th day of March, 1963, as testified to by both Dr. N and claimant, Dr. N could have set the- date as March 2nd or March 4th because Dr. N testified claimant said \\\"as far as he knew the first sign of illness had been some 15 days previous to this\\\", \\\"this\\\" being March 18, 1963. \\\"Some\\\" could have meant 14 days or 16 days, as well as 15 days.\\nWe have repeatedly said that this Court is not the trier of the facts, and whether or not an accident occurred in an employment covered by the Workmen's Compensation Law and the time and place thereof are questions of fact for the determination of the Industrial Court, and its findings thereon will not be disturbed by this Court on review if the evidence reasonably supports the findings of the Industrial Court on these questions. Wilcox Oil Co. v. Fuqua, 203 Okl. 391, 224 P.2d 255; Shell Oil Co. Inc. v. Thomas et al, 202 Okl. 190, 211 P.2d 263.\\nPetitioners' second contention is that the failure of the trial tribunal to fix the exact date of the injury confirms that the evidence is too indefinite and uncertain to sustain the award. But we hold the particular date when the accidental injury occurred in the instant case is immaterial. A workman who is able to prove the occurrence of an accident at a time more or less certain should not be deprived of the benefits of the compensation law because he is unable to prove the exact date on which the accident took place. The exact date of an injury may be material in some instances when there are questions which involve notice or limitations to actions. In the instant case the primary issue concerns the question \\\"was the claimant injured while in the employ of respondent?\\\"\\nIn the Wilcox Oil Co. case, supra, the injury complained of was to the eye. The evidence was undisputed that the claimant had at some time, at some place and in some manner received a piece of steel in his right eye which punctured the lens and developed a cataract resulting in disability to the eye. There was no direct evidence showing how, when or where he sustained the injury. He testified that on and prior to January 1, 1944, he was employed by Wilcox to work around rotary drilling rigs; that his duties required him to work where there was continuous hammering on steel and where chains were beating together; that he did not know how or when he received the piece of steel in his eye; that he knew of no other place where he could have received the steel in his eye. The trial commissioner, after hearing the evidence, found that claimant, in \\\"January, 1944,\\\" while employed by Wilcox sustained the accidental injury complained of. In that case, even though the finding of the time of the injury was just \\\"January, 1944\\\" we held that the evidence was sufficient to support the finding of the lower tribunal that the claimant had sustained an injury arising out of and in the course of his employment.\\nIn Shell Pipe Line Co. v. Camper, 143 Okl. 94, 287 P. 1009, employer contended it \\\"should not be held liable for the payment of an award for compensation based on an accident occurring May 22, 1928, when the notice of the injury and claim for compensation alleged that the accident occurred 'about the middle of June, 1928.' \\\" In that case claimant testified from memory as to the injury, which happened nearly 12 months prior to the hearing, that the accident complained of happened \\\"in the first part of June,\\\" that he didn't know the exact date but that it happened on the last day he worked for employer. The books of the employer showed that the last day the claimant worked was May 22, 1928. In that case we held there was no fatal variance between the allegations and the proof as to constitute reversible error.\\nIn Michel v. Maryland Casualty Co., La.App., 81 So.2d 36, in a somewhat similar case to the one at bar, where the claimant and two co-employees testified that claimant had sustained an accidental injury while employed by employer and could not fix the exact date, the Court of Appeals of Louisiana said:\\n\\\"Michel admitted on the witness stand that he could not recall the exact date of the accident, whether on September 20th as alleged or on any particular date within the two weeks thereafter. Like the District Court, we do not feel that the inability of this laborer with an admittedly poor memory to recall the exact date or time of an accident is any indication that the accident did not occur.\\\"\\nThe award to claimant by the lower court was affirmed.\\nWe think the evidence in the case before us amply supports the finding of the Industrial-Court. Claimant's testimony as to the' happenings of events was corroborated by- co-employee Mclntire. Owner Holden,filed.a'Form'2, employers first notice of injury,-with the-State Industrial Court stating that claimant had sustained the accidental injury complained of while employed by his pompany. Though, at .the time of trial he stated he' didn't know anything about' thp injury, he did agree with claimant that'it was'on a Monday, that claimant'\\\"came'in down in the back\\\" and that he sent claimant to Dr. N and Dr. H.\\nDr. S testified for claimant by. written report. He stated that claimant should be readmitted to the hospital for intensive physiotherapy and mobilization procedures. Dr. B also testified by way of written report for, claimant stating, in his opinion complete healing of claimant's back still had not occurred and it was possible that further surgical procedures would be necessary and that the claimant was temporarily disabled to do ordinary labor.\\nPetitioners failed to introduce evidence to show that claimant's injury occurred other than as shown by his evidence. At best, petitioners' evidence appears as an effort to impeach claimant's testimony and show that his injury could have occurred while working for the H Overhead Door Company on weekends.\\nWe find that the petitioners have failed to establish that the Industrial Court's findings are without competent evidence, reasonably tending to support them. Accordingly, the order and award of that Court is hereby sustained.\\nBLACKBIRD, C. J., HALLEY, V. C. J., and DAVISON, JOHNSON, WILLIAMS, JACKSON and IRWIN, JJ., concur.\"}"

okla/10586692.json

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+"{\"id\": \"10586692\", \"name\": \"David CAPPS, Petitioner, v. Ray H. PAGE, Warden, and the State of Oklahoma, Respondents\", \"name_abbreviation\": \"Capps v. Page\", \"decision_date\": \"1987-12-13\", \"docket_number\": \"No. A-14319\", \"first_page\": \"185\", \"last_page\": \"188\", \"citations\": \"435 P.2d 185\", \"volume\": \"435\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T17:06:40.860286+00:00\", \"provenance\": \"CAP\", \"judges\": \"NIX, P. J., and BUSSEY, J., concur.\", \"parties\": \"David CAPPS, Petitioner, v. Ray H. PAGE, Warden, and the State of Oklahoma, Respondents.\", \"head_matter\": \"David CAPPS, Petitioner, v. Ray H. PAGE, Warden, and the State of Oklahoma, Respondents.\\nNo. A-14319.\\nCourt of Criminal Appeals of Oklahoma.\\nDec. 13, 1987.\\nDavid Capps, pro se.\\nG. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for respondents..\", \"word_count\": \"1362\", \"char_count\": \"7945\", \"text\": \"BRETT, Judge:\\nDavid Capps files a petition seeking hiS' release from confinement in the state penitentiary, by writ of habeas corpus.\\nPetitioner alleges that on September 30, 19S9 he was serving a five-year sentence which had been imposed by the district court of Pontotoc County, and on that date, as the result of a court order, he was taken from the penitentiary to appear in the Superior Court of Seminole County, to answer charges pending against him there. He states that he entered a plea of guilty to the charges, and the court sentenced him to-serve five years in the penitentiary for that offense. It was clear to the petitioner that the Seminole County sentence was to commence after he completed the five-year sentence he was presently serving.\\nPetitioner states that thereafter, \\\"in an effort to straighten out my messed up life\\\", he caused arrangements to be made whereby he was taken to Hughes County to answer chax-ges pending against him in that county.\\nOn October 14, 1959, with his own lawyer present in the district court of Hughes. County, he entered a plea of guilty to a charge of second degree burglary, in case No. 2934, and was sentenced to serve five years in the penitentiary. On the following day, without his attorney being present, he entered pleas of guilty in two other cases, Nos. 2982 and 2983, both charges for separate offenses of second degree burglary. He was sentenced to serve five years in the penitentiary on each charge, and the court provided that the two sentences were to run concurrently.\\nPetitioner, as grounds for his release, alleges that \\\"due to the fact that petitioner had so many out-standing charges against him\\\", his lawyer worked out a \\\"deal\\\" with the county attorney that the sentences rendered by the district court of Hughes County were to be made to run concurrently with his sentences imposed by the Pontotoc and Seminole County district courts. Petitioner calls attention to the fact that the judgment and sentence of October 14, 1959 provided that the term of sentence was to begin at and from the 14th day of October, 1959; and that the judgment and sentence in cases Nos. 2982 and 2983 each provided that said term of sentence was to begin at and from October 15, 1959, contending that the judge thereby provided that said judgments and sentences run concurrently with the judgment and sentence petitioner was presently serving.\\nUpon reading and considering the petitioner of this prisoner, who files his action without the services of counsel, this Court ordered the district court of Hughes County to conduct an evidentiary hearing, and make specific findings of fact concerning all the questions raised in petitioner's petition for writ of habeas corpus.\\nIn compliance with such order, the district court of Hughes County conducted a full hearing on October. 5, 1967, at which time the petitioner was present in person and represented by counsel appointed by the court. At such hearing the petitioner testified, as did the court clerk of Hughes County (concerning the record and files of said court); the Hon. Walter Billingsley, the attorney who represented the petitioner in the Hughes County cases; the Hon. George S. Turner, who had been county attorney of Hughes County at the time these cases were processed; and the Hon. Bob Howell, who was judge of the district court of Hughes County at the time, and who signed the judgments and sentences in question.\\nAfter such hearing, the Hon. Lee R. West, district judge, who presided, made the following \\\"Findings of fact of the Court\\\":\\n\\\"All right, in accordance with the order that the court make and state the findings of fact and transcribe them, the court finds, as a matter of fact, that the defendant did appear in court in case 2934 on the 14th day of October, 1959, with counsel present; that he was fully advised of his rights, all of his constitutional rights were explained and protected; that he, in agreement with his attorney of record, entered a plea of guilty, and it was the recommendation of the county attorney that he receive a five-year sentence on that charge; and that that was the judgment and sentence of the court.\\n\\\"It is the further finding of the court in this hearing that the defendant, at that time- \\u2014 that the court, at that time, and in the presence of the defendant and by defendant's counsel, Mr. Walter Billings-ley, was advised that charges would be thereafter soon filed in cases which later were designated as 2982 and 2983; and that the county attorney had agreed to make recommendations of sentences in that \\u2014 those two cases; and that Mr. Bill-ingsley requested and received permission to be absent in those cases, although it does appear that Mr. Billingsley was not actually an attorney of record; that thereafter on the 15th day of October, the defendant appeared in person and was arraigned in cases 2482 and 2483; that his rights were adequately explained and protected; that he entered pleas of guilty in both cases; that the recommendation of the district attorney \\u2014 of the county attorney, pardon me, was that he receive sentences of five years in each of those two cases, but that each of them would run \\u2014 or the judgment and sentence in each of these two cases would run concurrently one with the other; that the evidence does not support any finding that it was understood and agreed that all three of these sentences would run con currently each with the other; that the defendant \\u2014 I mean, pardon me, strike that; that the judgment and sentence forms executed by the court in each of the three cases does set down a specific day that the sentence was to commence, being in case 2934, October the 14th, 1959; and each of the cases, 2982 and 2983, October the 15th, 1959; but it is the finding of this court that this is a form-type judgment and sentence and that it was not the intention of the court that these sentences run concurrent \\u2014 concurrently with the judgment and sentences from Pontotoc and Seminole counties, for the reason that the court was well aware that this is in violation of the laws of Oklahoma; nor was it intended that cases 2982 and 2983, the judgment and sentences therein, would run concurrently, or nearly so, with 2934. All right, now the court further directs that these findings, together with all the evidence adduced herein, will be transcribed and transmitted to the court clerk of the court of criminal appeals of the state of Oklahoma as early as possible consistent with the court's order.\\\"\\nIn Ex parte Griffen, 91 Okl.Cr. 132, 216 P.2d 597 (cert. denied 340 U.S. 835, 71 S.Ct. 17, 95 L.Ed. 613) this Court held:\\n\\\"Where a defendant is convicted of two or more crimes, where imprisonment is adjudged as a part of the penalty, the sentence in the second or subsequent conviction can run concurrently with the first only in cases where the convictions are had in the two or more cases before sentences had been pronounced in either, and then where the judgment and sentence in the second or subsequent conviction designates that such sentence shall run concurrently with the judgment and sentence in the first or prior convictions. Sections 2303, 2774 Comp.St. 1921; Title 22 \\u00a7 976 and Title 21, \\u00a7 61 O.S.1941.\\n\\\"The time fixed for the commencement of a sentence is not one of its essential elements. The essential part of the judgment is the. punishment and the amount thereof. The time when it shall commence is in the nature of an award o\\u00a3 execution.\\\"\\nUnder the findings of fact herein-before set out, and the holdings in the-above case and the cases cited therein, the-petition for writ of habeas corpus must be, and the same is, denied.\\nNIX, P. J., and BUSSEY, J., concur.\"}"

okla/10588498.json

@@ -0,0 +1 @@
+"{\"id\": \"10588498\", \"name\": \"Red IVY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error\", \"name_abbreviation\": \"Ivy v. State\", \"decision_date\": \"1966-04-20\", \"docket_number\": \"No. A-13910\", \"first_page\": \"1007\", \"last_page\": \"1012\", \"citations\": \"414 P.2d 1007\", \"volume\": \"414\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T17:25:11.493029+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Red IVY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.\", \"head_matter\": \"Red IVY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.\\nNo. A-13910.\\nCourt of Criminal Appeals of Oklahoma.\\nApril 20, 1966.\\nRehearing Denied June 9, 1966.\\nRinehart, Rinehart & Rinehart, El Reno, Malcolm Baucum, Oklahoma City, for plaintiff in error.\\nCharles Nesbitt, Atty. Gen., Charles L. Owen, Asst. Atty. Gen., for defendant in error.\", \"word_count\": \"2169\", \"char_count\": \"12953\", \"text\": \"PER CURIAM.\\nPlaintiff in error, Red Ivy, was charged in the county court of Caddo County with the crime of operating a motor vehicle while under the influence of intoxicating liquor. He was tried by a jury, found guilty and punishment assessed at ten days in the county jail, and a $200 fine. From that judgment and sentence he has appealed to this Court, alleging several assignments of error.\\nThe first proposition of error is that the verification of the information was insufficient to invoke the jurisdiction of the court. Page 13 of the casemade contains the defendant's \\\"Motion to quash and set aside information filed herein\\\", which states: \\\" and moves the court to quash and set aside the purported informa-tions and/or warrants filed herein for the reason the same were not prepared and filed according to law\\nThe court's order denying defendant's motion is on page 14 of the casemade, which recites: \\\" and the court being ful ly advised in the premises, and upon consideration 'thereof, finds that the same should he overruled.\\\"\\nThe record reveals that defendant was arrested by Highway Patrol Trooper Fil-more Edgmon in the late afternoon of September 24, 1965, and placed in the county jail at Anadarko. Defendant posted bond and was released.\\nOn September 27, 1965 an information was filed in the county court, charging defendant with the above mentioned offense. The verification portion of the information reads as follows:\\n\\\"STATE OF OKLAHOMA, CADDO COUNTY, ss\\n\\\"Personally appeared Filmore Edgmon who, being first duly sworn, on his oath says that the statement contained in the above information is true.\\n/s/ Filmore Edgmon\\n\\\"Subscribed and sworn to before me this 27th day of September, 1965.\\n/s/ Dewey E. Hodges\\nCounty Judge.\\n\\\"STATE OF OKLAHOMA, CADDO COUNTY, ss:\\n\\\"I have examined the facts in this case and recommend that a warrant do issue.\\n\\\"Dated this 27th day of September, 1965.\\n/s/ Theodore P. Roberts County Attorney of Caddo County, Oklahoma.\\\"\\n(Emphasis added)\\nThis appears to be regular in form, and had the defendant failed to offer his motion to quash, he would have waived this defect. Also, at the time defendant offered his motion, the county attorney could have corrected it, but he did not attempt to do so. Thereafter, when the court entered its order overruling defendant's motion, which recited: \\\"being fully advised in the premises\\\", what initially amounted to a minor error was compounded into a fatal one.\\nTrooper Edgmon's testimony is found on page 30 of the casemade, wherein he states, under oath, that he left the State of Oklahoma on September 25, 1965; and was in California on the 27th day of September, when he was purported to have appeared before the county judge to sign the information. He further testified, \\\"I signed it before I left the sheriff's office that afternoon\\\". When the defense counsel attempted to show that the trooper, in fact, signed a blank information sheet, the court refused to permit the question.\\nEvidently the charges were prepared, and presented to the County Judge, who executed the verification as a matter of form.\\n22 C.J.S. Criminal Law \\u00a7 308, p. 801, states:\\n\\\"A printed form which is signed in blank by an officer and is later filled in by another in the officer's absence, and without his knowledge or consent is invalid as an information or complaint.\\\"\\nIn a New Jersey case, State v. Mershon, 39 N.J.Super. 599, 121 A.2d 777, it was stated:\\n\\\"Where police officer making and signing complaint against defendant for careless driving did not appear or swear to the complaint before clerk who signed jurat, the complaint was invalid ab ini-tio and all proceedings taken thereunder were illegal.\\\"\\nThe third paragraph of the syllabus in Cole v. State, 92 Okl.Cr. 316, 223 P.2d 155, 157, states:\\n\\\"We do not believe that an affidavit can be made by proxy, but the affiant must do some unequivocal act in the presence of the magistrate showing an indication that he intended to take the oath.\\\"\\nSee also Loudermilk v. State, 83 Okl.Cr. 374, 177 P.2d 129; Farrow v. State, 71 Okl.Cr. 397, 112 P.2d 186.\\nIn the case of Lambert v. Powell & White, 6 Orleans App. 195, speaking about the practice of executing affidavits, that court said:\\n\\\"The argument that the practice of having the affiant sign the affidavit outside. of the presence of the notary is a common and everyday occurrence, does not appeal to this Court. The practice is a dangerous and intolerable one. It is too radical a departure from , the formality of taking the oath as contemplated by law.\\\"\\nWhen the county attorney chose to stand on the information, as it was filed without correction, he committed fatal error. The criminal procedures permit an information to be amended; and this should have been done.\\nIn Cody v. State, Okl.Cr., 376 P.2d 625, this Court said:\\n\\\"An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant.\\\"\\nSee also, Raybourn v. State, Okl.Cr., 339 P.2d 539; Prestage v. State, Okl.Cr., 348 P.2d 865, and others.\\nThe Attorney General states in his brief, as his first proposition: \\\"An information which is complete and regular on its face is sufficient to invoke the jurisdiction of the Court.\\\" But we submit, this information, though it appears to be complete and regular on its face, has been challenged. He cites, Ex parte Talley, 4 Okl.Cr. 398, 112 P. 36, 31 L.R.A.,N.S., 805 a 1910 case. In that case the court said:\\n\\\"The verification is no part of the information itself; and an unverified information charging an offense in proper and intelligible language, signed by the county attorney and filed in a court having jurisdiction of the offense charged, though insufficient to authorize the issuance of a warrant of arrest, if not properly challenged is sufficient for all other purposes. The requirement that the information be verified being for the personal benefit of the defendant, we see no reason why he may not waive it if he desires; and if he submits himself to the jurisdiction of the court, either by voluntarily appearing and answering the information, or by failing to move to quash the same when arrested and brought up for arraignment, he thereby waives the defect.\\\" [Emphasis ours.]\\nIn the case at hand, the defendant did not waive the defect. He entered his motion to quash the information and warrant, which motion should have been sustained, in the absence of correcting the defect.\\nThe Attorney General then quotes from Moss v. State, 4 Okl.Cr. 247, 111 P. 950, as follows:\\n\\\"The want of a verification or a verification insufficient on its face will justify the quashing of the information on a seasonable motion, so an information properly verified on its face cannot be set aside on a showing that the affiant had no personal knowledge of the matters to which he swore in verifying it.\\\"\\nWe submit that this information is not properly verified, and the defendant is not challenging the affiant's personal knowledge of the matters to which he swore; but instead, the defendant is contesting the verification as being invalid, because the affiant was outside the State of Oklahoma when it was purportedly sworn to before the county judge.\\nSince the testimony of the trooper sustains defendant's contention of the invalidity of the verification; and since the county attorney failed to correct the error, when he had the opportunity; and since the defendant properly challenged its sufficiency in due time, we have no alternative except to sustain defendant's contentions. It has been the rule for a long time that defendant waives his right to object or complain, under certain circumstances; and by the same token, when defendant opens the door for the county attorney to correct a defective information, and he chooses not to do so, then the county attorney must accept the responsibility for his failure. He and the county judge knew that the trooper was out of the State on September 27th. If they didn't have such knowledge, they should have determined the fact, which would have been done had the trooper properly verified the information.\\nThis Court is of the opinion that, under these facts, the signing of the blank information, and the subsequent false verification executed by the county judge was fatal error.\\nThis information was the foundation of the jurisdiction of the trial court. Since it was illegal from the inception, it follows that all of the proceedings of the trial were also illegal. The motion to quash, filed by the defendant, should have been sustained and a proper information filed. However, the trial judge overruled this motion, and proceeded to trial.\\nDue process of law requires that the official signature of the trooper should have been affixed thereto, after the charge was filled in the information. The last sentence of Title 22 Okl.St.Ann. \\u00a7 303, states: \\\"All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.\\\"\\nThis is applicable to misdemeanors, and this requirement \\u2014 that an information charging a misdemeanor shall be verified in positive terms before warrant issues, \\u2014 is intended for the preservation of the liberty of the individual, by forbidding issuance of a warrant except on probable cause shown under oath. See Ex parte Talley, 4 Okl.Cr. 398, 112 P. 36, 31 L.R.A., N.S., 805; Ex parte Simmons, 4 Okl.Cr. * XIV, 112 P. 41; Ex parte Crawford, 4 Okl.Cr. *XIII, 112 P. 41; Lloyd v. State, 42 Okl.Cr. 163, 274 P. 901.\\nWe submit that this case does not come under the rule stated in the Attorney General's brief, wherein he says, \\\"many cases in Oklahoma have held that a complaint or information, verified in positive terms cannot be attacked collaterally by showing that the person verifying it had no personal knowledge of the facts sworn to.\\\" The facts and question set forth in the instant case, so far as this writer has been able to determine, have never before been presented to this Court.\\nIn the case of Fullingin v. State, 7 Okl.Cr. 333, 123 P. 558, the county attorney had, prior to the commission of the alleged offense, signed a number of blank informa-tions and left them with the clerk of the court at the \\\"court town\\\" of Snyder, and the clerk thereafter inserted the charge in the blank information. This Court stated that this was not a defect in matter of form only, but was a defect of substance and prejudicial to the substantial rights of the defendant, and was reversible error.\\nWe are of the opinion, under these circumstances, that it would be a travesty of justice to overlook this discrepancy as being technical and unimportant. Such reasoning might well be applied to other in stances of misfeasance, or nonfeasance, which consequently cause fundamental error. To permit a complainant, regardless of whether he is a law enforcement officer or not, to make a complaint on a blank information without the necessity of being placed under oath, would most certainly open the door to abuses, the bounds of which cannot be calculated; and the complainant meanwhile not being held accountable for untruths in the charge. The practice of leaving informations, \\\"signed in blank\\\", is a loose and dangerous practice, and should be discontinued.\\nDefendant also complains of the court's instruction No. 5. Even though this complaint is not fundamental, we are of the opinion that the instruction was not necessary. As this Court stated in Shaffer v. State, Okl.Cr., 283 P.2d 578, 579:\\n\\\"An examination of this Instruction (No. 5) reveals that it was an attempt to expand on the law, as announced in Instruction No. 4, defining drunk driving. Instruction No. 4 was a correct Instruction, Luellen v. State, 64 Okl.Cr. 382, 81 P.2d 323.\\\"\\nSubsequent to the Shaffer case, the county judge removed that paragraph from his instructions, which commented on the weight of the evidence. However, this Court went further to say in the Shaffer case, concerning the same instruction No. 5 :\\n\\\"There was no necessity in giving Instruction No. 5, since it served no useful purpose, and was clearly prejudicial to the defendant's rights.\\\"\\nInsofar as the previous instruction properly defined the law, instruction No. 5 could serve no purpose except to confuse the jury, and was unnecessary.\\nTherefore, for the reasons herein stated, the judgment and sentence herein imposed should be, and the same is, reversed and remanded for a new trial, not inconsistent with the principles herein stated.\"}"

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+"{\"id\": \"11495656\", \"name\": \"STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Daniel DORIS, Respondent\", \"name_abbreviation\": \"State ex rel. Oklahoma Bar Ass'n v. Doris\", \"decision_date\": \"1999-12-07\", \"docket_number\": \"SCBD No. 4400\", \"first_page\": \"1015\", \"last_page\": \"1026\", \"citations\": \"991 P.2d 1015\", \"volume\": \"991\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T23:41:46.555109+00:00\", \"provenance\": \"CAP\", \"judges\": \"\\u00b6 45 SUMMERS, C.J., HARGRAVE, V.C.J., HODGES, OPALA, KAUGER, and WATT, JJ., concur.\", \"parties\": \"STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Daniel DORIS, Respondent.\", \"head_matter\": \"1999 OK 94\\nSTATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Daniel DORIS, Respondent.\\nSCBD No. 4400.\\nSupreme Court of Oklahoma.\\nDec. 7, 1999.\\nAs Corrected Dec. 20, 1999.\\nLoraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma for Complainant.\\nNo appearance by Respondent.\", \"word_count\": \"6952\", \"char_count\": \"42400\", \"text\": \"LAVENDER, J.\\n\\u00b6 1 Complainant, the Oklahoma Bar Association brought disciplinary proceedings against respondent, Daniel Doris, under Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.1991, Ch. 1, App. 1-A, as amended. A Professional Responsibility Tribunal trial panel found violations of the RGDP and the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.1991, Ch. 1, App. 3-A, as amended, and recommends disbarment. After de novo review, we find respondent guilty of numerous acts of misconduct and the appropriate discipline is disbarment. We also hold respondent should pay the costs of these proceedings.\\nPARTI. STANDARD OF REVIEW.\\n\\u00b62 The standard of review in attorney disciplinary proceedings is as follows:\\nIn attorney disciplinary proceedings this Court's determinations are made de novo. The ultimate responsibility for deciding whether misconduct has occurred and what discipline is warranted if misconduct is found rests with us in the exercise of our exclusive original jurisdiction in bar disciplinary matters. Accordingly, neither the findings of fact of a Professional Responsibility Tribunal (PRT) nor its view of the evidence or credibility of witnesses are binding on us and [its] recommendations . are merely advisory, (citations omitted)\\nState ex rel. Oklahoma Bar Ass'n v. Todd, 1992 OK 81, 833 P.2d 260, 262.\\n\\u00b6 3 The de novo review standard involves a full-scale exploration of all relevant facts. State ex rel. Oklahoma Bar Ass'n v. Carpenter, 1993 OK 86, 863 P.2d 1123, 1128. As such, it requires a complete record be made before the trial panel \\u2014 a record sufficient for an examination of all pertinent issues, a thorough inquiry into all essential facts, and the crafting of appropriate discipline. Id. at 1128-1129. The record presented is adequate for the required de novo review.\\nPART II. FACTS AND PROCEDURAL BACKGROUND.\\n\\u00b6 4 At the time of the trial panel hearing in June 1999 respondent was an attorney licensed to practice law in Oklahoma and he was subject to this Court's jurisdiction. Five counts of misconduct were lodged: counts III by complaint filed in November 1998; counts III-FV by amended complaint filed in December 1998; and count V by second amended complaint filed in March 1999. Discipline enhancement was sought because in May 1995 respondent was privately reprimanded by the Professional Responsibility Commission for misconduct arising out of his failure to appear at a scheduled court hearing. The record shows the complaint, amended complaint and second amended complaint were furnished to and received by respondent.\\n\\u00b65 Respondent filed a response to the complaint in December 1998. It stipulated to the allegations of count I, admitted some allegations of count II, claimed insufficient information to either admit or deny other allegations of count II, and denied other allegations of that count. No formal written answer or response was filed to the amended or second amended complaints, which both re-adopted and re-alleged counts I \\u2014 II of the complaint.\\n\\u00b6 6 The record includes the transcript of the June 1999 trial panel hearing, at which eight witnesses testified and over 130 exhibits were admitted. It also includes the pleadings, trial panel orders filed, and the panel's written report and a correction thereto. As will be seen, respondent was partly uncooperative during the investigative stage of this matter and, even though he had adequate notice of the June hearing, he failed to attend it. The record also shows that on the morning of the hearing the panel's presiding master tried to contact respondent by telephone at his then current residence (apparently his sister's home) and was informed (apparently by his sister) that he was at work at K-Mart.\\n\\u00b67 Respondent also failed to submit a response brief to complainant's brief filed in this Court in July 1999. He further has a history of alcohol-related problems, which we find, he failed to fully recognize or control, even after three convictions (two misdemeanors and a felony) for driving under the influence of alcohol, four other arrests for alcohol-related offenses while in control of a motor vehicle, and even after the present chai'ges had been initiated.\\n\\u00b68 An investigator for complainant that handled much of the investigation in regard to this matter also testified at the June 1999 hearing that respondent told him at some point during the investigation that he, respondent, no longer wanted to practice law and he no longer had an interest in it. Respondent also told the investigator, however, he was not going to resign from membership in the Oklahoma Bar Association because he did not want his name to appear in the Oklahoma Bar Journal as having resigned\\u2014 that if complainant wanted his license to practice law, complainant was going to have to take it.\\n\\u00b6 9 Prior to the trial panel hearing, complainant filed a motion to deem all allegations of the complaint, and the amended and second amended complaints admitted, or alternatively, to deem the allegations in the latter two pleadings admitted by respondent. Respondent did not respond to the motion. The motion's basis was that respondent had failed to answer or respond to the amended or second amended complaints and, although he did submit a formal written response to the complaint, it was filed out of time without his seeking permission to so submit it. The motion was anchored on Rule 6.4, RGDP, 5 O.S.1991, Ch. 1, App. 1-A, which provides:\\nThe respondent shall within twenty (20) days after the mailing of the complaint file an answer with the Chief Justice. The respondent may not challenge the complaint by demurrer or motion. In the event the respondent fails to answer, the charges shall be deemed admitted, except that evidence shall be submitted for the purpose of determining the discipline to be imposed.\\nThe trial panel sustained the motion, ruling all allegations of the complaint, amended and second amended complaints to be deemed admitted by respondent.\\n\\u00b6 10 In that respondent's December 1998 response stipulated to count I's allegations, and most of the substantial allegations of counts I \\u2014 II were proved by clear and convincing evidence in any event, we need not decide the propriety of sustaining the motion in regard to the complaint. Plainly, however, it was properly granted as to counts III-V because respondent did not submit a formal response to the amended or second amended complaints. State ex rel. Oklahoma Bar Ass'n v. McCoy, 1996 OK 27, 912 P.2d 856, 860. Finally, even as to counts III-V, the proof at the hearing showed multiple instances of misconduct, including misappropriation or theft of client funds by conversion (count V), misconduct warranting disbarment.\\n\\u00b6 11 Summarized, the record in this matter shows respondent in violation of the following: Rules 1.3 (acts contrary to prescribed standards of conduct) ; 1.4 (trust account dereliction, mishandling of client funds and intentional misappropriation of client funds) ; and 5.2 (non-responsiveness in disciplinary process) of the RGDP. He also violated the following provisions of the ORPC: Rules 1.1 (failing to provide competent representation to a client) ; 1.3 (failure to act with reasonable diligence and promptness in representing a client) ; 1.4 (client-communication lapses) ; 1.15 (mishandling and record-keeping lapses in regard to client funds) ; 3.2 (failure to make reasonable efforts to expedite litigation) ; 3.5(d) (engaging in conduct intended to disrupt a tribunal) ; 4.4 (engaging in conduct, while representing a client, having no substantial purpose, except to delay or burden a third person) ; 8.1(b) (in connection with a disciplinary matter, failing to disclose a fact necessary to correct a misapprehension known to have arisen in the matter or knowing failure to properly respond to disciplinary authority demand for information) ; 8.4(a) (violating or attempting to violate the ORPC); 8.4(b) (commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects); 8.4(e) (conduct involving dishonesty, fraud, deceit or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice).\\nPART 11(A). COMPLAINT \\u2014 COUNT I.\\n\\u00b6 12 Count I concerns respondent's representation of David Herndon in a forged in-strumenVcheck dispute with the Bank of Oklahoma (BOK). In December 1996 he filed suit against BOK in Tulsa County on Herndon's behalf in relation to the dispute. Thereafter, he called Herndon with a BOK settlement offer of $1,500.00, which Herndon agreed to accept. A dismissal with prejudice, signed by respondent, was filed in the case in April 1997. Around this same time period respondent told Herndon, \\\"it could be awhile\\\" before Herndon got paid.\\n\\u00b6 13 Although there is no direct evidence respondent received the settlement check from BOK in April 1997, the circumstantial evidence, primarily the filing of the dismissal with prejudice, leads to the conclusion a check in such amount was received by him on Herndon's behalf about such time. Further, respondent stated to an investigator for complainant that he cashed the settlement check and kept the proceeds for a lengthy period of time in his desk, although the record does not show exactly when the check was cashed by respondent.\\n\\u00b6 14 The record also shows respondent did not maintain a trust account for client funds during the relevant time period and that Herndon was not paid the $1,500.00 until June 1998, i.e. over a year after the dismissal with prejudice was filed and only after Hern-don filed a grievance against respondent with the Tulsa County Bar Association in January 1998, which in March 1998 was referred to complainant. In addition to the above, before bringing a grievance, Herndon repeatedly tried to contact respondent by telephone, mail and in person concerning the settlement money, but respondent did not return Hern-don's calls or answer his letters.\\n\\u00b6 15 On May 7, 1998 complainant sent respondent a letter notifying him of Herndon's grievance and advising he had twenty days to respond under Rule 5.2, RGDP. A letter from respondent was received by complainant on May 27, 1998 that was not fully and fairly responsive to Herndon's grievance. In the letter he stated in part: \\\"I have his money. My question to you is whether I should send it to him or to you.\\\" Both by telephone message and by letter dated May 29 complainant essentially advised respondent to direct any payment to Herndon. As of June 10, 1998 complainant was advised that respondent had not contacted Herndon.\\n\\u00b6 16 On June 11 complainant sent respondent a certified letter to his Oklahoma Bar Association roster address requesting he contact complainant within five days pursuant to Rule 5.2, RGDP. Respondent failed to re spond to the June 11 letter and, consequently, a subpoena was issued commanding him to appear on June 24 at the Oklahoma Bar Center in Oklahoma City for his deposition and to produce any bank records, etc. concerning the $1,500.00 settlement. The subpoena was personally served on respondent June 19. That same day he finally paid Herndon $1,500.00 by cashier's check, which showed respondent as the remitter.\\n\\u00b6 17 A few days later complainant sent respondent another copy of Herndon's grievance and a letter informing him that Herndon's payment would not dispose of the matter and again informed him, he was to provide a full and fair response to the grievance. Further, in that it had come to light during the investigation that respondent had lost his driver's license, complainant, in the same letter, requested he detail the circumstances concerning loss of his driver's license.\\n\\u00b6 18 Contact was had between respondent and complainant concerning his deposition and, by agreement, the deposition was reset for July 1, 1998 at the Tulsa County Bar Association. It was also agreed that if he provided an adequate written response to the grievance by June 25, the deposition would be canceled. Respondent did not provide a written response by the agreed date. On June 29, by fax, complainant advised respondent of the date, time and location of his deposition in Tulsa. Respondent's secretary confirmed receipt of the fax and left a message for him to call complainant. Respondent did not appear for his July 1 deposition and he failed, prior to the deposition, to inform complainant he would not appear.\\n\\u00b6 19 On July 6 respondent sent complainant a fax advising he was sick the week of his scheduled deposition and he offered to reschedule it. The deposition was reset by agreement, but before the agreed date respondent contacted complainant advising he would be unable to appear (basically due to lack of transportation) and requesting the deposition again be rescheduled.\\n\\u00b6 20 In a letter dated June 25, 1998 from respondent to complainant, but not received by complainant until July 7 and not postmarked until July 6, respondent indicated he had been experiencing personal problems and he had been out of his office for several days at a time for several months. The letter also admitted he had not timely notified Herndon about the settlement funds, and he had failed to comply with Rule 1.15, ORPC, because he did not keep written books or records concerning client money he may have received in his professional capacity. The letter further stated his driver's license was suspended in July 1997, he had not driven since May 1997 and he was working with another attorney in Alcoholics Anonymous, apparently concerning a drinking problem.\\n\\u00b6 21 Although the record is not completely clear as to the exact details concerning the loss of respondent's driver's license, the fact is respondent had no valid driver's license in May 1997. In fact, the record shows respondent has, at least, two convictions for driving a motor vehicle while he had no valid driver's license, one in May 1997 and one in January 1998. It also shows he has three convictions (two misdemeanors and a felony) for driving while under the influence of alcohol. See PART 11(C), AMENDED COMPLAINT-COUNT III, infra.\\n\\u00b6 22 The record also shows respondent told an investigator for complainant, in his view, his problem with Herndon was one of \\\"neglect\\\". He also told the investigator receiving a subpoena had nothing to do with him paying Herndon and again, in his view, he had adequately responded to the Herndon grievance.\\n\\u00b6 23 In its June 25,1999 written report the trial panel also found that on his 1998 annual dues statement respondent falsely checked the box indicating he did not receive or disburse client funds and, therefore, did not maintain a trust account. Rule 1.4(a), RGDP requires Oklahoma attorneys to file an annual certificate concerning their trust accounts) or, instead, to execute a form indicating they do not maintain such account(s) and the reason(s) why they do not, i.e. that they do not receive or disburse client funds. Respondent's 1998 annual trust account certificate was signed by him in November 1997. As is obvious from the record in this case, respondent's November 1997 annual certificate denying he received or disbursed client funds was false given the fact the record shows he was in possession of Herndon's funds at the time he executed the certificate and the funds were finally disbursed to Herndon in June 1998.\\nPART 11(B). COMPLAINT \\u2014 COUNT II.\\n\\u00b6 24 This count concerns respondent's representation of Daniel Wafford in a divorce case from June 1997 to April 1998. A trial date was set for February 9, 1998 at a pretrial conference that respondent attended. Respondent did not appear on February 9 and he failed, prior to that date, to inform the assigned judge, his client or opposing counsel he would not appear. He later admitted to Wafford he had been intoxicated on February 9.\\n\\u00b6 25 After discussing the situation with a potential new attorney and with respondent, Wafford agreed to respondent's continued representation and the case was reset for trial on March 2. Thereafter, respondent failed to keep an appointment with Wafford for trial preparation, without advising Waf-ford he would not be able to keep the appointment. He also admitted to opposing counsel during this time period he suffered from depression and he \\\"self-medicated\\\" himself with alcohol.\\n\\u00b626 On March 2 and 3 respondent did appear for trial. On one or both days he was either in an intoxicated state or in a state in which he was \\\"hung-over\\\" from the recent use of alcohol. The evidence also showed he was, in part, unprepared to conduct the trial on his client's behalf in a reasonably competent manner. After Wafford initiated a grievance against him with complainant, respondent was mailed a copy of the grievance and asked to respond. Although it is questionable whether the response was a full and fair response to all the allegations made against him, respondent did respond to the Wafford grievance in a timely manner.\\nPART 11(C). AMENDED COMPLAINT-COUNT III.\\n\\u00b6 27 The charges of this count are deemed admitted by respondent by virtue of his failure to file a formal written answer or response to the amended complaint. The substance of count III concerns respondent's two misdemeanor convictions for driving while under the influence of intoxicating liquor and a felony conviction for the same offense. All occurred in Tulsa County. The first misdemeanor conviction was in October 1993 for an offense occurring in September 1993. The second was in May 1997 for an offense occurring in December 1996. The felony conviction was for an occurrence happening later the same day that respondent had been sentenced for the second misdemeanor conviction in May 1997. He was sentenced on the felony conviction, to which he plead guilty, in January 1998. The record also shows respondent has, at least, two convictions for driving a motor vehicle while he had no valid driver's license, one in May 1997 and one in January 1998.\\n\\u00b628 Less than a month after the felony conviction, as seen by reviewing our discussion of count II above, respondent failed to appear at trial in the Wafford divorce case in February 1998 because he was intoxicated on alcohol. In addition to his convictions, the record further shows respondent has a prior history of arrests for alcohol-related offenses and use of a motor vehicle \\u2014 in 1985, 1986, 1989 and in 1992.\\n\\u00b6 29 Although respondent did respond to a grievance initiated by complainant concerning his felony driving under the influence conviction, the response was untimely, and as we read it, evidences respondent's view that his alcohol-related driving problems do not reflect on his fitness to practice law. The record further reveals that, as late as November 1998, respondent had not come to grips with his alcohol problem, as the record shows he was intoxicated in the middle of the afternoon on November 5, 1998 and the middle of the morning on November 24. These dates and times were two of the times he was served with subpoenas for his deposition(s) in relation to this disciplinary proceeding. The process server that personally served these notices was a witness at the June 1999 trial panel hearing and he testified, in essence, respondent was obviously intoxicated on alcohol at said times. The record also shows that respondent failed to show up for his own deposition in regard to this count, even though he was adequately noticed by subpoena for the deposition.\\nPART 11(D). AMENDED COMPLAINT-COUNT IV.\\n\\u00b6 30 The charges in this count are deemed admitted by respondent because of his failure to file a formal written answer or response to the amended complaint. Count IV involves respondent's representation of a Ruth Kelley in a divorce-related proceeding in Tulsa County. Margaret Lowery represented Timothy Kelley in the matter. Respondent failed to appear at a scheduled hearing in the matter on August 10, 1998 and failed to notify the judge handling the case, his client or opposing counsel he would not be able to appear. The hearing was required to be continued to a subsequent date.\\n\\u00b6 31 Previous to the August 1998 hearing respondent appeared at the Tulsa County Courthouse in relation to another hearing in said case while under the influence of intoxicating liquor. This occurred in November 1997. Respondent also failed to return opposing counsel's telephone calls regarding attempts to settle the matter. Further, respondent failed to appear for his deposition in regard to the misconduct involved in count IV, even though he was properly subpoenaed for said deposition.\\nPART 11(E). SECOND AMENDED COMPLAINT \\u2014 COUNT V.\\n\\u00b6 32 The second amended complaint added count V. The allegations of this count are deemed admitted by respondent's failure to submit an answer or response to the second amended complaint. Further, respondent did not respond in writing to the grievance initiated against him in regard to count V, even though the record shows complainant served him with a copy of the grievance and sought a response from him under Rule 5.2, RGDP.\\n\\u00b6 33 Count V generally concerns respondent's representation of Earl Smith in relation to a garnishment proceeding. The most serious misconduct involved with this count is that respondent intentionally misappropriated funds belonging to Smith. Although the charges in count V are deemed admitted by respondent's failure to submit an answer or response, the evidence presented at the June 1999 trial panel hearing clearly and convincingly showed the following pertinent facts in any event.\\n\\u00b6 34 In March 1997 Smith (as plaintiff) received a judgment against a tenant in the amount of $4,500.00 in a Tulsa County case. With post-judgment interest the amount owed to Smith in December 1997 was $4,808.81. Certain property of the tenant (or former tenant) was sold at auction. Funds in the auctioneer's hands were garnished for the amount of the judgment, plus the interest. On January 29, 1998 the auctioneer delivered to respondent, on Smith's behalf, a check in the amount of $4,808.81 made payable to respondent. Respondent negotiated the check on or about the same day.\\n\\u00b6 35 Thereafter, on more than one occasion Smith requested respondent to pay him the proceeds Smith was due. Respondent told Smith, on more than one occasion in the spring of 1998, he would pay Smith the money due, including that he would pay Smith by May 15,1998. These representations were false because respondent did not pay Smith and, in fact, as of the date of the June 1999 trial panel hearing, respondent had failed to pay any part of the $4,808.81 to Smith. Up to the present time, no submission in this case discloses that respondent has paid any portion of the $4,808.81 that Smith is due.\\nPART III. DISCIPLINE.\\n\\u00b6 36 In disciplinary proceedings this Court acts as a licensing court in the exercise of our exclusive original jurisdiction, not as a reviewing tribunal. State ex rel. Oklahoma Bar Ass'n v. Downing, 1990 OK 102, 804 P.2d 1120, 1122. It is our nondele-gable, constitutional responsibility to decide the discipline warranted when an attorney is found to have engaged in professional misconduct. Id.; State ex rel. Oklahoma Bar Ass'n v. Barnett, 1997 OK 61, 940 P.2d 493, 495 (Court's duty in misconduct cases is to independently determine the proper discipline).\\n\\u00b637 Our responsibility is not to punish the offending lawyer, but to assess his/her continued fitness to practice law. State ex rel. Oklahoma Bar Ass'n v. Meek, 1994 OK 118, 895 P.2d 692, 699. In misconduct cases, we are required to exercise our responsibility with a view to safeguarding the interests of the public, the courts and the legal profession. Id. Also, to arrive at appropriate discipline, a fit factor to consider is the deterrent effect upon both the offending respondent and other attorneys who might contemplate similar conduct in the future. State ex rel. Oklahoma Bar Ass'n v. McMillian, 1989 OK 16, 770 P.2d 892, 899; State ex rel. Oklahoma Bar Ass'n v. Hall, 1977 OK 117, 567 P.2d 975, 978.\\n\\u00b6 38 Other factors properly considered include comparing the circumstances in the matter at hand with previous disciplinary matters, and examining an attorney's past record of professional behavior. Meek, supra, 895 P.2d at 700. Mitigating circumstances are also often considered when assessing the appropriate measure of discipline. State ex rel. Oklahoma Bar Ass'n v. Thomas, 1995 OK 145, 911 P.2d 907, 913. Further, although discipline should be administered fairly (i.e. evenhandedly), this Court has recognized that the extent of discipline must be decided on a case-by-case basis because each situation will usually involve different transgressions and different mitigating circumstances. See State ex rel. Oklahoma Bar Ass'n v. Rozin, 1991 OK 132, 824 P.2d 1127, 1130.\\n\\u00b6 39 We also note that, although in certain circumstances it may be appropriate for this Court to consider alcoholism or alcohol abuse as a mitigating factor in fashioning the suitable discipline in a Rule 6 proceeding, alcoholism is not in itself enough to mitigate discipline. State ex rel. Oklahoma Bar Ass'n v. Carpenter, supra, 863 P.2d at 1130. For alcohol abuse or alcoholism to be weightily considered as a mitigating factor, the offending attorney must recognize his problem, and seek and cooperate in treatment. Id.; State, ex rel. Oklahoma Bar Ass'n v. Donnelly, 1992 OK 164, 848 P.2d 543, 547-549. In other words, the mere fact that an attorney suffers from alcoholism may not be used as a shield from professional responsibility and where the facts warrant, discipline may be imposed. State ex rel. Oklahoma Bar Ass'n v. Adams, 1995 OK 17, 895 P.2d 701, 705. Here, our independent review convinces us respondent's problem(s) with alcohol should not be heavily considered as a mitigating factor. We also conclude that disbarment is the appropriate discipline for the misconduct shown by this record.\\n\\u00b6 40 Based on our review of the record, we can conclude nothing else but that respondent is guilty of intentional misappropriation in the Smith matt\\u00e9r. Respondent lied to Smith in the spring of 1998 when he told Smith he would pay the funds due. As the record shows, Smith was not paid and as of the June 1999 trial panel hearing Smith had not received the funds due him. We have been provided no information up to this date that Smith has been paid any of the $4,808.81 due.\\n\\u00b641 As to the Herndon matter, even though respondent eventually paid Herndon the $1,500.00 that was owed, this was done, by respondent's own admission, only after a lengthy period of failure to remit the funds to Herndon, and only after a grievance had been initiated and the disciplinary investigation against respondent was under way. The conduct exhibited by respondent in the Smith and Herndon matters cannot be tolerated by this Court.\\n\\u00b6 42 Our cases have articulated a continuum of culpability in evaluating the mishandling of client funds. State ex rel. Oklahoma Bar Ass'n v. Dunlap, 1994 OK 81, 880 P.2d 364, 366-367. Commingling occurs when a lawyer fails to keep client money, or money accepted on the client's behalf, in a separate account from that of the attorney. Id. at 367; State ex rel. Oklahoma Bar Ass'n v. Johnston, 1993 OK 91, 863 P.2d 1136, 1145. The next most serious offense occurs when an attorney uses a client's money for some purpose other than that for which it was intended. Dunlap, supra, 880 P.2d at 367; State ex rel. Oklahoma Bar Ass'n v. Farrant, 1994 OK 13, 867 P.2d 1279 (applying client payment intended for private investigator services to attorney's own fees); State ex rel. Oklahoma Bar Ass'n v. Cummings, 1993 OK 127, 863 P.2d 1164 (applying funds intended for deposition expenses toward claimed attorney fees). The most egregious offense, misappropriation, occurs when the attorney purposely deprives a client of money by way of deceit and fraud, i.e. theft by conversion or otherwise, and intentionally inflicts grave economic harm on his/her client. Johnston, supra, 863 P.2d at 1145; See also State ex rel. Oklahoma Bar Ass'n v. Raskin, 1982 OK 39, 642 P.2d 262. An attorney found guilty of this latter offense, i.e. theft by conversion or intentional misappropriation, results in the attorney's disbarment. Johnston, supra, 863 P.2d at 1145; Rule 1.4(c), RGDP. The record is clear that in at least the Smith matter respondent is guilty of intentional/purposeful misappropriation.\\n\\u00b6 43 In addition to the unprofessional conduct in dealing with client funds in the Smith and Herndon eases, the record shows client-communication lapses, missing court hearings, intoxication in court, and respondent's disregard for the law as shown by his repeated violation of Oklahoma's legal standards prohibiting driving a motor vehicle while intoxicated on alcohol. The record also shows his failure to fully cooperate in the disciplinary investigation and that he has been the subject of previous disciplinary action. Very simply, the totality of the misconduct shown by this record will not countenance any discipline other than disbarment.\\n\\u00b6 44 Accordingly, it is ORDERED by this Court that Respondent be DISBARRED AND HIS NAME STRICKEN FROM THE ROLL OF ATTORNEYS LICENSED TO PRACTICE LAW IN THIS STATE. Further, Respondent is ORDERED TO PAY THE COSTS OF THIS DISCIPLINARY PROCEEDING IN THE AMOUNT OF $1,911.81 WITHIN NINETY (90) DAYS FROM THE DATE THIS OPINION BECOMES FINAL.\\n\\u00b6 45 SUMMERS, C.J., HARGRAVE, V.C.J., HODGES, OPALA, KAUGER, and WATT, JJ., concur.\\n\\u00b6 46 BOUDREAU, J., not participating.\\n. Rule 6.16 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.1991, Ch. 1, App. 1-A, provides that where discipline is imposed, the costs of the investigation, record and disciplinary proceedings shall be surcharged against the disciplined lawyer, unless remitted for good cause by this Court. No good cause for remission has been shown.\\n. To warrant a finding of misconduct against a lawyer in a contested case, the charge(s) alleged must be established by clear and convincing evidence. Rule 6.12(c), RGDP, 5 O.S.1991, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass'n v. Thomas, 1995 OK 145, 911 P.2d 907, 909.\\n. The exhibits admitted on behalf of complainant, the Oklahoma Bar Association, were numbered 2 through 92. However, some contained more than one document with subpart numbering (e.g. 2A, 2B, etc.), so that actually over 130 exhibits were admitted.\\n. Rule 1.3, RGDP, 5 O.S.1991, Ch. 1, App. 1-A, provides:\\nThe commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.\\n. Rule 1.4, RGDP, 5 O.S. Supp.1992, Ch. 1, App. 1-A, provides:\\n(a) All members of the Bar who are required under the Oklahoma Rules of Professional Conduct, Rule 1.15, to maintain a trust account for the deposit of clients' funds entrusted to said attorney, shall do so and furnish evidence thereof as hereinafter provided. The Executive Director of the Oklahoma Bar Association shall annually mail a card to each lawyer requesting the name of the bank or banks in which the lawyer carries any trust account, the name under which the account is carried and the account number. Provision will be made on the card for a response by lawyers who do not maintain a trust account and the reason for not maintaining said account. Lawyers shall have thirty days from the receipt of said inquiry to respond. Information received by the Association as a result of such inquiry shall remain confidential unless a grievance is filed against a lawyer which, in the opinion of the Professional Responsibility Commission, may warrant disciplinary action in regard to the handling of said trust account. Failure of any lawyer to respond giving the information requested will be grounds for appropriate discipline.\\n(b) Where money or other property has been entrusted to any attorney for a specific purpose, he must apply it to that purpose. He may not avail himself of a counterclaim or set-off for fees against any money or other property of his client coming into his hands for such specific purpose, and a refusal to account for and deliver over such money or property upon demand shall be deemed a conversion. This does not apply to the retention of money or other property otherwise coming into the hands of a lawyer and upon which the lawyer has a valid lien for his services.\\n(c) Theft by conversion or otherwise of the funds of a client shall, if proved, result in disbarment.\\n(d)Controversies as to the amount of fees shall not be considered a basis for charges in a disciplinary proceeding unless it is made to appear that the amount demanded is extortionate or fraudulent.\\n- Rule 5.2, RGDP, 5 O.S.1991, Ch. 1, App. 1-A, provides:\\nAfter making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall either (1) notify the person filing the grievance and the lawyer that the allegations of the grievance are inadequate, incomplete, or insufficient to warrant the further attention of the Commission, provided that such action shall be reported to the Commission at its next meeting, or (2) file and serve a copy of tire grievance (or, in the case of an investigation instituted on the part of the General Counsel or the Commission without the filing of a signed grievance, a recital of the relevant facts or allegations) upon the lawyer, who shall thereafter make a written response which contains a full and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer's alleged misconduct unless the respondent's refusal to do so is predicated upon expressed constitutional grounds. Deliberate misrepresentation in such response shall itself be grounds for discipline. The failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further time as may be granted by the General Counsel, shall be grounds for discipline. The General Counsel shall make such further investigation of the grievance and response as the General Counsel may deem appropriate before taking any action.\\n. Rule 1.1, Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.1991, Ch. 1, App. 3-A, provides:\\nA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.\\n. Rule 1.3, ORPC, 5 O.S.1991, Ch. 1, App. 3-A, provides:\\nA lawyer shall act with reasonable diligence and promptness in representing a client.\\n. Rule 1.4, ORPC, 5 O.S.1991, Ch. 1, App. 3-A, provides:\\n(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.\\n(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.\\n. Rule 1.15, ORPC, 5 O.S.1991, Ch. 1, App. 3-A, provides:\\n(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the written consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.\\n(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.\\n(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.\\n(d) Trust Accounts. A lawyer or law firm may create and maintain an interest-bearing demand trust account and may deposit therein all funds of clients to the extent permitted by applicable banking laws, that are nominal in amount or are on deposit for a short period of time. Maintenance of such trust account balances in noninter-est-bearing trust accounts will still be permitted. The attorney electing to utilize interest-bearing trust accounts shall comply with the following provisions:\\n(1)the Interest-Bearing Demand Trust Account may be established with any bank or savings and loan association authorized by federal or state law to do business in Oklahoma and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation;\\n(2) the rate of interest payable on any interest-bearing demand trust account shall not be less than the rate paid by the depository institution to regular, nonattorney depositors. Higher rates offered by the institution to customers whose deposits exceed certain time or quantity minimums, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm so long as there is no impairment of the right to withdraw or transfer principal immediately (except as accounts generally may be subject to statutory notification requirements), even though interest may be sacrificed thereby;\\n(3) the depository institution shall be directed:\\n(A) to remit interest or dividends, as the case may be, on the average monthly balance in the account, at least quarterly, to the Oklahoma Bar Foundation, Inc.; and\\n(B) to transmit with each remittance to the Foundation a statement showing the name of the lawyer or the law firm for whom the remittance is sent and rate of interest applied; and\\n(4) in the event that any client asserts a claim against an attorney based upon such attorney's determination to place client advances in the Interest-Bearing Demand Trust Account because such balance is nominal in amount or held for a short period of time, the Foundation shall, upon written request by such attorney, review such claim and either:\\n(A) approve such claim (if such balances are found not to be nominal in amount or short in duration) and remit directly to the claimant any sum of interest remitted to the Foundation on account of such funds; or\\n(B) reject such a claim (if such balances are found to be nominal in amount or short in duration) and advise the claimant in writing of the grounds therefor. In the event of any subsequent litigation involving such a claim, the Foundation shall interplead any such sum of interest and shall assume the defense of the action.\\n. Rule 3.2, ORPC, 5 O.S.1991, Ch. 1, App. 3-A, provides:\\nA lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.\\n. Rule 3.5(d), ORPC, 5 O.S.1991, Ch. 1, App. 3-A, provides:\\nA lawyer shall not: .\\n(d) engage in conduct intended to disrupt a tribunal.\\n. Rule 4.4, ORPC, 5 O.S.1991, Ch. 1, App. 3-A, provides:\\nIn representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.\\n. Rule 8.1(b), ORPC, 5 O.S.1991, Ch. 1, App. 3-A, provides in relevant part:\\n[A] lawyer . in connection with a disciplinary matter, shall not: .\\n(b)fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.\\n. Rule 8.4(a)-(d), ORPC, 5 O.S.1991, Ch. 1, App. 3-A, provide:\\nIt is professional misconduct for a lawyer to:\\n(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts'of another;\\n(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;\\n(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;\\n(d)engage in conduct that is prejudicial to the administration of justice[.]\\n. In addition to other violations, count IV also charged violation of Rule 3.4(d), ORPC (failure to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party). Although the allegations of count IV are deemed admitted by respondent's failure to file a formal answer or response to the amended complaint, in its brief submitted to this Court complainant appears to concede no violation of Rule 3.4(d) was committed by respondent, or, at least, shown to have been committed by him, given the evidence presented at the trial panel hearing. See Complainant's Brief-In-Chief, July 19, 1999, pg. 24.\\n. Although conviction for driving a motor vehicle while under the influence of intoxicating liquor does not facially show a lawyer's unfitness to practice law [State ex rel. Oklahoma Bar Ass'n v. Armstrong, 1990 OK 9, 791 P.2d 815] \\\"[a] pattern of repealed offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.\\\" Rule 8.4, Comment, ORPC.\"}"

okla/11561761.json

@@ -0,0 +1 @@
+"{\"id\": \"11561761\", \"name\": \"BAYARD DRILLING, Own Risk, Petitioner, v. Ropha W. MARTIN II, and Workers' Compensation Court, Respondents\", \"name_abbreviation\": \"Bayard Drilling v. Martin\", \"decision_date\": \"1999-05-25\", \"docket_number\": \"No. 92,438\", \"first_page\": \"530\", \"last_page\": \"532\", \"citations\": \"986 P.2d 530\", \"volume\": \"986\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Oklahoma Court of Civil Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T23:17:30.931603+00:00\", \"provenance\": \"CAP\", \"judges\": \"BOUDREAU, V.C.J., and STUBBLEFIELD, P.J, concur.\", \"parties\": \"BAYARD DRILLING, Own Risk, Petitioner, v. Ropha W. MARTIN II, and Workers\\u2019 Compensation Court, Respondents.\", \"head_matter\": \"1999 OK CIV APP 67\\nBAYARD DRILLING, Own Risk, Petitioner, v. Ropha W. MARTIN II, and Workers\\u2019 Compensation Court, Respondents.\\nNo. 92,438.\\nCourt of Civil Appeals of Oklahoma, Division 2.\\nMay 25, 1999.\\nCynthia Wood Welch, John S. Oldfield, Jr., Oldfield & Coker, Oklahoma City, Oklahoma for Petitioner.\\nKenneth L. Wood, Boettcher, Ryan & Martin, Oklahoma City, Oklahoma, for Respondent.\", \"word_count\": \"1132\", \"char_count\": \"6968\", \"text\": \"REIF, J.\\n\\u00b6 1 Own risk employer Bayard Drilling seeks review of the three-judge panel's order that affirmed an award of medical benefits to claimant Ropha Martin II. There was no controversy that Mr. Martin hurt his right hand while working on a Bayard drilling rig. Bayard has contested its liability, however, on the ground that Mr. Martin was intoxicated and impaired from drug use at the time of the injury. There was no dispute that a drug screen sample taken from Mr. Martin shortly after the injury tested positive for Delta-9THC-CA (marijuana), Benzoylecgonine/Co-eaine metabolite and Amphetamine/Metham phetamine. The trial court ruled that the results of the drug screen justified Bayard in terminating Mr. Martin from the light duty assignment he was provided after the injury and before the drug test results were received. The court also held that this loss of light duty relieved Bayard from paying temporary total disability. The trial court further ruled, however, that the drug test results did not prove that Mr. Martin was impaired to the degree specified in the statutory intoxication defense.\\n\\u00b6 2 Bayard has challenged the conclusion concerning impairment before the three-judge panel and here on review based on the uncontroverted opinion of the medical expert who interpreted Mr. Martin's test results. The medical expert concluded that the levels of the drugs found did impair Mr. Martin's ability to work. Bayard has propounded that drug impairment is a medical condition involving a question of science and that any ruling by the workers' compensation court on that question must be based on expert evidence. Bayard argues that the only expert evidence on the question of drug impairment supported the single conclusion that Mr. Martin was impaired, and that no expert evidence supports the contrary conclusion reached by the trial court and affirmed by the three-judge panel.\\n\\u00b6 3 The statutory \\\"intoxieation/impairment defense\\\" excludes coverage for \\\"[a]n injury resulting directly from the use or abuse of alcohol, illegal drugs or chemicals, or the abuse of prescription drugs . when the use or abuse rendered the employee incapable of acting in the manner in which an ordinarily prudent and cautious person, in full possession of his or her faculties, and using reasonable care, would have acted at the time of the injury.\\\" 85 O.S. Supp.1998 \\u00a7 11(A)(3). This statutory provision expressly authorizes the admission of post-accident alcohol or drug testing results into evidence.\\n\\u00b6 4 The legislature has clearly recognized that scientific alcohol and drug testing is an important evidentiary means for proving alcohol or drug impairment that would exclude workers' compensation coverage. However, the legislature did not make scientific evidence the only means by which an employer can prove the requisite impairment or by which the employee can avoid the application of the statutory defense. We believe that if the legislature had intended scientific testing of samples from an accountable individual like an employee to have some special weight or effect, the legislature would have prescribed testing and accorded the results some presumptive effect as it did for accountable individuals like licensed drivers in cases of suspected impaired operation of a motor vehicle. 47 O.S. Supp.1998 \\u00a7 751 through 761.\\n\\u00b6 5 Instead, the legislature has adopted a \\\"reasonable care\\\" standard for judging impairment based on how \\\"an ordinarily prudent and cautious person in full possession of his or her faculties\\\" would act while working at the time of the injury. In adopting this standard, we believe the legislature intended that the question of impairment to be decided \\\"objectively\\\" on the basis of all the surrounding circumstances and evidence bearing on an employee's condition and ability to work, including lay testimony. It has long been recognized in Oklahoma that the proof of the fact of intoxication or sobriety does not require special knowledge, and need not be made by expert testimony. See Whittmore v. State, 1987 OK CR 192, \\u00b6 7, 742 P.2d 1154, 1157, Templeton v. State, 1956 OK CR 13, 293 P.2d 636 (syllabus 1), and Butler v. State, 34 Okla.Crim. 239, 245 P. 1004 (1926) (syllabus 1).\\n\\u00b6 6 In the instant case, the opinion of the medical expert who interpreted the results of Mr. Martin's drug screen was certainly probative of impairment on the part of Mr. Martin. However, \\\"[wjeight and credibility of expert testimony is exclusively for determination [by] the trier of facts.\\\" City of Nichols Hills v. Hill, 1975 OK 39, \\u00b6 28, 534 P.2d 931, 935 (citation omitted). In particular, \\\"[p]robative value of medical evidence is for [the Workers' Compensation] Court, which may accept all or part of such evidence, or reject this evidence entirely.\\\" Id.\\n\\u00b6 7 It has also long been recognized that the workers' compensation court \\\"is not compelled to accord credence to the greater amount of evidence as against the lesser . but may consider the record in totality.\\\" Pearl v. Associated Milk Producers, Inc., 1978 OK 105, \\u00b6 11, 581 P.2d 894, 896 (citations omitted). The workers' compensation trial court and three-judge panel were entitled to give credence and weight to Mr. Martin's lay testimony that (1) he had not taken any drugs or smoked anything on the day he was injured, (2) he was not impaired or under the influence, (3) he had contact with and had talked to his supervisor and coworkers before starting work and was not taken off duty, (4) he had worked three and one-half to four hours without any incidents or problems, and (5) the cause of the accident was the drilling rig \\\"running a little bit too fast\\n. and the driller (operator) couldn't stop and so the elevators hit the top of [Mr. Martin's] hand.\\\"\\n\\u00b6 8 \\\"On appeal from a three judge panel of the Workers' Compensation Court, the appellate court is limited to canvassing the record to determine if there is any competent evidence to s\\u00fcpport the panel's decision.\\\" Owings v. Pool Well Service, 1992 OK 159, \\u00b6 8, 843 P.2d 380, 383 (footnote omitted). \\\"A decision of the three judge review panel of the Workers' Compensation Court may not be reversed on appeal if it is supported by any competent evidence.\\\" Id. In the instant case, Mr. Martin's lay testimony was sufficient competent evidence to support the award of medical benefits and to deny employer's intoxication/ impairment defense, the expert evidence of employer notwithstanding. Accordingly, the award of medical benefits to claimant Ropha Martin II is SUSTAINED.\\nBOUDREAU, V.C.J., and STUBBLEFIELD, P.J, concur.\"}"

okla/12340219.json

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+"{\"id\": \"12340219\", \"name\": \"Dr. Margaret STRIPLING, D.O., Plaintiff/Appellant/Counter-Appellee, v. STATE of Oklahoma EX REL. OKLAHOMA HEALTH CARE AUTHORITY, Defendant/Appellee/Counter-Appellant\", \"name_abbreviation\": \"Stripling v. State ex rel. Oklahoma Health Care Authority\", \"decision_date\": \"2016-12-22\", \"docket_number\": \"Case No: 114,164\", \"first_page\": \"293\", \"last_page\": \"299\", \"citations\": \"394 P.3d 293\", \"volume\": \"394\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Oklahoma Court of Civil Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T02:30:40.572946+00:00\", \"provenance\": \"CAP\", \"judges\": \"GOODMAN, C. J., and WISEMAN, P.J., concur.\", \"parties\": \"Dr. Margaret STRIPLING, D.O., Plaintiff/Appellant/Counter-Appellee, v. STATE of Oklahoma EX REL. OKLAHOMA HEALTH CARE AUTHORITY, Defendant/Appellee/Counter-Appellant.\", \"head_matter\": \"2017 OK CIV APP 6\\nDr. Margaret STRIPLING, D.O., Plaintiff/Appellant/Counter-Appellee, v. STATE of Oklahoma EX REL. OKLAHOMA HEALTH CARE AUTHORITY, Defendant/Appellee/Counter-Appellant.\\nCase No: 114,164\\nCourt of Civil Appeals of Oklahoma, Division No. 4.\\nFiled: 12/22/2016\\nMandate Issued: 01/24/2017\\nBob L. Latham, Jr., Lance Freije, Brandy L. Inman, LATHAM WAGNER STEELE & LEHMAN, P.C., Tulsa, Oklahoma, for Plain-tiffiAppellant:\\nJoseph H. Young, Jeremiah L. Streck, DEPUTY GENERAL COUNSEL OKLAHOMA HEALTH CARE AUTHORITY, Oklahoma City, Oklahoma, for Defendant/Appellee.\", \"word_count\": \"3027\", \"char_count\": \"18701\", \"text\": \"JOHN F. FISCHER, JUDGE:\\n\\u00b6 1 Dr. Margaret Stripling appeals the district court's order dismissing with prejudice her Petition for Review seeking review of the Oklahoma Health Care Authority's decision to terminate her SoonerCare provider contract. In its counter-appeal, the Authority asserts that the district court lacked jurisdiction because Stripling failed to timely file her petition. Both appeals result from the district court's disposition of the Authority's motion to dismiss Stripling's appeal. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing. The district court denied the Authority's motion seeking dismissal on jurisdictional grounds, and that aspect of the district court's order is affirmed. The district court granted the Authority's motion to dismiss pursuant to 12 O.S.2011 \\u00a7 2012(B)(6), based on its finding that Stripling's petition failed to state a claim on which relief could be granted. Because that ground is inapplicable to the judicial review procedure required by 12 O.S.2011 \\u00a7 951, this case must be remanded' for further consideration of Stripling's appeal.\\nBACKGROUND\\n\\u00b6 2 Stripling provided healthcare services to SoonerCare members pursuant to a contract with the Authority. The Authority employed Telligen, an independent contractor, to conduct medical reviews and audits of its SoonerCare providers, including Stripling. Telligen reported various deficiencies concerning Stripling's practice and a Corrective Action Plan was implemented to address those issues. Ultimately, Telligen determined that Stripling had failed to sufficiently correct the deficiencies it had identified and recommended termination of Stripling's contract. The Authority accepted Telligen's recommendation and terminated Stripling's provider contract,\\n\\u00b63-Stripling requested a hearing before the Authority's Contract Suspension/Termination Panel. The Panel conducted a hearing and found that Stripling had failed to provide a \\\"reasonable standard of care\\\" and failed to \\\"maintain adequate medical records.\\\" The Panel concluded that \\\"termination of Dr. Stripling's Medicaid contract best meets the ends of justice and safeguards the welfare of SoonerCare members.\\\"\\n\\u00b64 Stripling filed a timely appeal of the Panel's decision in the district court of Tulsa County. The Authority entered a special appearance and filed a motion to dismiss, arguing that venue was improper and that Stripling's petition failed to state a claim on which relief could be granted. The Tulsa County district court entered an order on March 2, 2015, which pi'ovided, in relevant part:\\nVenue is improper in Tulsa County. This action is ordered transferred to Oklahoma County. Failure of plaintiff to tender filing fees there within 30 days will result in dismissal of this action.\\n\\u00b6 5 Within thirty days of that order, Stripling filed a second Petition for Review in Oklahoma County and paid the necessary filing fees. The Authority again filed a motion to dismiss. The Authority first argued that by filing a new action rather than transferring the original action in compliance with 12 O.S.2011 \\u00a7 140.1, Stripling had chosen to \\\"abandon\\\" and \\\"sever[ ] critical ties to\\\" her original petition. Further, the Authority argued that, because the Oklahoma County petition was not filed within thirty days after the Panel's contract termination decision, the district court no longer had jurisdiction to hear her case. For its second, alternative ground for dismissal, the Authority relied on 12 O.S.2011 \\u00a7 2012(B)(6), and argued that Stripling's petition failed to state a claim on which relief could be granted. The district court denied the Authority's motion on the alleged jurisdictional ground. But, based on its finding that Stripling's petition failed to state a claim for violation of her right to due process in the contract termination proceeding, the district court granted the Authority's motion pursuant to section- 2012(B)(6) and dismissed Stripling's petition with prejudice. Both parties appeal their respective adverse district court rulings.\\nSTANDARD OF REVIEW\\n\\u00b6 6 District court review of the Authority's decision is authorized by 12 O.S. 2011 \\u00a7 951(a): \\\"A judgment rendered, or final order made, by any tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court except where an appeal to some other court is provided by law.\\\" Section 951 \\\"does not provide for a trial de novo by the district court.\\\" In re White, 1960 OK 188, \\u00b6 8, 355 P.2d 404; City of Sand Springs v. Colliver, 1967 OK 194, \\u00b6 0, 434 P.2d 186 (Syllabus 2) (overruled in part by O'Rourke v. City of Tulsa, 1969 OK 112, 457 P.2d 782).\\n[A]n appeal under Sec. 951 is perfected by filing in the district court a full and complete transcript of the proceedings had before' the \\\"tribunal, board or officer exercising judicial functions,\\\" including a transcript of the evidence.... [T]he district court sits as an appeal tribunal and its jurisdiction is limited to the consideration of the transcript and the argument of the respective attorneys thereon.\\nWhite, 1960 OK 188, \\u00b6 8, 355 P.2d 404. \\\"The district court, in the exercise of its appellate jurisdiction pursuant to . \\u00a7 951, is limited to considering whether the decision being reviewed should be reversed, vacated or modified.\\\" Tuttle v. Pilant, 1994 OK 141, \\u00b6 0, 890 P.2d 874 (Syllabus by the Court). The district court may not request or consider evidence not contained in the agency record. Id. \\u00b6 11. \\\"The proper standard of review for the district court in such cases is whether errors of law were committed by the [agency], and whether the [agency's] findings are supported by the clear weight of the evidence.\\\" City of Muskogee v. Grayson, 1991 OK 101, 8, 818 P.2d 491.\\nAlthough previous ease law has not precisely stated the standard of review applied by the appellate court to the appeal of a district court decision 'rendered pursuant to section 951, we will apply the same standard of review applied by the district court in its review of the Authority's decision. See White, 1960 OK 188, \\u00b6 0, 355 P.2d 404 (Syllabus 3) (affirming the agency's decision finding, after an examination of the transcript of the proceedings, that it was not contrary to law or the clear weight of the evidence but holding the district court abused its discretion in modifying the decision). See also Grayson, 1991 OK 101, \\u00b6 18-19, 818 P.2d 491 (affirming the district court's appellate ruling finding the agency's decision was contrary to law); Burdick v. Indep. Sch. Dist. No. 52 of Oklahoma County, 1985 OK 49, 702 P.2d 48 (affirming the district court's appellate ruling as supported by the clear weight of the evidence). This is essentially the same standard of review used by the appellate court in reviewing the district court's decision in an appeal of an agency decision pursuant to Article II of the Administrative Procedures Act. See 75 O.S.2011 \\u00a7 308a to 323; City of Hugo v. State ex rel. Pub. Emps. Relations Bd., 1994 OK 134, 886 P.2d 485.\\nANALYSIS\\n\\u00b6 7 Two issues are presented by the parties' counter-appeals in this case.\\nI. The Authority's Appeal\\n\\u00b6 8 The Authority argues that the district court erred in failing to grant its motion to dismiss on the basis that Stripling's appeal was filed out of time. The Authority correctly notes that the thirty-day time period specified in section 951(b) for appealing a final agency order to the district court is jurisdictional. See 12 Okl.St.Ann.2011 \\u00a7 951, Oklahoma Comment to 1998 Revision (West 2015) (noting the addition of paragraph \\\"b\\\" to provide a previously unspecified deadline for filing an appeal). Cf., 75 O.S.2011 \\u00a7 318, and Conoco, Inc. v. State Dep't of Health, 1982 OK 94, \\u00b6 11, 651 P.2d 125 (thirty-day time limit for filing an appeal pursuant to the Administrative Procedures Act is jurisdictional), The Authority concedes that Stripling's original appeal was timely filed in the district court for Tulsa County. Its argument relies on the fact that Stripling filed a new case in Oklahoma County rather than following the procedure for transferring her existing case from Tulsa County as ordered by the Tulsa County district court. It is, however, undisputed that Stripling filed her Oklahoma County ease and paid the required filing fees within the thirty-day period specified by the Tulsa County district court. The Authority's argument, therefore, privileges form over substance.\\n\\u00b6 9 This Court and the district court are required to consider a pleading as its substance dictates, regardless of the name assigned by the filer. \\\"The meaning and effect of an instrument filed in court, depends on its contents and substance rather than on form or title given it by the author.\\\" Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, \\u00b6 4, 681 P.2d 757. Stripling's Oklahoma County petition asserts the same claims and is virtually identical to her Tulsa County petition for review. The district court properly treated Stripling's Oklahoma County petition as a transfer of her Tulsa County case. The Authority recognizes that its jurisdictional argument fails if Stripling's Tulsa County case was effectively transferred to Oklahoma County. The district court's order denying the Authority's motion to dismiss on jurisdictional grounds is affirmed.\\nII. Stripling's Appeal\\n\\u00b6 10 Even though the district court denied the Authority's motion to dismiss, in part, it granted the Authority's motion pursuant to 12 O.S.2011 \\u00a7 2012(B)(6), finding that Stripling's petition failed to state a claim on which relief could be granted. Although the procedure applicable to appeals filed pursuant to section 961 is not well developed, we can look to 'other sources of appellate procedure in the absence of a specific procedural directive. See Civil Serv. Comm'n of City of Tulsa v. Gresham, 1982 OK 125, \\u00b6 22, 653 P.2d 920 (applying \\\"decisional law\\\" in the absence of \\\"statutory specificity\\\" to determine the sufficiency of findings of fact for appellate review). We find that section 2012(B)(6) was unavailable to the Authority.\\n\\u00b6 11 First, section 2012(B)(6) is part of the Oklahoma Pleading Code, 12 O.S.2011 \\u00a7 2001 through 2056. \\\"The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature.... \\\" This is an appeal of an administrative agency order invoking the district court's appellate jurisdiction pursuant to 12 O.S.2011 \\u00a7 951. With respect to those appeals, \\\"the district court sits as an appeal tribunal and its jurisdiction is limited to the consideration of the transcript [of the agency proceeding] and the argument of the respective attorneys thereon.\\\" In re White, 1960 OK 188, \\u00b6 8, 355 P.2d 404. Other than the petition, no other pleadings are specifically authorized. See 12 O.S.2011 \\u00a7 961(b). Cf., 75 O.S.2011 \\u00a7 318 and 321 (authorizing only the filing of a petition and briefs in an appeal conducted pursuant to the Administrative Procedures Act).\\n\\u00b6 12 Second, the Oklahoma Supreme Court Rules can provide guidance when addressing the proper appellate procedure employed in section 951 appeals, where that procedure is not otherwise provided by statute or case law. The Oklahoma Supreme Court Rules \\\"have application\\\" to \\\"review from decisions of [lower] tribunals,\\\" like those of the Authority when appealed to the district court. Okla. Sup. Ct. R. 1.1(b), 12 O.S. Supp. 2013, ch. 15, app. 1. In this Court, those rules govern the review of the agency order. Id. It would be unorthodox, if not unconstitutional, for the district court to apply one set of appellate procedures and this Court to apply a different set of appellate procedures in reviewing the same agency order. See City of Tulsa v. Bd. of Trustees of Police Pension and Ret. Sys., 1963 OK 267, \\u00b6 8, 387 P.2d 255 (quoting Kearney County v. Hapeman, 102 Neb. 550, 167 N.W. 792 (Neb. 1918), for the proposition that the law requires that appeals be decided \\\"'on equal terms and without discrimination' \\\").\\n\\u00b6 13 The Supreme Court Rules provide that a party may move to dismiss an appeal, but the grounds for' such motions are limited. \\\"An alleged absence of substantive merit will not be regarded by the Court as grounds for dismissal on motion but may be raised in the brief of a party for consideration at the decisional stage.\\\" Okla. Sup. Ct. R. 1.6(c)(1), 12 O.S. Supp. 2013, ch. 15, app. 1. The Authority's motion to dismiss addressed Stripling's substantive ability to state a claim for relief; it was not predicated on one of the grounds authorized by Rule 1.6. Further, the Authority's motion and Stripling's response attached certain documents. It cannot be de-tennined from this record whether those documents are contained in or are in addition to the \\\"record\\\" before the Authority and its Contract Review Panel. Permitting use of district court motion practice to supplement the record in the district court is prohibited. Tuttle v. Pilant, 1994 OK 141, \\u00b6 11, 890 P.2d 874. We find support for this conclusion in Dewey v. State ex rel. Okla. Firefighters Pension & Ret. Sys., 2001 OK 40, 28 P.3d 539 (district court lacks authority in an appeal from an administrative agency to re-open the proceedings for enforcement purposes), and Ricks Exploration v. Okla. Water Res. Bd., 1984 OK 73, 695 P.2d 498 (district court may not consider issues not before the agency). District court procedure would, arguably, permit supplementation of the agency record. See 12 O.S.2011 \\u00a7 1031 (permitting the district court to modify its judgments); 12 O.S. 2011 \\u00a7 2015 (permitting the amendment of pleadings in the district court). See also State v. One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, \\u00b6 23, 131 P.3d 116 (footnotes omitted) (recognizing the statutory and \\\"jurisprudential\\\" prohibitions against use of summary process in juvenile, parental termination and judgment vacation proceedings); Patterson v. Beall, 2000 OK 92, \\u00b6 26, 19 P.3d 839 (holding that use of summary judgment process is inconsistent with and inapplicable to the legislative scheme establishing district court small claims procedure). Here, the Authority's motion to dismiss transformed this appeal into a \\\"summary process\\\" not author-iz\\u00e9d by 12 O.S.2011 \\u00a7 951. Consequently, we find that section 2012(B)(6) of the Oklahoma Pleading Code is unavailable to a party in an appeal of an agency order to the district court pursuant to section 951.\\n\\u00b6 14 Despite the lack of appellate procedural certainty, the jurisdiction of the district court when reviewing an agency order pursuant to 12 O.S.2011 \\u00a7 951, is well established. The district court \\\"is limited to considering whether the decision being reviewed should be reversed, vacated or modified.\\\" Tuttle v. Pilant, 1994 OK 141, \\u00b6 11, 890 P.2d 874. Stripling's Petition for Review asserts several errors purportedly committed by the Panel and justifying reversal of the Authority's decision to terminate Stripling's SoonerCare contract. The Authority's motion to dismiss addressed only one of those issues, the alleged denial of due process. Further, because this appeal was treated as the review of a motion to dismiss, it was assigned to this Court pursuant to Oklahoma Supreme Court Rule 1.36. As a consequence, this Court did not have the benefit of appellate briefs concerning the merits- of Stripling's appeal, to the extent the district court might have entertained such submissions. Because the Authority inserted \\\"civil procedure\\\" into this proceeding rather than relying on \\\"appellate procedure\\\" to test the merits of Stripling's appeal, the district court did not review the Panel's decision pursuant to its appellate jurisdiction granted in 12 O.S.2011 \\u00a7 951.\\n\\u00b6 15 Consequently, there is, in this record, no determination by the district court \\\"whether errors of law were committed\\\" by the Panel or whether the Panel's findings \\\"are supported by the clear weight of the evidence.\\\" City of Muskogee v. Grayson, 1991 OK 101, \\u00b6 8, 818 P.2d 491. '\\\"[I]t is not the duty of the appellate court on review to make first instance determinations of disputed law or fact issues.\\\" Evers v. FSF Overlake Assocs., 2003 OK 53, \\u00b6 18, 77 P.3d 581. That is the rule \\\"in every case \\u2014 whether in law, equity or on appeal from an administrative body.\\\" Bivins v. State ex rel. Okla. Mem'l Hosp., 1996 OK 5, \\u00b6 19, 917 P.2d 456. Consequently, we are unable to review the district court's order to determine whether it erred in denying Stripling any relief from the Panel's Order.\\nCONCLUSION\\n\\u00b6 16 The order denying the Authority's motion to dismiss Stripling's appeal based on the asserted untimely filing is affirmed. The order dismissing Stripling's appeal for failure to state a claim is reversed, and Stripling's appeal will proceed on remand pursuant to 12 O.S.2011 \\u00a7 951 and this Opinion.\\n\\u00b6 17 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.\\nGOODMAN, C. J., and WISEMAN, P.J., concur.\\n. Even if we were to treat Stripling's Oklahoma County filing as instituting a new lawsuit, as the Authority argues, the Authority would not necessarily prevail. The district court has original jurisdiction over constitutional claims like those asserted by Stripling against a State agency. State ex rel. Bd. of Regents of Univ. of Okla. v. Lucas, 2013 OK. 14, \\u00b6 32, 297 P.3d 378 (citing Bowen v. State ex rel. Okla. Real Estate Appraiser Bd., 2011 OK 86, \\u00b6 12, 270 P.3d 133); Lincoln Bank and Trust Co. v. Okla. Tax Comm'n, 1992 OK 22, \\u00b6 8, 827 P.2d 1314 (citing Okla. Const. art. 7, \\u00a7 7).\\n. In appeals pursuant to the Administrative Procedures Act, appellate briefs are specifically permitted. \\\"The court, upon request, shall hear oral argument and receive written briefs.\\\" 75 O.S. 2011 \\u00a7 321. There is nothing in the statutory language of section 951, or the case law describing the procedure for appeals pursuant to that statute, that is inconsistent with, or would preclude, the district court from accepting and considering briefs.\"}"

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+"{\"id\": \"12575961\", \"name\": \"DOBSON TELEPHONE COMPANY, Appellant, v. STATE of Oklahoma EX REL. OKLAHOMA CORPORATION COMMISSION, Appellee.\", \"name_abbreviation\": \"Dobson Telephone Company v. State ex rel. Oklahoma Corporation Commission\", \"decision_date\": \"2019-04-16\", \"docket_number\": \"Case No. 116,422\", \"first_page\": \"147\", \"last_page\": \"155\", \"citations\": \"441 P.3d 147\", \"volume\": \"441\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-27T21:04:26.222318+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"DOBSON TELEPHONE COMPANY, Appellant,\\nv.\\nSTATE of Oklahoma EX REL. OKLAHOMA CORPORATION COMMISSION, Appellee.\", \"head_matter\": \"DOBSON TELEPHONE COMPANY, Appellant,\\nv.\\nSTATE of Oklahoma EX REL. OKLAHOMA CORPORATION COMMISSION, Appellee.\\nCase No. 116,422\\nSupreme Court of Oklahoma.\\nFILED APRIL 16, 2019\\nWilliam H. Hoch, Melanie Wilson Rughani, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, and Ron Commingdeer, Kendall W. Parrish, Ron Commingdeer & Associates, Oklahoma City, Oklahoma, for Appellant.\\nMichele Craig, Deputy General Counsel, Oklahoma Corporation Commission, Oklahoma City, Oklahoma, for Appellee.\\nNancy M. Thompson, Oklahoma City, Oklahoma, for Sprint Communications Company, L.P., Sprint Spectrum L.P. and Virgin Mobile USA, L.P.\", \"word_count\": \"4841\", \"char_count\": \"31362\", \"text\": \"WINCHESTER, J.,\\n\\u00b61 The issue before this Court is whether the Oklahoma Corporation Commission (\\\"the Commission\\\") erroneously withheld funding to be provided to Dobson Telephone Company (\\\"Dobson\\\") pursuant to the provisions of the Oklahoma Universal Service Fund (\\\"OUSF\\\"), 17 O.S.Supp.2016, \\u00a7 139.106. For the reasons set forth herein, we find that Dobson is entitled to the requested funding.\\nSTATUTORY BACKGROUND\\n\\u00b62 In 1996, the U.S. Congress passed the federal Telecommunications Act, 47 U.S.C. \\u00a7 151 et seq ., in part, to promote a policy of universal service that would provide telecommunication services to consumers all over the country, including \\\"those in rural, insular, and high cost areas.\\\" The Act seeks to provide access to services that are \\\"reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas.\\\" 47 U.S.C. \\u00a7 254(b)(3). The Oklahoma Legislature followed suit with its own, complementary Oklahoma Telecommunications Act of 1997 (the \\\"Act\\\"). 17 O.S.2011 and Supp.2016, \\u00a7 139.101 et seq .\\n\\u00b63 Under the state and federal Acts, certain telecommunications providers known as \\\"carriers of last resort\\\" are required to provide, without discrimination, telephone service to any customer requesting it. See 47 U.S.C. \\u00a7 201 ; 17 O.S.2011 and Supp.2016, \\u00a7 136 and 138. In addition, the provider must offer the requested services at reasonable and affordable rates in line with those offered in more urban areas even if serving such customers would not be economically sustainable. See 47 U.S.C. \\u00a7 202 ; 47 U.S.C. \\u00a7 254(b)(3), (g), (i). The purpose of the legislation was to provide affordable and quality primary universal services to all despite the challenges of its accessibility.\\n\\u00b64 In an effort to defray the costs of delivering phone service in rural, more remote areas, the federal and state Acts each established a fund to help support eligible service providers. Within Oklahoma's Act, the Legislature created the OUSF to help pay for reasonable investments and expenses incurred by \\\"eligible local exchange telecommunications service providers\\\" in providing primary universal services to customers in rural and high-cost areas \\\"at rates that are reasonable and affordable.\\\" See 17 O.S.Supp.2016, \\u00a7 139.106 (A), (B), and (G). The OUSF generally provides that an eligible provider \\\"may request funding from the OUSF as necessary to maintain rates for primary universal services that are reasonable and affordable.\\\" 17 O.S.Supp.2016, \\u00a7 139.106 (G). The OUSF is funded by a charge paid by certain telecommunications carriers that have revenues as defined in Section 139.107. See 17 O.S.Supp.2016, \\u00a7 139.106 (D) and 139.107.\\n\\u00b65 The Commission's rules governing the process for obtaining funding from the OUSF are set out in OAC 165:59, Part 9 and are overseen by the Administrator of the Commission's Public Utilities Division (\\\"PUD\\\"). Under the rules, upon receipt of a request for OUSF funding, the OUSF Administrator reviews the request and, if appropriate, reimburses the provider consistent with the Act. OAC 165:59-7-1(d) and OAC 165:59-3-62(g). Requests for Subsection (G)'s \\\"as necessary\\\" distributions are evaluated through a detailed study and analysis of the \\\"costs of providing primary universal services\\\" as well as potential revenue. 17 O.S.Supp.2016, \\u00a7 139.106 (H). The review process for claims submitted under Subsection (G) can be time-consuming and tedious, often resulting in a significant delay in receipt of any funds. As a result, the Legislature provided a mechanism within the Act that would allow providers in the rural areas quicker access to mandatory payments in certain, limited circumstances. See 17 O.S.Supp.2016, \\u00a7 139.106(K).\\n\\u00b66 Subsection (K)(1)(a) mandates that, if \\\"a Federal Communications Commission order, rule or policy\\\" has the effect of \\\"decreas[ing] the federal universal service fund revenues of an eligible local exchange telecommunications service provider,\\\" that provider \\\"shall recover the decreases in revenues from the OUSF.\\\" 17 O.S.Supp.2016, \\u00a7 139.106 (K)(1)(a). Similarly, Subsection (K)(1)(b) provides that, if changes required by \\\"federal or state regulatory rules, orders, or policies\\\" reduce the revenues or increase the costs to an eligible local exchange telecommunications service provider, then that provider \\\"shall recover the revenue reductions or cost increases from the OUSF.\\\" 17 O.S.Supp.2016, \\u00a7 139.106 (K)(1)(b). Under Subsection (K), distributions from the OUSF \\\"shall not be conditioned upon any rate case or earnings investigation by the Commission,\\\" but, instead, should be paid in an amount equal to the increase in costs or reduction in revenues. 17 O.S.Supp.2016, \\u00a7 139.106 (K)(2).\\n\\u00b67 The Commissioners are free to approve or reject any determination by the OUSF Administrator. Under the rules, if no one objects to the Administrator's determination, an order approving the funding request is issued by the Commission. OAC 165:59-3-62(j). If, however, a party is not satisfied with the OUSF Administrator's determination, the party may file a request for reconsideration by the Commission and the matter is set for hearing. OAC 165:59-3-62(h) and (i). The Commission is the ultimate arbiter of the issues. See, Cameron v. Corporation Com'n, 1966 OK 75, \\u00b6 29, 414 P.2d 266, 272 (on appeal from an oil and gas spacing order, the Court noted that regardless of whatever weight the Commission may attach to an examiner's report, \\\"the Commission is the final arbiter of the issues\\\"). See also , State ex rel. Cartwright v. Southwestern Bell Telephone Co., 1983 OK 40, \\u00b6 32, 662 P.2d 675, 681 (quoting Cameron ).\\n\\u00b68 The Commission, by a 2-1 vote, denied reimbursement. Commissioner Dana Murphy, dissenting in each of these companion cases, has stated that although she may not agree with the need for the fund, she feels she must uphold the Legislature's will as long as the fund exists. She dissented to the denial of Medicine Park's request stating that because she didn't believe the majority decision \\\"comports with the Oklahoma Legislature's intent to, in part, provide support to small, rural carriers who have experienced increases in costs as a result of changes required by governmental acts and with the Legislative policy to preserve and advance universal services.\\\"\\n\\u00b69 In 2014, the Commission denied a request for OUSF funding from Dobson Telephone Company. See Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, 392 P.3d 295. Dobson sought reimbursement, under Subsection (K)(1)(b) of the OUSF, for costs incurred to relocate its telephone facilities as required by the city of Oklahoma City for a street-widening project. Because the request had been issued by the city, and not the county commission or ODOT, the Commission narrowly interpreted the statute and concluded that the Fund was not authorized to pay for such relocation costs.\\n\\u00b610 The Court of Civil Appeals found that the Commission's interpretation of the statutory language defeats the purpose of the Fund and is contra to the legislative intent to defray increased costs incurred by eligible telecommunications service providers resulting from government action, no matter the originating government entity. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, \\u00b6 21, 392 P.3d 295, 305. The Commission's Order was vacated and the matter was remanded for further proceedings consistent with the Court of Civil Appeals opinion. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, \\u00b6 23, 392 P.3d 295, 305. This Court approved the case for publication.\\nFACTUAL BACKGROUND\\n\\u00b611 Dobson provides telecommunications services to customers in rural areas of Oklahoma, serving fewer than 75,000 access lines. On September 30, 2014, the Oklahoma Department of Transportation (ODOT) sent a letter to Dobson ordering the relocation of certain telephone lines within a public right-of-way of an ODOT, highway construction project on State Highway 33, in Roger Mills County. Dobson moved the lines as requested for a net total of $29,166.55, after accounting for limited ODOT funding in the amount of $4,761. Dobson then filed an application with the Commission, under Subsection (K)(1)(b), for reimbursement of this amount from the OUSF using a form created by the Commission and following the same process as other companies when seeking an OUSF refund.\\n\\u00b612 Dobson made detailed, confidential information regarding the project's costs available for inspection to the Commission's OUSF Administrator. This included information regarding the costs incurred, invoices for engineering, equipment and supplies, and internal employee timesheets and wages. The Administrator reviewed Dobson's application, inspected the confidential information and ultimately approved a reimbursement for Dobson in the amount of $28,817.23. It disallowed $349.32 due to a lack of supporting invoices.\\n\\u00b613 Various competitor telephone companies, collectively known as Sprint for purposes of this appeal, objected and filed a Request for Reconsideration on May 11, 2017. A hearing was held before an ALJ, where the evidence was briefed and summarized, additional testimony was taken, and the objecting parties were permitted to cross-examine witnesses-including the Administrator-and present evidence or argument to the contrary. The ALJ agreed that Dobson was an eligible provider, that the facilities in question were used in the provision of primary universal services, and that the expenses incurred by Dobson were as a result of a state government mandate. Despite the Administrator's recommendation, and her apparent agreement therewith, the ALJ indicated she was bound by recent Commission rulings in similar cases, made companions hereto, and recommended a denial of Dobson's request.\\n\\u00b614 Thereafter, the Commission voted, 2-1, to deny Dobson's request. The two-person majority found that Dobson's request was not sufficiently supported by evidence as the confidential information reviewed by its Administrator was not included in the record before the Commission. The Commission further determined that Dobson failed to prove that the expenditures at issue were necessary to provide primary universal services at a reasonable and affordable rate. Finally, the Commission stated that it was without sufficient information to determine whether the expenses were incurred only for primary universal services.\\n\\u00b615 Dobson appealed, requesting that the Commission's denial be reversed. We retained the matter and made it a companion to Case Nos. 115,453, 116,193, 116,194, 116,214, 116,215, and 116,421.\\nSTANDARD OF REVIEW\\n\\u00b616 This Court's review of decisions of the Commission is governed by the Oklahoma Constitution, article 9, \\u00a7 20, which states as follows, in relevant part:\\nThe Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence.\\nOkla. Const. art. 9, \\u00a7 20.\\n\\u00b617 The issue in this appeal concerns the Commission's legal interpretation of the OUSF statute and the alleged arbitrary and capricious denial of funding in violation of the Oklahoma Constitution. Constitutional implications as well as statutory interpretation dictate our de novo review of this case. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, \\u00b6 9, n.17, 164 P.3d 150, 156. Under the de novo standard of review, the Court has plenary, independent and non-deferential authority to determine whether the trial tribunal erred in its legal rulings. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, \\u00b6 9, n.16, 164 P.3d 150, 156 ; Neil Acquisition v. Wingrod Investment Corp., 1996 OK 125, \\u00b6 5, 932 P.2d 1100, 1103 ; Fanning v. Brown , 2004 OK 7, \\u00b6 8, 85 P.3d 841, 845.\\n\\u00b618 This Court has found that the Commission's power \\\"must be exercised only within the confines of its limited jurisdiction as provided by the Oklahoma Constitution\\\" and state statute. Pub. Serv. Co. v. State ex rel. Corp. Comm'n , 1997 OK 145, \\u00b6 23, 948 P.2d 713, 717. The Commission's \\\"power to regulate is not unfettered.\\\" Pub. Serv. Co. v. State ex rel. Corp. Comm'n , 1996 OK 43, \\u00b6 21, 918 P.2d 733, 738.\\nDISCUSSION\\n\\u00b619 Under the OUSF, eligible telecommunications providers serving fewer than 75,000 access lines are entitled to recover increases in costs as a result of changes to facilities that are required by state or federal law. 17 O.S.Supp.2016, \\u00a7 139.106(K). It is undisputed that Dobson is an eligible provider under the Act. It is further undisputed that Dobson was required by ODOT to relocate its lines, causing it to incur an increase in costs. The Act mandates that where changes are \\\"required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law,\\\" and such changes cause an eligible provider to experience an increase in costs, the provider \\\"shall recover \\\" such \\\"cost increases from the OUSF.\\\" 17 O.S.Supp.2016, \\u00a7 139.106(K)(1)(b) (emphasis added). We have interpreted the use of the word \\\"shall\\\" by the Legislature \\\"as a legislative mandate equivalent to the term 'must', requiring interpretation as a command.\\\" Minie v. Hudson, 1997 OK 26, \\u00b6 7, 934 P.2d 1082, 1086. Thus, under the express provisions of the Act, Dobson was entitled to receive reimbursement from the OUSF for these cost increases.\\n\\u00b620 In support of its decision to deny Dobson's requested funding, the Commission's majority found that Dobson failed to produce sufficient evidence into the record. Despite acknowledging that its \\\"Administrator was afforded, and took advantage of, the opportunity to perform a 'review of the Application, contractor's invoices, internal invoices, construction drawings, pre-engineering plans, work orders, plans and maps, timesheets, reimbursement checks, contracts, responses to data requests, relevant Oklahoma Statutes,' its own administrative rules regarding the OUSF,\\\" the Commission ignored the Administrator's finding that the documents provided by Dobson supported its request for funding. The Commission complained that it was limited to a mathematical review as many of the documents relied on, and reviewed by, the Administrator occurred on-site at Dobson's place of business and were not made publicly available due to the confidential nature of the documents.\\n\\u00b621 Dobson points out that up until the filing of these companion cases, the Commission had for years previously accepted the Administrator's review of confidential documents on site. Dobson maintains that they should not be penalized for the Commission's option not to take advantage of the opportunity to review, or even request to review, any of the confidentially-redacted documents. Dobson also cites cases supporting the proposition that long-standing actions or interpretations by an agency will not be idly cast aside without proper notice to affected parties. See, e.g., Oral Roberts Univ. v. Okla. Tax Comm'n , 1985 OK 97, \\u00b6 10, 714 P.2d 1013, 1015 (Courts are reluctant to overturn long standing construction where parties having great interest in such construction will be prejudiced by its change); Big Horn Coal Co. v. Temple , 793 F.2d 1165, 1169 (10th Cir. 1986) (\\\"Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departures.\\\").\\n\\u00b622 The Administrator agreed with Dobson that the standard procedure followed by the Commission had always been for an applicant to fill out a Commission-approved form and make confidential information supporting its application available for the Commission to review on-site. He offered that this practice occurred not only in OUSF cases, but in numerous other Commission matters. We find the Commission was not entitled to discount Dobson's entire application merely because the documents the Administrator inspected and relied upon for his approval were not publicly filed of record before the Commission.\\n\\u00b623 Dobson argues, and the Commission does not dispute, that the Commission's own rules and long-standing practices encouraged applicants to retain its confidential supporting materials on site, making such materials available for review and inspection as needed to support an application. In fact, Commission rule, OAC 165:59-3-72(d), specifically contemplates that \\\"documentation not contained in the public record and not filed in the cause\\\" may nevertheless be \\\"relied upon by the OUSF Administrator in approving or denying an application.\\\" The Administrator disclosed that the Commission does not even have procedures in place that would allow it to handle \\\"the responsibility or liability\\\" of receiving such confidential materials.\\n\\u00b624 Dobson filed an application, completed by using a Commission-issued form, which certified that as a result of an ODOT mandate to relocate its facilities it incurred an increase in costs in the amount of $29,166.55, after subtracting an ODOT reimbursement of $4761.00. The company presented the testimony of a company witness who reviewed all of Dobson's pertinent, confidential materials, and who confirmed the validity of the requested amounts. The Administrator also reviewed the confidential materials and agreed that Dobson's application and documentation supported the relief requested, as nominally modified by the Administrator to a lump sum of $28,817.23. The ALJ-although declining to recommend approval-likewise agreed with both the independent witness and the Administrator that Dobson's application and offered materials supported approval thereof. Despite these findings, the Commission unexpectedly faulted Dobson for failing to publicly submit its confidential materials when documents of such a nature have not been typically filed with the Commission, nor required. Such flawed reasoning should not support a denial of the application herein.\\n\\u00b625 Additionally, for the first time in these companion cases, the Commission interpreted Subsection (K) to impose a finding that Dobson's rates for primary universal services are reasonable and affordable pursuant to Subsection (B) and that the requested funding is necessary to maintain such reasonable and affordable rates. As mentioned, supra, \\u00a7 139.106(K)(1)(b) plainly provides that where a provider incurs increased costs due to a state law, order or policy, the provider SHALL recover the cost increase from the OUSF. See 17 O.S.Supp.2016, \\u00a7 139.106(K)(1)(b). There is no mention of a condition that the applicant must prove that its rates are reasonable and affordable nor is there a requirement to find the reimbursement necessary to maintain such rates. To the contrary, \\u00a7 139.106(K)(2) specifically states that an application's approval \\\"shall not be conditioned upon any rate case or earnings investigation by the Commission.\\\" 17 O.S.Supp.2016, \\u00a7 139.106(K)(1)(b). We are not inclined to add requirements to a statute that the Legislature chose not to impose. See Pentagon Acad., Inc. v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 2003 OK 98, \\u00b6 19, 82 P.3d 587, 591 (\\\"It is not the function of the courts to add new provisions which the legislature chose to withhold.\\\"); Minie v. Hudson , 1997 OK 26, \\u00b6 12, 934 P.2d 1082, 1087 (\\\"This Court may not, through the use of statutory construction, change, modify or amend the expressed intent of the Legislature.\\\").\\n\\u00b626 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose. Generally, applicants who filed under Subsection (K) could expect a quick reimbursement after approval by the Administrator that the application had followed the statutory process. The Commission's in-depth review of a Subsection (K) application would only arise if an outside entity filed a Request for Reconsideration of the Administrator's determination. Where no such reconsideration request is filed, the Administrator's approval, after a proper statutory review, would typically trigger a Commission order granting the applicant's request.\\n\\u00b627 The Commission also criticized the fact that the relocated lines were used for services not related to primary universal services. The Commission maintains that Dobson should have allocated the cost of the project between such services. Dobson argues that a request for reimbursement under Subsection (K) does not require any such cost allocation nor has the Commission ever required one in previous Subsection (K) matters.\\n\\u00b628 Subsection (K) plainly provides that where a provider incurs cost increases due to a state law or order, the provider SHALL recover the cost increase from the OUSF. 17 O.S.Supp.2016, \\u00a7 139.106(K)(1)(b). There is no mention of a requirement for cost allocation and we are not inclined to impose such requirement now. The Commission again ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose.\\n\\u00b629 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission majority's disapproval of the policy behind the OUSF legislation has no bearing on the validity of an applicant's request for funding. We agree with the dissenting Commissioner that it is our duty to uphold legislation as it is enacted.\\nCONCLUSION\\n\\u00b630 Although the Commission is not bound by the Administrator's recommendation, we find that the record reflects ample evidence with which to support the Administrator's determination. The Administrator, as well as the dissenting Commissioner, both agreed Dobson was entitled to reimbursement of the increased costs it incurred as a result of ODOT's mandate to relocate the telephone lines. The Commission's wholesale denial of Dobson's request was in error. Accordingly, we vacate the order of the Commission and remand the cause for further proceedings consistent with this opinion.\\nORDER OF THE OKLAHOMA CORPORATION COMMISSION VACATED AND REMANDED.\\nCONCUR: GURICH, C.J., KAUGER, WINCHESTER, EDMONDSON, and DARBY, JJ.\\nCONCURRING SPECIALLY (by separate writing): COMBS, J.\\nNOT PARTICIPATING: COLBERT, AND REIF, JJ.\\nSection 139.107 provides, in part:\\nA. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Universal Service Fund (OUSF) shall be funded in a competitively neutral manner not inconsistent with federal law by all contributing providers. The funding from each contributing provider shall be based on the total intrastate retail Oklahoma Voice over Internet Protocol (VoIP) revenues and intrastate telecommunications revenues, from both regulated and unregulated services, of the contributing provider, hereinafter referred to as assessed revenues, as a percentage of all assessed revenues of the contributing providers, or such other assessment methodology not inconsistent with federal law. VoIP services shall be assessed only as provided for in the decision of the Federal Communications Commission, FCC 10-185, released November 5, 2010, or such other assessment methodology that is not inconsistent with federal law. The Commission may after notice and hearing modify the contribution methodology for the OUSF and OLF, provided the new methodology is not inconsistent with federal law.\\nB. The Corporation Commission shall establish the OLF assessment and the OUSF assessment at a level sufficient to recover costs of administration and payments for OUSF and OLF requests for funding as provided for in the Oklahoma Telecommunications Act of 1997. The administration of the OLF and OUSF shall be provided by the Public Utility Division of the Commission. The administrative function shall be headed by the Administrator as defined in Section 139.102 of this title. The Administrator shall be an independent evaluator. The Administrator may enter into contracts to assist with the administration of the OLF and OUSF.\\n17 O.S.Supp.2016, \\u00a7 139.107. \\\"Contributing provider\\\" as that term is used in \\u00a7 139.107 means \\\"providers, including but not limited to providers of intrastate telecommunications, providers of intrastate telecommunications for a fee on a non-common-carrier basis, providers of wireless telephone service and providers of interconnected Voice over Internet Protocol (VoIP). Contributing providers shall contribute to the Oklahoma Universal Service Fund and Oklahoma Lifeline Fund.\\\" 17 O.S.Supp.2016, \\u00a7 139.102 (8).\\nCompanion Case No. 115,453 involves a request for funds under Subsection (G) while the remaining six, companion cases, including the instant matter, involve requests brought under Subsection (K), set forth more fully herein. Those cases, also decided today, are Case Nos. 116,193, 116,194, 116,214, 116,215, and 116,421.\\nFor purposes of this appeal, it is not disputed that Dobson is an eligible local exchange provider providing primary services to its customers.\\nThe Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has:\\nthe power and authority and [is] charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend.\\nSubsection 139.106(K) of the Act provides in toto:\\nK. 1. Each request for OUSF funding by an eligible ILEC serving less than seventy-five thousand access lines shall be premised upon the occurrence of one or more of the following:\\na. in the event of a Federal Communications Commission order, rule or policy, the effect of which is to decrease the federal universal service fund revenues of an eligible local exchange telecommunications service provider, the eligible local exchange telecommunications service provider shall recover the decreases in revenues from the OUSF,\\nb. if, as a result of changes required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in revenues or an increase in costs, it shall recover the revenue reductions or cost increases from the OUSF, the recovered amounts being limited to the net reduction in revenues or cost increases or\\nc. if, as a result of changes made as required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in costs, upon approval by the Commission, the provider shall reduce the level of OUSF funding it receives to a level sufficient to account for the reduction in costs. 2. The receipt of OUSF funds for any of the changes referred to in this subsection shall not be conditioned upon any rate case or earnings investigation by the Commission. The Commission shall, pursuant to subsection D of this section, approve the request for payment or adjustment of payment from the OUSF based on a comparison of the total annual revenues received from the sources affected by the changes described in paragraph 1 of this subsection by the requesting eligible local exchange telecommunications service provider during the most recent twelve (12) months preceding the request, and the reasonable calculation of total annual revenues or cost increases which will be experienced after the changes are implemented by the requesting eligible local exchange telecommunications service provider.\\n17 O.S.Supp.2016, \\u00a7 139.106(K).\\nThe ALJ likewise believed that Dobson was an eligible provider who had provided sufficient documentation to receive OUSF funding. Nevertheless, the ALJ deferred to the Commission rulings in the prior companion cases and recommended denial of the requested funds.\"}"

okla/1454586.json

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+"{\"id\": \"1454586\", \"name\": \"JAMES M. HARRIS v. STATE\", \"name_abbreviation\": \"Harris v. State\", \"decision_date\": \"1928-10-26\", \"docket_number\": \"No. A-6369\", \"first_page\": \"221\", \"last_page\": \"224\", \"citations\": \"41 Okla. Crim. 221\", \"volume\": \"41\", \"reporter\": \"Oklahoma Criminal Reports\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T19:09:48.561012+00:00\", \"provenance\": \"CAP\", \"judges\": \"DOYLE, P. J., and DAVENPORT, J., concur.\", \"parties\": \"JAMES M. HARRIS v. STATE.\", \"head_matter\": \"JAMES M. HARRIS v. STATE.\\nNo. A-6369.\\nOpinion Filed Oct. 26, 1928.\\n(271 Pac. 263.)\\nN. E. McNeill and Harry E. Stege, for plaintiff in error.\\nEdwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.\", \"word_count\": \"829\", \"char_count\": \"4819\", \"text\": \"EDWAEDS, J.\\nThe plaintiff in error, hereinafter called defendant, was convicted in the county court of Tulsa county on a charge of practicing medicine without a license, and was fined $500.\\nThe prosecution is under the Medical Practice Act (chapter 59, Session Laws 1923). The information charges that defendant, without having a license or certificate to practice medicine and surgery, did treat and prescribe as physician and surgeon to Velma Weidman, and for compensation, certain drugs'; for an alleged tumor.\\nThe record discloses that at the time charged Velma Weidman and her husband went to the residence of defendant, and the husband informed defendant that his wife was in bad health and he wanted her examined; that defendant took them into another room, placed Mrs. Weidman in a chair, tested her pulse, and proceeded to give a diagnosis of her trouble, going somewhat into details in defining her symptoms and ailment, and then informed her that she had a tumor and was on the verge of \\\"T. B.\\\" He then told them that he had an \\\"oil of radium\\\" to cure her, that his medicine ran from $500 to $1,000, and that two bottles of the \\\"oil of radium,\\\" one for internal and one for external use, would be $125. Defendant then took out of the cupboard two bottles of brown liquid and told them if she would take it according to directions, one-half a teaspoonful each morning and night for a week and a reduced dose after that, and used the other bottle to rub on, it would cure her tumor. The husband then paid him $125 and received the preparation. The defendant did not take the stand and offered no testimony.\\nIt is urgued at some length that the Medical Practice Act is in violation of section 57, art. 5, of the state Constitution. This is no longer an open question in this state. In the case of Reeves v. State, 36 Okla. Cr. 186, 253 P. 510, this contention was considered at length, and it is there held that the act in question is a valid exercise of the police power and not in violation of any provision of the state Constitution.\\nIn enacting this law, the Legislature evidently intended to prevent persons not properly educated, in the science of medicine and not properly licensed from acting or assuming to act as a physician or surgeon and to protect the public from quacks, humbugs, and charlatans who so often prey upon the public, pretending to have marvelous remedies or pretending to cure incurable diseases.\\nBy cross-examination defendant sought to show that the charge of $125 was for the preparation of \\\"oil of iradium\\\" only; that defendant made no charge for any advice or examination. He argues that it is no violation of law for any person to sell medicine in his home, and that the evidence does not sustain the charge. This contention cannot be sustained. It is evident that the physical examination, the pretended diagnosis, and the imposing on the credulity of the patient by the sale of a worthless preparation for $125 , constitutes but a single transaction, and while it is probably true that at the time defendant informed his patient he was charging the $125 for the two bottles of drugs and not for the examination and diagnosis, this does not alter the situation. The entire transaction is a practice of medicine within the definition of the Medical Practice Act. The fact that defendant informed his patient at the time that this charge was for the pretended medicine is plainly but a subterfuge to avoid the provisions of the law.\\nIt is also argued that there is error in instruction No. 6 of the court's charge. This instruction is general, and in substance advises the jury that if they find beyond a reasonable doubt that on the date charged defendant did practice medicine without having a license for such purposes they should find him guilty, and, if they entertained a reasonable doubt, they should acquit. This instruction, it is contended, does not contain the elements of the offense charged, and permits the jury to find defendant guilty without finding that he prescribed for a patient for a fee or compensation. This instruction standing alone might be subject to the objection made, but it must be consTdered and construed with all the other instructions. In other instructions the jury are advised what constitutes a practice of medicine as defined by statute, which construed with instruction No. 6, in the absence of any request for any additional instruction, is sufficiently definite.\\nThe record discloses no error substantially prejudicial to the rights of the defendant.\\nThe case is affirmed.\\nDOYLE, P. J., and DAVENPORT, J., concur.\"}"

okla/1455470.json

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+"{\"id\": \"1455470\", \"name\": \"Ex parte FRANCES L. FABER\", \"name_abbreviation\": \"Ex parte Faber\", \"decision_date\": \"1934-09-11\", \"docket_number\": \"No. A-8801\", \"first_page\": \"177\", \"last_page\": \"178\", \"citations\": \"56 Okla. Crim. 177\", \"volume\": \"56\", \"reporter\": \"Oklahoma Criminal Reports\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T23:01:55.137000+00:00\", \"provenance\": \"CAP\", \"judges\": \"DAVENPORT and CHAPPELL, JJ., concur.\", \"parties\": \"Ex parte FRANCES L. FABER.\", \"head_matter\": \"Ex parte FRANCES L. FABER.\\nNo. A-8801.\\nSept. 11, 1934.\\n(35 Pac. [2d] 741.)\\nAmos T. Hall, for petitioner.\\nJ. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.\", \"word_count\": \"373\", \"char_count\": \"2075\", \"text\": \"EDWARDS, P. J.\\nThis is an original proceeding in habeas corpus. Petitioner alleges she is unlawfully restrained of her liberty by the sheriff of Tulsa county; that she was convicted on her plea of guilty of the fraudulent destruction of insured property and was sentenced to serve a term of one year in the state penitentiary; that she was not afforded an opportunity to advise with counsel prior to her plea of 'guilty and was induced to plead guilty by the fire marshal by his promise that she would receive a suspended sentence; and for that reason the judgment is void. This court declined to issue the writ of habeas corpus but issued a rule to show cause. The sheriff in his return justified his restraint of petitioner under the judgment and sentence.\\nPetitioner relies mainly on the case of Ex parte Hollins, 54 Okla. Cr. 70, 14 Pac. (2d) 243. The writ was awarded in that case for the reason the entire proceedings were had in the presence of an imminent threat of mob violence and wherein the death penalty was imposed on an ignorant negro, of low mentality and unable to read or write, Avho was not represented' by counsel. The decision in that case is not to be stretched to cover irregularities and errors, no matter how \\u2022 numerous, gross, and flagrant they may be in the proceedings preliminary thereto, unless they go to the question of jurisdiction. There is no rule better settled than that the writ of habeas corpus cannot be used in place of an appeal and that relief cannot be had in such a proceeding, unless the court Avas without jurisdiction. Ex parte Adams, 42 Okla. Cr. 27, 274 Pac. 485; Ex parte Pike, 50 Okla. Cr. 125, 296 Pac. 529; Ex parte Gardner, 54 Okla. Cr. 294, 19 Pac. (2d) 910. The matters alleged in the petition do not go to tbe jurisdiction of the court and do not render the judgment void.\\nThe Avrit is denied.\\nDAVENPORT and CHAPPELL, JJ., concur.\"}"

okla/20256.json

@@ -0,0 +1 @@
+"{\"id\": \"20256\", \"name\": \"CITY OF SAPULPA v. YOUNG\", \"name_abbreviation\": \"City of Sapulpa v. Young\", \"decision_date\": \"1931-01-20\", \"docket_number\": \"No. 20699\", \"first_page\": \"179\", \"last_page\": \"199\", \"citations\": \"147 Okla. 179\", \"volume\": \"147\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T00:50:50.409778+00:00\", \"provenance\": \"CAP\", \"judges\": \"LESTER, O. J., CLARK, Y. C. X, and RILEY, KEENER, and McNEILL, JJ., concur.\", \"parties\": \"CITY OF SAPULPA v. YOUNG.\", \"head_matter\": \"CITY OF SAPULPA v. YOUNG.\\nNo. 20699.\\nOpinion Filed Jan. 20, 1931.\\nRehearing Denied Feb. 24, 1931.\\nC. B. Rockwood, for plaintiff in' error.\\nWallace & Wallace and Wayne H. Lasater, for defendant in error.\", \"word_count\": \"16811\", \"char_count\": \"95009\", \"text\": \"SWINDALL, J.\\nThis is an appeal from the district court of Creek county, wherein a judgment was rendered against the city of Sapulpa, plaintiff in error, in favor of Lenora Young, as defendant in error, as damages for personal injuries sustained by her while playing in a public park owned and operated by the city.\\nThe action was originally commenced by Lenora Young, a minor, 14 years of age, by her mother and next best friend, Harriet Young, as plaintiff, against the city of Sapulpa, a municipal corporation, defendant. Later, upon leave of the court first had and granted, an amended petition was filed m which the board of park commissioners, an agency of the said defendant city of Sapulpa, composed of John Ellinghausen, chairman, J. T. Murphy, vice chairman, H. B. Burt, secretary, and Mrs. J. L. Huff, Mrs. Sam Allen, Mrs. E. B. Matthews, C. S. Harper.. John R. Miller, and E. A. Uden, members, and John Ellinghausen, former chairman, H. I. Shirley, former secretary, E. B. Matthews, former vice chairman, ahu AY. B. Key, Mrs. Sam Allen, Mrs. E. B. Matthews, and A. J. AYhitfield, former members, which said last-named members of the said board are herein sued each in his individual capacity, and Ees\\u00eder Emmet Lawrence, city manager of the said defendant city of Sapulpa, and the Fidelity & Deposit Company of Maryland, a foreign corporation, were made parties defendant. The parties will hereafter be referred to as they appeared in the trial court.\\nThe facts as shown by the record are substantially true in that the city of Sapulpa owns and maintains a municipal park located in the southwest part of the city and comprising approximately 93 acres of land. Rock creek enters this park at the northwest corner and meanders through it in a very irregular course leaving the para, at the southeast corner. A dam has Been erected across the creek near the point where it leaves the park and the waters im pounded thereby have been used as a municipal swimming pool. On the east side of the park there is a draw or ravine. The banks of Rock creek, the ravine, and the east side of the park are heavily wooded with native trees and shrubs. ' The west side of the park for its whole length norm and south is a municipal golf course. East of the golf course is a baseball diamond, and east of the baseball diamond is playground equipment for children.\\nThere is a drive winding through the full length of the park. Scattered here and I here are flower gardens and picnic grounds. This park is maintained by the city as a free municipal park and the public is invited to use the same for recreation ana for pleasure, and was at the time of the alleged accident and for a long time prior thereto used by individuals, families, schools, and civic clubs for such purposes.\\nSome time prior to Sunday, April 2\\u00cd), JL928, a ware cable was attached to a large elm tree in this park. The cable was approximately 30 feet long and at the lower end a cross-bar was attached and it was used for a swung. The bank of the ravine at the point where this swing was located was steep and about ten or twelve feet high. Persons desiring to swing would' taire hold or the cross-bar attached to the cable, climb the bank, swing over the ravine and hack.\\nIn the circuit of the swing- it sometime* passed over stumps in its pathway. These stumps wore from 18 inches to two feet high, and persons swinging over them would strike them with their feet unless the stumps were noticed and -the feet lifted up out of the path of the swing. In this way the plaintiff received her injury and sought and recovered damages 'against the defendant on account of its failure to keep the ground's and appliances of the said park in a reasonably safe condition for the purposes named.\\nAs far as the record show's, no one seems to know w'lio erected this swing, but it had existed for some time prior to the time the plaintiff wyas injured.\\nThere are only two issues submitted to this court for determination: First. The plaintiff contends that the appeal should be dismissed for the reason that all persons who were parties to the proceedings in the trial court and' wdiose interests will be adversely affected by reversal of the judgment were not brought into the appellate proceedings. Second. The defendant contends that the city of Sapulpa was acting in a governmental capacity and is not liable impersonal injury sustained by reason of this park being maintained by the city.\\nThe defendant in its brief on petition for rehearing when this cause was dismissed on motion of plaintiff says:\\n\\\"So that the only question presented to this court for review' is, Is the municipality, the city of Sapulpa, liable for personal injury sustained' by reason of this park maintained by said city?''\\nA motion to dismiss wras filed by the plaintiff and overruled by order of this court without prejudice to the plaintiff to further presenting- the same when the cause was submitted by the respective parties on brief. We shall first dispose of the issue raised by the plaintiff.\\nAt the close of plaintiff's evidence, demurrers were interposed by the respective defendants and the court, upon consideration thereof, sustained all of the several demurrers of the defendants except the demurrer of the city of Sapulpa and overruled the demurrer of said city. Each party excepted to the adverse ruling and decision of the court, and thereupon the defendant, the city of Sapulpa, offered its evidence, and all the evidence of the respective parties having been introduced, the court instructed the jury as to the law- of the case and the cause wras duly argued and a verdict rendered by the jury in favor of the plaintiff and against the defendant, city of Sapulpa. A motion for a new trial wras filed in due time by the defendant, the city of Sapulpa, which was by the court considered and overruled and notice of appeal given in open court to the Supreme Court of the state of Oklahoma, which notice was duly entered' upon the records of the trial court as required by law.\\nThe plaintiff, Lenora Young. never filed a motion for hew trial as to the defendants who were dismissed from the action when the court sustained their respective demurrers to the evidence offered by the plaintiff. The plaintiff, to sustain her motion to dismiss, cites: Scott v. Amis, 136 Olda. 72, 276 Pac. 216; Houghton v. Sealy, 129 Okla. 168, 264 Pac. 140, and cases therein cited.\\nIn Scott v. Amis, supra, the action -was-originally commenced by Mildred Amis against J. M. Scott, Phillips Petroleum Company, a corporation, and Devonian Oil Company, a corporation, being an action in tort for\\\" damages, plaintiff alleging that the injury complained of was occasioned by the negligence of the three defendants as joint wrongdoers; the damages claimed by the plaintiff are alleged to have been sustained by her and her two minor children by reason of the wrongful death of L. W. Amis, husbahd of plaintiff and' father of said minor children. The defendants J. M. Scott, Devonian Oil Company and Phillips Petroleum Company each answered separately.\\nUpon the conclusion of the plaintiff's evidence in chief, the defendants each separately demurred thereto. The demurrers of the defendants Phillips Petroleum Company and J. M. Scott were overruled and exceptions noted by the two last-named defendants to the order overruling their separate demurrers and by the plaintiff to the findings, order, and ruling of the court in sustaining the demurrer of the Devonian Oil Company. The trial proceeded as to the defendants Phillips Petroleum Company and J. M. Scott, and at the conclusion of the evidence the court charged the jury and after argument of the cause it was submitted to the jury, and the jury returned a verdict against Phillips Petroleum Company and J. M. Scott which, omitting formal parts and amount, is as follows:\\n\\\"We, the jury empaneled and sworn in the above entitled cause, do upon our oaths fihd the issues for the plaintiff and' against the defendants Phillips Petroleum Company and J. M. Scott and fix the amount of her recovery at $ \\u2014 \\u2014.\\\"\\nThe above verdict was signed by the foreman of the jury, and the amount of plaintiff's recovery fixed therein; the amount is omitted here, as the form of the verdict only is necessary in this discussion of the case.\\nThe Phillips Petroleum Company and J. M. Scott filed separate motions for new trial, which were overruled and' exceptions allowed and they took separate appeals to this court. The plaintiff, within the time prescribed by law, filed a motion for new trial against the Devonian Oil Company, which motion was overruled and exceptions allowed. The defendants Phillips Petroleum Company and J. M. Scott and the plaintiff Mildred Amis, each within the time prescribed by the Code of Civil Procedure of this state gave notice of their intention to appeal from the said judgments and orders to the Supreme Court of the state of Oklahoma, and within the time fixed by statute the Phillips Petroleum Company and J. M. Scott filed their separate petitions in error or assignment of errors with case-made at-' tached in this court. Mildred Amis never filed a cross-petition in error or cross-assignment of errors from the order overruling her motion for new trial against the Devonian Oil Company. Upon motion being filed in this court by defendant in error, Mildred Amis, to dismiss the appeal of Phillips Petroleum Company and J. M. Scott, on the ground that no case-made was served on said Devonian Oil Company, that its rights might .be prejudicially affected by a modification or reversal of the judgment appealed from, and that it is a necessary party to this appeal, this court in a per curiam decision sustained said motion alia dismissed the appeal, and based its per curiam decision upon the following former decisions of this court: Humphrey v. Hunt, Okla. 196, 59 Pac. 971; Kansas City. M. & O. R. Co. v. Williams, 33 Okla. 202, 124 Pac 63; Ft. Smith & W. R. Co v. Wilson, 33 Okla. 280, 124 Pac. 948; Denny v. Ostrander, 33 Okla. 622, 127 Pac. 390; Chickasha Light, Heat & Power Co. v. Bezdicheck, 33 Okla. 688, 126 Pac. 821; Gwinnup v. Griffins, 34 Okla. 117, 124 Pac. 1091; C. R; I. & P. R. Co. v. Austin, 63 Okla. 169, 163 Pac. 517, L. R. A. 1917D, 666; City of Lawton v. Burnett, 72 Okla. 205, 179 Pac. 752.\\nNone of these decisions are authority in that case, for the reason that the same were approved by this court long before section 5238, Rev. Laws of 1910, was amended by the act of the Legislature approved March 23, 1917, and unaer me law then in force all parties to the action of the trial court who were necessary parties, or whose rights might be materially affected by the appeal, had to be brought into the Supreme Court by service of case-made, and when the case-made with petition in error attached was filed in the Supreme Court, within the time fixed by statute, a summons in error was required to be issued thereon, which summons in error was required to be served as in the commencement of the action: however, that section as amended expressly provides that upon giving notice of intention to appeal as provided therein,\\n\\\"All parties of record in the court from which such appeal is to be taken shall become parties to the appeal in the Supreme Court, and' no further notice shall be required td be served upon them of such appeal, and no appeal shall be dismissed by appellate courts of this state because any party in the court below is not made a party to the appeal, but such notice above provided and showing intention to appeal shall automatically make all parties of record in lower court parties in the appellate court.\\\"\\nSection 5238, Rev. Laws of 1910, as amended by the Act of the Legislature approved March 23, 1917, and now appearing as section 782, C. O. S. 1921, was first construed by this court in the case of Mires. V. Hogan, 79 Okla. 283, 192 Pac. 811, decided September 21, 1920, and we do not feel mat this court should follow some decision construing section 5238, Rev. Laws of 1910, prior to the amendment of March 23, 1917, but should be governed by the authorities since that date in so far as the same may be applicable to the particular case under consideration, and in this opinion we shad attempt to point out wherein the per curiam decision is not in harmony with the decisions of this court as they existed at the time of the rendition of the per curiam, decision in this case.\\nIn the case of Merriett v. Newton, 67 Okla. 150, 169 Pac. 488, this court held that:\\n\\\"The right of appeal is governed by the law applicable thereto at the time the judgment appealed from is rendered. Hence it is held that section 1, chapter 219, of the 1917 Session Laws, with reference to giving notice of appeal, is not applicable to an appeal from a judgment rendered March 1, 1917, since that law did not become effective until March 28, 1917.\\\"\\nThis decision announces the departure from the old rule and the approach of the new rule under the amendment of 1917.\\nRecently this court, in Walker v. McNeal, 134 Okla. 111, 272 Pac. 443, held that the decisions of this court construing section 5238, Rev. Laws of 1910, prior to the amendment of March 23, 1917, were not applicable to appeals perfected since such amendment. In the body of that opinion, Commissioner Diffendaffer, at page 444, says:\\n\\\"In C., R. I. & P. Ry. Co. v. Austin, supra, it was held that the defendants, in favor of whom a judgment was rendered in a personal injury case, were necessary parties in an appeal by the .defendants against whom judgment was rendered, for the reason that they had an interest in upholding the judgment rendered, since they would be called upon to again defend in case the judgment would' be reversed and a new trial granted. To the same effect is Penick v. First National Bank, supra, and City of Lawton v. Burnett, supra. In the latter case, it is pointed out that chapter 219, Session Laws of 1917, amending section 5238, Rev. Laws of 1910, regulating appeals, was not applicable, for the reason that the appeal was perfected prior to the amendment. The same rule would apply to both the other cases cited.\\\"\\nThis decision calls attention to the taking effect of the amendment and the intended force and effect thereof, as construed by this court since the amendment.\\nIf said decisions were not controlling in Walker v. McNeal, they are not controlling in this case. This court in Walker v. McNeal follows Mires v. Hogan, supra, and quotes with approval, In re Wah-shah-sheme-tsa-he's Estate, 111 Okla. 177, 239 Pac. 177,, which is a case decided by this court since the amendment of section 5238, supra. The last case will be hereafter more fully discerned.\\nIn re Wah-shah-she-me-tsa-he's Estate, thisi court quoted with approval from McDonald v. Denton (Tex. Civ. App.) 132 S. W. 823, where it is said:\\n\\\"Where there was no adverse interest between defendants in the trial court any one of them could appeal without making the other defendants parties.\\\"\\nIt is not contended in this case and it was not contended in Scott v. Amis, supra, that there was any adverse interest between defendants in the trial court.\\nThe facts, in so far as the necessary parties to be served with case-made are concerned and as to the issue relative to joint and several judgments, are the same in the case at bar as in Scott v. Amis, supra, except in the case at bar the plaintiff never filed a motion for a new trial against the discharged defendants and never gave notice .of her intention to appeal from the findings, order\\u00bb and judgment of the trial court sustaining the demurrer of the discharged defendants to the evidence of the plaintiff in so far 'as it related to them.\\nWe are now convinced that this court was in error in sustaining the motion to dismiss the case in Scott v. Amis, supra, as the opinion in that case is in conflict with Mires v. Hogan, supra, and In re Wah-shah-she-metsa-he's Estate (Penn. v. Shon-Kah-Tsa-A) 111 Okla. 177, 289 Pac. 177, and other cases hereinafter discussed. In the last-mentioned case, this court said:\\n\\\"Section 782, O. O. S. 1921, declaring that 'no appeal shall be dismissed by' this court 'because any party in the court below is not made a party to the appeal,' means no appeal shall be dismissed because a party in the court below is not made a party to the petition in error; the notice of intention to appeal automatically making all parties of record in the lower court adverse parties to the proceedings in error when the same are filed in this court.\\\"\\nIn Mires v. Hogan, supra, this court in a very carefully considered opinion, delivered by Mr. Justice Ramsey, holds:\\n\\\"Under section 5238, Rev. Laws 1910, as amended by the Act of the Legislature approved March 23, 1917 (Laws of 1917, c. 219), notice of intention to appeal as therein provided, coupled with the filing in this court o\\u00ed a petition in error and proper record, confers jurisdiction upon this court over all the parties to the judgment and proceedings complained of,, except parties to the action below who did not appear at the trial and take part in the proceedings from which the appeal is taken, and parties who filed a disclaimer in the trial court.\\\"\\nAlso, that:\\n\\\"Parties \\\"to the action, who did not appear at the trial and take part in the proceedings from which the appeal is taken,1 and parties who filed a disclaimer in the trial court, may be made parties plaintiffs or defendants to proceedings in error in this court, on such terms as this court may direct, upon it appearing that such party or parties might be affected by the reversal of judgment or order complained of.\\\"\\nAnd that:\\n\\\"Section 5238, Rev. Laws of 1910, as amended 'by the Act approved March 23, 1917, declaring that 'no appeal shall be dismissed by' this court 'because any party in the court below is not made a party to the appeal,' means no appeal shall be dismissed because a party in the court below is not made a party to the petition in error; the notice of intention to appeal automatically making all parties of record in the lower court adverse parties to the proceedings in error, when the same are filed in this court.\\\"\\nAnd further that:\\n\\\"Under section 5238, Rev. Laws 1910, as amended- by Act approved March 23, 1917, all parties of record in the court from which the appeal is taken, other than the plaintiff in error and parties not appearing at the trial or filing a disclaimer,, are parties defendants in error to the proceedings in error in this court, irrespective of whether or not they are named as such in the petition in error, provided the notice of intention to appeal is given as required by the statute, and the plaintiff in error otherwise appeals in due time by filing petition in error in the appellate court, with certified copy of a transcript of the record or proper case-made, attached thereto.\\\"\\nIn the body of the opinion, the court says:\\n\\\"Section 5238, R. L. 1910, as thus amended by said Act of March 23, 1917, not only substitutes the notice in open court of the intention to appeal for the issuance and service of summons in error, which is abolished, but expressly declares that 'notice in open court of his intention to appeal to the Supreme Court' makes 'all parties of record in the co-urt from which such appeal is to be taken parties to the appeal in the Supreme Court,' and declares that 'no further notice shall be required to be served upon them of such appeal, and no appeal shall be dismissed by the appellate courts of this state because any party in the court below is not made a party to the appeal, but such notice provided and showing intention to appeal shall automatically make all parties of record in lower court parties in the appellate court'.\\\"\\nQuoting further from the body of the opinion, the court says;\\n\\\"It is insisted that the plaintiff in error should have made the First National Bank of Oashion and Dora Mires parties to his petition in error; that while summons in error is abolished, and the notice of appeal, when the appeal is perfected, brings the parties into the Supreme Court, nevertheless they ceased to be parties unless they are made defendants in error or plaintiffs in error in the petition in error. The statutory declaration that 'No appeal shall be dismissed by the appellate courts of this state because any party in the court below is not made a party to the appeal' means that 'no appeal shall be dismissed by the appellate courts of this state because any party in the court below is not made a party to the appeal, in the petition in error.' This must be what is meant; otherwise, the declaration that 'no appeal shall be dismissed because any party in the court below is not made a party to the appeal' is meaningless and wholly unnecessary, because the very paragraph of which it is a part declares that the notice in open court of the intention to appeal makes 'all parties of record in the court from which such appeal is to be taken parties to the appeal in the Supreme Court' and declares that 'no further notice shall be required to be served upon them of such appeal', and declares that such notice 'shall automatically make all parties of record in lower court parties in the appellate court.' Now, if the notice in open court, or notice served as provided in the statute, makes all parties to the record in the lower court parties to the appeal in this court, and automatically makes them such parties in this court (all of which such notice accomplishes), the additional statement that 'no appeal shall be dismissed because any party in the court below is not made a party to the appeal' must mean that no appeal shall be dismissed because any party in the court below is not made a party to the petition in error.\\\"\\nThe court further holds that:\\n\\\"Upon giving notice in open court, either at the time the judgment is rendered or within 10 days thereafter, of intention to appeal to this court, or if the judgment is rendered within less than 10 days from the expiration of the term, and notice is given within 10 days after the rendition of the judgment, and an entry of such notice is made by the clerk of the court on the trial docket, tliis court acquires jurisdiction over all the parties, upon the filing- in this court o\\u00a3 a petition in error, with case-made or certified transcript of record attached, within 6 months after the rendition of the judgment or order complained of, as provided by-section 5255, R. L. 1910, as amended by thd Act of the Legislature approved February 14, 1911. Since the amendment of section 5288, R. L. 1910, by the act approved March 23, 1917, the petition in error serves only the functions of an assignment of errors. Prior to the amendment of March 23, 1917, the petition in error was in the nature of an original pleading (2 Standard Proe. 293), and the issuance of summons in error, based upon the petition in error with record attached, constituted the commencement of a proceeding in error. McMurtry v. Byrd, 23 Okla. 597, 101 Pac. 1117; Court of Honor v. Wallace, 23 Okla. 734, 102 Pac. 111; Williams v. Paullin, 24 Okla. 694, 104 Pac. 342; St. Louis & S. F. R. Co. v. Rierson, 38 Kan. 359, 16 Pac. 443.\\n\\\"Prior to the amendment of March 23, 1917, the petition in error performed the office of a pleading and assignment of errors. Since that amendment, it is nothing more nor less than the ordinary assignment of errors. Being in the nature of an original pleading prior to the amendment of March 23, 1917, it was just as necessary for it to name the parties plaintiff and defendant as for a hill in equity or an original petition under the Code of Civil Procedure to name the parties. It was not only necessary for the petition in error to name the parties, but a summons in error had to issue out of this court and be served, or service waived. The main purposes of the amendment of March 23, 1917, were to sustain the jurisdiction of this court on appeal, in spite of the inability of plaintiff or plaintiffs in error to obtain service of summons in error upon the parties, and also to end as far as possible the frequently arising- difficult problem of who is and who is not a necessary party to the proceedings in error.\\n\\\"We are not concerned in this ease with the construction of the second paragraph of the Act of March 23, 1917, further than to say, argumentative^, that it expressly declares that neither a party to the action below, who did not appear at the trial and take part in the proceedings from which the appeal is taken, nor a party who filed a disclaimer in the trial court, is a necessary party to the proceedings in error in this court, although such omitted party may be made a party plaintiff or defendant in error in this court on such terms as this court may direct, 'upon its appearing that he might be affected by the reversal of the judgment or order from which the appeal was taken.' The second paragraph of the amendatory act of March 28, 1917, is based largely upon the assumption that neither a party who did not appear and take part in the proceedings from which the appeal is taken, nor a party who filed a disclaimer in the trial court, was actually or constructively present at the time the judgment was rendered or took further notice of the record in the case. Notice of intention to appeal 'shall automatically make all parties of record in lower court parties in the appellate court,' and we conclude from a careful examination of the amendatory act that all parties to the proceedings in the lower court, except parties who did not appear1 and take part in the proceedings from which the appeal is taken, and except parties who filed a disclaimer in the trial court, are automatically made parties, defendants inj error, in this court, irrespective of whether their names are mentioned as such in the assignment of errors, or, as otherwise denominated by the statute, petition in error. The statute does not require that the notice of intention to appeal name the adverse parties. The notice is notice to all others of record, and when the petition in error is filed here the statute names the defendants in error. The petition in error is not served on any party. It is no longer a pleading. It now performs the office solely of an assignment of errors. The First National Bank of Cushion and Dora Mires are parties, defendants in error, in this case, and may be heard if they so desire. Any other construction ignores the plain letter of the statute.\\\"\\nIf the First National Bank of Cashion and Dora Mires were parties defendant in error in Mires v. I-Iogan, supra, then the Devonian Oil Company was a party defendant in error in Scott v. Amis, supra, and might have been heard if it' so desired, but Mildred Amis was not entitled to a dismissal of the action. The Devonian Oil Company might have moved to dismiss the appeal of plaintiff as to it, because the plaintiff below, defendant in error, Mildred Amis, did not file her cross-petition in error or assignment of errors within six months after the order was entered in the trial court overruling her motion for new trial as against it.\\nThe Devonian Oil Company had no interest in upholding the judgment of Scott v. Amis, and the Phillips Petroleum Company, as it is not a party to that judgment, it being a several judgment in favor of Mildred Amis and against Scott and Phillips Petroleum Company, and Mildred Amis alone was the adverse party to Scott and Phillips Petroleum Company, and the only party to the proceedings interested in upholding the judgment or that could have) been materially or prejudicially affeeted by a reversal or modification of the judgment.\\nIf Mildred Amis had, within six months after tlie court entered its order denying her motion for a new trial filed against Devonian Oil Company, filed lier cross-petition in error in this court against Devonian Oil Company, and served it with a brief, it would have been very much interested in upholding the judgment in its favor, sustaining its demurrer to the evidence of plaintiff in the court below; but after the six months within which Mildred Amis could have filed her cross-petition in error against it expired and none was filed, the'Devonian Oil Company went out of the picture and was not an adverse party or interested in upholding a judgment to which it was a stranger.\\nWe are of the opinion that by filing her motion for new trial within the time provided by law, and giving notice in open court of her intention to appeal from the decision of the trial court sustaining the demurrer of defendant Devonian Oil Company, dismissing the action as to the Devonian Oil Company, a corporation, the Devonian Oil Company was automatically made a party defendant in the action on appeal, and when the case-made was served on Mildred Amis, that she was the only adverse party to the action in the trial court, and that service of the ease-made upon her was all that was required, and she having preserved her rights to bring up the Devonian Oil Company, if she had desired to do so, she could have filed her cross-assignment of error on appeal and served a brief on counsel for the Devonian Oil Company, and all parties being before the court, if any portion of the record necessary to a full determination as to the Devonian Oil Company was omitted, upon the request of either party the case-made could have been amended to show the omitted facts, the only requirement necessary being that her cross-assignments of error or petition in error be filed in this court within six; months from the date of the judgment or order appealed from.\\nThis view of the case finds support in the case of Title Guaranty & Surety Co. v. Foster, 84 Okla. 291, 203 Pac. 231, wherein this court, in an opinion delivered by Mr. Justice Ramsey, says:\\n\\\"This brings us to the plaintiff's cross-appeal against the American Surety Company. The plaintiff, as cross-plaintiff in error, did not prepare and serve any case-made, nor file any case-made or transcript of the record in this court with his cross-petition in error and it is contended that his cross-petition in error must be dismissed. The plaintiff did everything- necessary to invoke the jurisdiction of this court to review that part of the judgment adverse to him except prepare and serve a case-made and file the same in this court with his petition in error. The record shows that the cross-petitioner in error filed a motion for a new trial on the .ground that the court erred in exonerating the American Surety Company from liability on its $500 lease bond executed by the guardian on the 9th day of November, 1903, conditioned to be void if the guardian leased the land of his ward with fidelity and well and faithfully accounted for all moneys, rents, profits, and other things of value received by him under such lease. The record also shows that he gave notice of his intention to appeal to the-Supreme Court as required by section 5238, R. L. 1910, as amended by the Act of the Legislature approved March 23, 1917 (Laws 1917, c. 219). Within the six months allowed for commencing proceedings in error plaintiff filed his cross-petition in error, assigning- as error the action of the trial court in exonerating the company from liability on said $500 bond. His cross-petition in error will not be dismissed because he failed to prepare and serve a case-made, it appearing that a true and correct case-made was settled and signed in due time at the instance of the American Surety Company and filed in this court. The making, serving, and filing a separate case-made would have uselessly incumbered the record. Rules of procedure are not promulgated to defeat justice or to render its administration expensive,, hazardous, and inconvenient, but to reasonably aid in protecting and enforcing- rights.\\\"'\\nThe 16th paragraph of the syllabus in that case is as follows:\\n\\\"The filing- of a cross-petition in error attached to a transcript or case-made pre,-viously filed in the Supreme Court to reverse\\u00bb or modify the judgment or final order of the trial court is the commencement of a proceeding in error in the Supreme Court at the instance of the party filing the gross-petition in error. Such constitutes a cross-appeal, and such cross-appeal will not be dismissed because the cross-plaintiff in error did not prepare, serve, and have settled a case-made and file the same with his cross-petition in error; it appearing that the cross-petitioner filed a motion for a new trial and gave notice or appeal, as provided by section 5238, Rev. Laws 1910, as amended by Act approved March 23, 1917 (Laws 1917, c. 219).\\\"\\nCertainly Mildred Amis had no right to secure a dismissal of the case because the Devonian Oil Company was not served with the case-made, as under the holding of the case of Mires v. Hogan and In re Wah-shahshe-me-tsa-he's Estate, supra, the notice of appeal automatically made the Devonian Oil Company a party to the action, and by filing her cross-assignments of error and preparing lier brief and serving the same upon the Devonian Oil Company,, this court would have had complete jurisdiction on appeal to determine whether or not the trial court committed error in sustaining the demurrer to the evidence offered by the Devonian Oil Company.\\nHoughton v. Sealy, supra (129 Okla. 168, 264 Pac. 140) is not in point for the reason that in that case:\\n\\u2022\\\" \\u00bb An action commenced in the district court of Tulsa county by the Magnolia Petroleum Company, as plaintiff, against C. Et Houghton, defendant,, on a promissory' note in the sum of $12,000, and for the foreclosure of a mortgage on certain lots in the city of Skiatook. By permission of the court, Julia Haas intervened in said action, and filed an answer and cross-petition. By her cross-petition, she alleged that defendant, had executed to her a mortgage on the same real estate included in plaintiff's mortgage to secure a note in the sum of $5,000, and asked that her mortgage be decreed a prior lien, that her mortgage be foreclosed, the real estate sold, and that the proceeds be applied in the following order: In the payment of taxes, costs, in satisfaction of her judgment, and the balance, if any, applied on plaintiff's claim. The cause was tried to the court on the 5th day of June, 1925, at which time all parties appeared in person and by their counsel. The court found that both plaintiff and intervener, Julia Haas, were entitled to judgment for the full amount of their respective claims and have their respective mortgages foreclosed. The court further found that the' mortgage of Julia Haas was a first and prior lien on said real estate, ordered the same foreclosed,, and the property sold, and the proceeds thereof applied in the following order: (1) To the payment of taxes due on said land; (2) to the payment of court costs herein; (3) to the payment of the judgment herein rendered in favor of the interpleader, Julia Haas; (4) to the payment of the judgment herein in favor of plaintiff, Magnolia Petroleum Company.\\n\\\"On praecipe of plaintiff an order of sale was issued, appraisement was had, and the real estate was sold on the 12th day of September, 1925, and plaintiff became the purchaser thereof for the sum of $14,000. pPlaintiff then filed its motion to confirm said sale, and defendant filed a motion to vacate the sale on the ground that the same was void. The first mortgage contained a waiver of appraisement, and the second mortgage contained the following provisions :\\n\\\" 'And the said party of the first part for said consideration does hereby waive (or) not waive appraisement of the option of the said second party, its heirs and assigns.'\\n\\\"The court, having heard the motions, sustained plaintiff's motion to confirm the sale, and overruled defendant's motion to set aside the sale. Prom the order of the court overruling defendant's motion to set aside the sale, defendant has appealed. After plaintiff had paid the purchase price to the sheriff, the court issued an order to the sheriff to disburse said funds by paying the costs in the amount of $112.64, the taxes in the ' amount of $465.89, and the payment of the amount of $465.89, and to the payment of eluding interest and attorney's fees, in the amount of $5,942.99. The amount of the judgment was accordingly paid by the sheriff to Julia Haas out of said funds.\\n\\\"The jurisdiction of this court to entertain said appeal has been challenged by plaintiff by a motion to dismiss defendant's appeal. The case-made was served upon plaintiff, but was not served upon Julia Haas, nor was she given notice of the time and place of presenting the case-made to the trial judge for signing and settling, and it does not appear that she appeared on any occasion during the progress of the appeal. This being true, plaintiff asserts that the case-made is a nullity, and the appeal should be dismissed. Oase-made, not having-been served on Julia Haas, is a nullity as to her, and if she is a necessary party to the appeal, the case-made is a nullity for all purposes, and the appeal should be dismissed.\\n'\\\"Section 785, C. O. S. 1921, requires that the case-made or a copy thereof be served upon the opposite party or his attorney. In the case of In re Wah-shah-she-me-tsahe's Estate, 111 Okla. 177, 239 Pac. 177, it was held that the expression 'opposite party' means all parties who have an interest in upholding the decree sought to be reversed. 'Opposite' is a synonym of 'adverse.' It is apparent that the interest of Julia Haas was in the beginning adverse to that of defendant, but defendant asserts in substance that her judgment having- been paid in full, she has no interest in upholding the decree sought to be reversed.\\n\\\"Defendant by his appeal asserts that the order of sale was void by reason of the same having been issued before the expiration of six months from the date of judgment, and asks that the order of sale be vacated by reason of the same having been issued before the expiration of six months from the date of judgment, and that the order of the trial court be reversed. If this court, in passing on the merits of this appeal, should hold that the order of sale was void, and reverse the cause, what position would Julia Haas be in? She would have received $5,942.99 by virtue of a void sale, and no doubt could be compelled to repay that amount. It may be that, in such event, plaintiff would desire to be subrogated to the rights of Julia Haas, or that the real estate would sell for a sufficient amount so tliat she would still realize the full amount of her judgment. But should the order of sale be set aside, the property\\\" again would have to be offered for sale, and we have no assurance that it would sell for even a sufficient sum to pay her judgment. It is likely that the most valuable part of the property is the improvements located thereon, and certainly should such improvements be consumed by fire, another sale would not bring as good a price as the first sale. It would then seem that the interest of Julia Haas might be vitally and prejudicially affected by a reversal of this cause, and that she is a necessary party to the appeal. All persons who were parties to the proceedings in the trial court and whose interest will be affected by the modification or reversal of the judgment or order on appeal are necessary parties on appeal. Weisbender v. School District No. 6, 24 Okla. 173. 103 Pac. 639; Swanson v. Bayless, 51 Okla. 37, 151 Pac. 683; Spaulding Mfg. Co. v. Dill, 25 Okla. 395, 106 Pac. 817; Hawkins v. Hawkins, 35 Okla. 641, 130 Pac. 926.\\\"\\nSo it will be seen from the quoted portion of the findings of this court in the case of Houghton v. Sealy, supra, that the same has no bearing upon, and is not in point in' the case under consideration. As said by: Commissioner Jeffrey'in that case: \\\"It is apparent that the interest of Julia Haasi was in the beginning adverse to that of defendant,\\\" and further, that the judgment would materially affect her, as she might be required to repay the money which had been paid to her in the original action.\\nNo such issues are involved in the Scott v. Amis Case, supra, or in the case at bar. In Scott v. Amis, a demurrer w\\u00e1s sustained to the evidence in so far as the action related to the Devonian Oil Company, and it was eliminated from the picture only in so far as the plaintiff by filing a motion for new trial, and giving notice of appeal, as, provided by law, automatically made it a party on appeal, and she could have presented cross-assignments of error against the Devonian Oil Company in this court. In our opinion, this court should have SO' held in that case, and as said before, we are of the opinion that the decision in that? case is not in accord with the statute, section 5238, as amended, and should not be followed, and that it is predicated upon the authorities of this state construing section 5238, as it existed prior to the amendment of March 23, 1917, and that is conclusively] shown in the opinion of Scott v. Amis, supra, for the reason that this court in that opinion cited cases decided prior to the amendment of March 23, 1917, and nowhere mentions the case of Mires v. Hogan, supra, or Title Guaranty &' Surety \\u00fco. v. Foster, supra. This court further held in Scott v. Amis \\\"that In re. Wah-shah-she-me-tsa-he's Estate, 111 Okla. 177, 239 Pac. 177, was not in point for the reason that this court in that case held that the judgment was a several judgment and not a joint judgment,\\\" and therefore the holding in that case had no application to the condition of the case in Scott v. Amis. That is just another instance in which the rule announced in Scott v. Amis is not sound, and this court fell into error, for the reason that the judgment in Scott, v. Amis was a several judgment. The judgment showed that a demurrer was sustained to the evidence in so far as it related to the Devonian Oil Company, and the cause dismissed as to it and proceeded as between Amis, as the plaintiff, and- the Phillips Petroleum Company, a corporation, and J. M. Scott, as defendants, and a verdict returned by the jury in favor of the plaintiff and against Scott and the Phillips Petroleum Company, a corporation,, as shown by the form of the verdict hereinbefore set out in this opinion. It would have been, contrary to the pleadings and the verdict for the trial court to have rendered a joint judgment on that condition of the record, and the judgment in that case shows clearly that the judgment was a several judgment, and not a joint judgment.\\n\\\"A judgment in a' court of record must be based upon definite and regular proceedings, which the record must disclose.'' Ayers v. Dobson & Hughes, 5 Stewart & Porter (Ala.) 441; also, 33 C. J. 1132 par. 80.\\nIn the case of Frisbie et al. v. McFarlane et al. (Pa.) 46 Atl. 359, the Supreme Court of Pennsylvania says;\\n\\\"The verdict having been rendered jointly against both plaintiffs, and the judgment] against one only of them, he is entitled td a reversal.\\\"\\nAnd that:\\n\\\"A judgment must conform to the verdict on which it is entered.\\\"\\nIn the case of Stewart v. Pruett and Williams, 6-La. Ann. 727, the Supreme Court of Louisiana holds that:\\n\\\"Where joint trespassers have been permitted to sever in their answers and separate verdicts have 'been rendered against each, the court cannot enter up a judgment against them in solid\\u00f3. .The judgment must follow the verdict.\\\"\\nIn Kuykendall et al. v. Coulter, 26 S. W. 748, the Court of Civil Appeals of Tesas says: \\\"A joint and several judgment may be rendered on a joint note.\\\" See, also, Southern Kansas Ry. Co. of Texas et al. v. Crump, 71 S. W. 335.\\nIn the case of Richards v. Scott et al., 05 Pac. 433, the Supreme Court of Idaho held that:\\n'Tn a joint action against numerous defendants, where a several verdict is found, it is error to enter a joint and several judgment.\\\"\\nIn the case of Brooks v. Collier et al., 58 S. W. 559, the Court of Appeals of Indian Territory held that:\\n'Where, in an action of slander by plaintiff and his brother, a joint verdict was rendered in their favor, a judgment based thereon in favor of plaintiff's brother' alone was erroneous, since a several judgment cannot be entered on a joint verdict.\\\"\\n\\\"Where the verdict is joint, the judgment must be joint; where several, the judgment must be several.\\\" Allen v. State, 34 Tex. 230; 11 Enc. Pl. & Prac. 907.\\nIn Volume 1 of Freeman on Judgments, page 173 (5th Ed.) par. 100, we find this language:\\n\\\"A judgment may be joint or several, from the standpoint of both the plaintiffs and the defendants, depending upon whether or not it is for or against them as a unit. In other words, if the same relief is granted to all the parties it is joint as to them, and if the same relief is granted against all the defendants it is a joint judgment against them, while if the relief granted differs as to different plaintiffs or defendants it is from that point of view several rather than joint. This distinction between joint and several judgments, however, has no necessary connection with the question of the nature of the resulting obligation or liability, since a joint judgment creates a joint and several liability. Read v. Jeffries, 16 Kan. 534. Whether a judgment should be joint or several depends upon the character and extent of the right or obligation and the relief incident to its breach. Where the rights and obligations of the parties are joint, a joint judgment is proper and except as otherwise provided by a statute, is necessary (Plulsman v. Todd, 96 Cal. 228, 31 Pac. 39; Shafer v. Hewitt, 6 Colo. App. 374, 41 Pac. 509; Seymour v. Richardson Fueling Co., 205 Ill. 77, (68 N. E. 716; Ross v. Carr, 15 N. M. 17, 103 Pac. 307), pursuant to the common-law rule requiring the judgment in such case to be for or against all of the parties plaintiff or defendant. Where parties are sued jointly a joint judgment may be entered for or against them in a proper ease, though they have answered separately. (Myers v. Moulton, 71 Cal. 498, 12 Pac. 505; Leadbetter v. Lake, 118 Cal. 515, 50 Pac. 086 : Union Oil Co. v. Merc. Ref. Co., 8 Cal. App. 708, 97 Pac. 919.) So a joint judgment may be entered in favor of defendants whose separate general demurrers have been sustained. McCurren v. Garrity, 68 Cal. 566, 9 Pac. 839. When plaintiff is nonsuited as to two defendants a joint judgment in their favor is proper, though as to one the nonsuit was by consent but as to- the other it was contested.\\n\\\"But where the rights of the parties and the relief to which they are entitled are different the judgment may not be joint but should lie several. If several plaintiffs properly join, but their causes of action are separate and distinct and their damages may be different, tlie judgment should not lie for an aggregate si.in but should segregate and award to each the damages or relief to which he is properly entitled. This situation must of course be distinguished from cases involving recovery of a trust fund in which several persons are interested, or analogous cases such as actions for wrongful death by the survivors, where the amount recovered is a fund for the reimbursement of the damages suffered by them individually. If a liusband's claim for bis injuries is joined with a claim for injuries to his wife, in an action by both, and there is a recovery on both claims, a joint judgment in favor of both is-improper. There can be no joint judgment against defendants if neither the complaint nor the proof shows a joint liability, even though they may he severally liable', (Pierce v. Minturn, 1 Cal. 470.) Thus where defendants sued jointly in ejectment, answer separately and tlie findings show they are individually and severally in possession of separate parts of the land, a joint judgment is erroneous; it should be several in accordance with the findings.\\\"\\nAnd further in the same section, we find this:\\n\\\"Generally a several judgment may be rendered when a several action could have been maintained.\\\"\\nIn paragraph 104, tlie author uses this language :\\n\\\"At common law, in a joint action, whether upon a joint or a joint and several contract, or upon several distinct contracts, the general rule was that there could be not judgment except for or against all of the defendants. To this rule the exceptions, involving purely personal defenses, were: 1. In cases where one or more of the defendants, admitting the contract, established a discharge therefrom, as by bankruptcy. 2. Where some one of the defendants pleaded and proved that he was incapable of contracting when the alleged contract was made, from some disability, as infancy. So unyielding was the rule that when one of the defendants suffered a default or confessed the action, no judgment could be given against him, if his codefendant succeeded in maintaining some defense affecting the en tire contract. The reason given for the general rule is that the pleading- and proof must correspond. This rule is not broken by allowing a recovery against some of the defendants where the other or others establish a purely personal defense. Personal defenses are those not available to other defendants, and as already indicated include not only a discharge in bankruptcy or insolvency, and personal disability to contract, such as infancy, insanity and coverture, but any other similar defense which relieves one or more of the defendants from the original joint liability without releasing the others, as in the case of the discharge of a surety by an extension of time for payment or a statute of limitations affecting only one of the parties.\\n\\\"In the absence of statute every judgment against any joint defendant is irregular until the other is out of the action, and the issues against him disposed of. Until then he has the right to appear at every trial 'of the issues. And a continuance of the action as to one joint defendant invalidates a judgment as to the other.\\\"\\nHowever, as pointed out in paragraph 105, the author further says:\\n\\\"But statutes and codes of procedure adopted in many of the states have abolished or greatly modified the general common-law rule. These statutory provisions vary much m their phraseology and have not always been construed with uniform results. Some of them provide that judgment may be given for or against 'one or more of several plaintiffs, and for or against one or more of several defendants'; and 'that in an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper.' Under these statutes, of two persons sued jointly one may obtain a judgment against the plaintiff\\\", and the other be subjected to a judgment in the plaintiff's favor. And in general, a several judgment may properly be rendered whenever a several' action can be sustained, as in case of a joint and several obligation either contractual or tortious. But notwithstanding such code or statutory provisions, where only common defenses are maintained, the judgment must be against all or none. While in a proper case the court has discretion to determine whether a separate judgment shall be entered as to some, after it has exercised its discretion and entered such a judgment it has no discretion to refuse to proceed to judgment as to the others.\\\"\\nIn 33 Corpus Juris, commencing at page 1110, paragraph 64, under the subject of \\\"Judgments,\\\" we find the rule to be announced in very similar language to that found in Mr. Freeman's excellent work on Judgments. Paragraph 64 is as follows:\\n\\\"At common law, and in the absence of statute changing the rule, where several plaintiffs join in common-law action, all must recover or none, and if only part of plaintiffs have a right of action, the suit must fail as to all. This rule has been very generally changed by codes and practice acts so as to permit the recovery of a judgment by any plaintiff who shows himself entitled, although the others may fail, as where the claims of the several plaintiffs are distinct although sufficiently united by a common interest to authorize their joinder in a single suit.\\\"\\nParagraph 65 reads:\\n\\\"At common law, and in the absence of statute changing the rule, if several defendants are joined in an action ex contractu, and all are brought before the court by service or appearance, it is essential to plaintiff's recovery that he should establish a joint liability; he must recover against all or none, and it is not competent to enter a judgment in favor of one defendant and against another.\\n\\\"Although the foregoing rule has been long and well established, it is not universal; whenever a defendant pleads matter which goes to his personal discharge, or any matter that does not go to the nature of the writ, or pleads or gives in evidence a matter which is a bar to the action against himself only, and of which the others could not take advantage;, judgment may be for such defendant and against the rest.\\\"\\nParagraph 66, relative to tort actions, reads:\\n\\\"In an action for tort against several defendants plaintiff may recover against so many of the defendants as the proof shows were guilty of the wrong, and those defendants as against whom the proof fails are entitled to a verdict. The court may grant a new trial to one or more of several defendants if satisfied that they were wrongly convicted, and may render judgment upon the verdict as to the remainder. The rule that plaintiff must recover against all joint defendants or non\\u00a9 is limited to actions on contracts, and has no application to actions for torts, except where the action is in case for a negligent performance of, or a negligent failure to perform, a duty arising out of a contract, in which case the rule is the same as in actions on contract, and, if a joint contract and liability is alleged, a joint liability must be shown. But where the relation of the parties is such that an issue found for one defendant necessarily inures to the benefit of his codefendant, judgment cannot be entered against the latter.\\\"\\n(Citing in support of the rule of \\\"respond-eat superior\\\" that, \\\"But where the relation of the parties is such that an issue found for one defendant necessarily inures to the ben efit o\\u00a3 his codefendants, judgment cannot be entered against the latter.\\\" Patterson v. Risher, 143 Ark. 376, 221 S. W. 468; St. Louis & S. F. Ry. Co. v. Williams, 55 Okla. 682, 155 Pac. 249; C., R. I. & P. Ry. Co. v. Austin, 43 Okla. 698, 144 Pac. 1069; Sipes v. Puget Sound Electric R. Co., 54 Wash. 47, 102 Pac. 1057; Doremus v. Root, 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649.)\\nParagraph 68 treats of the modification of common-law rule by statutes in the several states, and is as follows;\\n'Tn many states statutes provide in substance that judgment may be given 'for or against one or more of several defendants,' and usually provide further that, in an action against several defendants, 't'he court may in its discretion render judgment against one or more of them, leaving- the action to proceed against the others whenever a several judgment is proper.' Such statutes are applicable in actions for tort as well as in actions on contract, although there is less frequent need of invoking- the statute in tort actions. Under these statutes, if a plaintiff sues two or more defendants on an obligation, alleged to be joint, or joint and several, he is no longer compelled to establish a joint cause of action against all, but a judgment may 'be taken against the party or parties shown to' be liable, when the others are not liable. It is the intent of such statutes to apply to all actions founded on contract the same rule with regard to the right of recovery against a part of the defendants which prevails at common law in the case of actions founded on torts, or; as some authorities say, to adopt the rule prevailing in equity as to joint defendants. But these statutes do not permit the rendition of a several judgment, on a joint cause of action; that can be done only where a several judgment would be proper; if'plaintiff sues on a joint obligation, and the proofs show only a joint obligation, he must recover against all jointly-liable or none, as at common law; but if the proofs show a several obligation, or a joint obligation as to two or more defendants less than all, a recovery may be had against those shown to be liable regardless of the fact that only a joint obligation was alleged. The true test as to whether a separate judgment may be had is whether a separate action could have been maintained. By statute in many jurisdictions joint obligations have been made joint and several.\\\"\\nParagraph 70, treating of statutory joint judgments, says that:\\n'By a widely adopted class of statutes commonly known as 'joint debtor acts,' which have \\u2022 been sustained as essentially constitutional, and which were enacted to supersede the necessity of proceeding to outlawry against one not found or brought into court, it is provided in substance that, where one or more defendants are sued upon a joint obligation, and process is served upon one or more but not upon all defendants, plaiib tiff may proceed against those served, unless the court otherwise directs, and recover a judgment in form against all the defendants, which is good as a personal judgment against defendants who were served, or who appeared, and enforceable against their separate property, and the joint property of them and the absent defendant, located within the state, but against the latter's individual property.\\\"\\nWe have quoted extensively from Mr. Freeman's work on Judgments, and from Corpus Juris on the subject of joint and several judgments, for the reason that our statute contains provisions very similar to those set forth in the text heretofore cited. The sections of our Code amending the common-law rule are as follows: Section 222, C. O. S. 1921, provides that:\\n\\\"Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and indorsers and guarantors, may all or any of them be included in the same action, at the option of the plaintiff.\\\"\\nSection 224 provides that:\\n\\\"The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.\\\"\\nSection 258, C. O. S. 1921, as amended by chapter 186, Session Laws of 1925, page 291, is as follows:\\n\\\"Service on some of several defendants. Where the action is against two or more defendants and one or more shall have been served, but not all of them, the plaintiff may proceed as follows:\\n\\\"First: If the action be against defendants jointly indebted upon contract,, tort, or any other cause of action, he may proceed against the defendants served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served; and if they are subject to arrest, against the persons of the defendants served.\\n\\\"Second: If the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.\\\"\\nThe amendment made to section 258, as above so: forth, is the clause, \\\"tort, or any other cause of action.\\\"\\nThe section relative to entering joint and several judgments is 663, C. O. S. 1921, and reads as follows:\\n\\\"Judgment may be given for or against one or more of several plaintiffs, and for on against one or more of several defendants; it may determine the ultimate rights of the parties on either side', as between themselves, and it may grant to the defendant any affirmative relief to which he may bci entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed againstl the others whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or proceed in the cause against the defendant or defendants served.\\\"\\nIn the case of Atlantic & Pacific R. Co. v. Mary J. Laird, 164 U. S. 393, 41 Law Ed. 485, the Supreme Court of the United States in an opinion delivered by Mr. Justice White says:\\n\\\"So, in the case at bar, there was a duty shown, independently of contract; and the trial court, looking at the allegations of a complaint which had not been demurred to, solely for the purpose of determining the propriety of an amendment, was manifestly justified in holding that the right to recover was not founded upon the breach of a contract, but upon the neglect of a common-law duty. The action therefore was ex delicto, and the defendants, being joint tort-feasors, might have been sued either separately orf jointly at the election of the injured party, and, if, upon the trial, the proof warranted, a recovery might have been had against a single defendant. Session v. Johnson, 95 U. S. 347.\\n\\\"The right of recovery against one of several joint tort-feasors thus existing is in principle analogous to the rule declared by Chitty at page 386 of his work on Pleading,, to the effect that in torts the plaintiff may prove a part of the charge if the averment be divisible and there be enough proof to support his case. This is illustrated at page 392, where Chitty says;\\n\\\" 'Til an action ex delicto, upon proof of part only of the injury charged, or of one of several injuries laid in the same count, the plaintiff will be entitled to recover pro tanto, provided the part which is proved afford per se a sufficient cause of action, for torts are, generally speaking, divisible'.\\\"\\nAnd further that:\\n\\\"But even though the action was founded upon a contract, under the rules of practice in California a recovery might have, been had against either defendant. Thus, in Shain v. Forbes, 82 Cal. 583, which was an action against two defendants to recover compensation for professional services alleged to have been rendered for them jointly by an attorney at law, pending the action one of the defendants died. It was argued that the testimony of a certain witness, not being admissible against the representatives of the deceased defendant, was not competent for any purpose, because the action was joint, and that no several judgment could be rendered against the surviving defendant. To this argument the Supreme Court answered ;\\n\\\" 'It is true that the rule contended for existed at common law, but from the earliest time it has been changed by statute in this state. The Code provides : \\\"Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants,, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves.\\\" Oal. Code Civ. Proc. paragraph 578. And this was but a re-enactment of section 145 of the old practice act. Under this provision it has been held that where two persons are sued jointly upon a joint contract, judgment may be rendered in favor of the plaintiff against one of the defendants, and in favor of one of the defendants against the plaintiff. Rowe v. Chandler, 1 Cal. 168; Lewis v. Clarkin, 18 Oal. 399; People v. Frisbie, 18 Cal. 402. In our opinion a several judgment might have been rendered against McPherson.'\\n\\\"It results that if the nature of the action was not changed, the amendment merely dismissing one of two joint tort-feasors and alleging that the injury complained of was occasioned solely by the remaining defendant did not introduce a new cause of action.\\\"\\nThere are three different rules in regard to the effect of a judgment against a tortfeasor on the liability of a co-tort-feasor, namely;\\n1. \\\"In England the law is settled that merely obtaining a judgment against one bars further recovery against another for the same wrong. This rule is adopted by a few American decisions.''\\nThe only states that we have been able to find holding to that rule are Virginia and Rhode Island. See Petticolas v. Richmond, 96 Va. 456, 28 S. E. 566, and Parmenter v. Barstow, 21 R. I. 410, 43 Atl. 1035.\\n2. \\\"Numerous authorities in the United States hold that taking out execution on a / judgment against a tort-feasor is an election to proceed against that one, which precludes further recovery, although satisfaction is not obtained.\\\"\\n3. \\\"The American rule, as settled by the great weight of authority, is that_ a judgment without full satisfaction,, against one, is no bar to an action against another for the same wrong.\\\"\\nSee Gilbreath v. Jones, 06 Ala. 129 ; Dawson v. Schloss, 93 Oal. 194, 29 Pac. 31; Ohetwood v. California Nat. Bank, 113 Cal. 414, 45 Pac. 704; Woodworth v. Gorsline, 30 Colo. 186, 69 Pac. 705; Vincent v. McNamara, 70 Conn. 332, 39 Atl. 444; Norfolk Lumber Co. v. Simmons (Dela.) 43 Atl. 163; Wanack v. People, 187 Ill. 116, 58 N. E. 242; Turner v. Hitchcock, 20 Iowa, 310; Elliot v. Porter (Ky.) 30 Am. Dec. 689; Jones v. Lowell, 35 Me. 541; Knight v. Nelson, 117 Mass. 458; McReady v. Rogers, 1 Neb. 124; Hyde v. Noble, 13 N. H. 494; Palmer v. New York News Pub. Co., 52 N. Y. S. 539; Martin v. Buffaloe, 128 N. O. 305, 38 S. 10. 902; Maple v. Cincinnati, II. & D. R. Co,, 40 Ohio St. 313; Allen v. Liggett, 81 Pa, 486; Hawkins v. Hatton (S. C.) 9 Am. Dec. 700; Christian v. Hoover, 6 Yerg. (Tenn.) 505; Sanderson v. Caldwell, 2 Aik. (Vt.) 195; Griffie v. McClung, 5 W. Va. 131; Lovejoy v. Murray, 3 Wall. (U. S.) 1, 18 L. Ed. 129.\\nWe have tried to point out herein that under the American rule, as announced by the great weight of authority, and under the statutes of this state, a several judgment may be rendered when a several action could have been maintained. The defendants in this action could have been sued separately and therefore separate judgment rendered against them, and in fact a separate judgment was entered in favor of the defendants who were dismissed from the action, as shown in the case-made attached to the petition in error, when the court sustained the demurrer of the hoard of park commissioners and of the individuals composing the board of park commissioners and dismissed the action as to them, and proceeded with the trial as between Lenora Young, as plaintiff, and the city of Sapulpa, a municipal corporation, as defendant, and a separate verdict was returned in favor of the plaintiff and against the city of Sapulpa, as shown by the case-made at page 284, the judgment being entered upon the several verdict in favor of Lenora Young and against the defendant city of Sapulpa, a municipal corporation. Under the amended petition, the plaintiff asks she may have judgment against each and all of the defendants individually and collectively. The plaintiff never filed a motion for new trial as to the defendants that were dismissed from the action when the court sustained the demurrer of the board of park commissioners and individual members of said board of park eommissionters and individual members of said board,, and therefore the plaintiff in this case cannot be heard to complain because the case-made was not served upon them, for if a case-made had been served upon them, they could properly move the dismissal of the action on appeal in so far as they are concerned, for the reason that no motion for new trial was filed by plaintiff as against them, and they are out of the ease.\\nThe plaintiff contends that the board of park commissioners and the\\u00bb individuals composing said board will be adversely affected by a reversal of the judgment sought to be reversed. We cannot agree to this contention. The discharged defendants were never adverse to the plaintiff in error, and could not in any way be affected by a reversal or modification of the judgment in this case. A demurrer was sustained to the evidence in so far as it related to them, and no motion was ever filed for new trial by the plaintiff as to them and they are out of the ease and may go on their way rejoicing.\\nIn the case of Harper et al. v. Rutland Saving Bank, 79 Okla. 274, 192. Pac. 1101, following Gruble v. Ryus, 23 Kan. 195, it was held that:\\n\\\"The ruling upon a demurrer to the evidence is a decision occurring on the trial; and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion for a new trial be made and filed within the time prescribed by law.\\\"\\nThe plaintiff, defendant in error, did not file a motion for a new trial and the judgment sustaining the demurrer of the board of park commissioners and the individuals composing said board has become, final and cannot now be reviewed here, and we see no reason why they should have been served with ease-made.\\nThis court in Bilby v. Catheart et al., 51 Okla. 189, 151 Pac. 688, held that:\\n\\\"Errors occurring on the trial of a cause are not renewable in this court, unless the same were brought to the attention of the trial court by motion for a new trial and acted upon, and such motion and the ruling thereon preserved by bill of exceptions included in a transcript or incorporated in a ease-made, filed with a petition in error in this court.\\\"\\nThe only judgment involved in this appeal is the separate judgment entered on the separate verdict in favor of the plaintiff, Lenora Young', and against the city of Sapulpa.\\nThe plaintiff also relies upon C., R. I. & P. Ry. Co. v. Austin, cited with approval in Scott v. Amis, supra. As stated before, C., R. I. & P. Ry. Co. v. Austin was held by this court not to be applicable in so far as it relates to appeals, for the reason that the statute has been amended since that case was decided. It is not applicable on the question of joint judgments for the reason that this court very clearly pointed out in the first, appeal of C., R. I. & P. Ry. Co. v. Austin et al., 43 Okla. 698, 144 Pac. 1069, wherein Mr. Justice Kane, in delivering the opinion for the court, says:\\n\\\"In an action for damages for personal injuries, where a railway company and several of its employees who were charged with the commission of the acts of negligence which caused the injury were joined as parties defendant, and where from the negligence pleaded and the proof made the railway company, if liable at all, is liable upon the principle of respondeat superior, it is error to render judgment against the railway company upon the verdict of the jury which found in favor of the plaintiff as against the railway company and in favor of one of the employees; separate demurrers to the evidence having been sustained as to the others.\\\"\\nSo, in the second appeal, found in 63 Okla. 169, 163 Pac. 517, this court in an opinion by Mr. Justice Hardy correctly held that the judgment was a joint judgment and that all parties to the joint judgment were, necessary parties on appeal.\\nThis court also in St. L. & S. F. R. Co. et al. v. Williams, 55 Okla. 682, 155 Pac. 249, in the third syllabus, held the same as it did in C., R. I. & P. Ry. Co. v. Austin, supra, but there is no issue in the case at bar involving the principle of respondeat superior, and, as pointed out in Corpus Juris, supra, where the principle of \\\"respondeat superior\\\" arises, it is an exception to the general rule and a joint judgment must be rendered or no judgment at all.\\nThere are some very well-considered decisions by able jurists holding that:\\n\\\"When a master is made liable for the negligent or' wrongful act ef his servant solely upon the ground of the relationship between theip, under the doctrine of 'respondeat superior,' and not by reason of any personal share in the negligent or wrongful act, by his presence or express direction, he is liable severally only, and not jointly with the servant.\\\" Warax v. Cincinnati, N. O. & T. P. Ry. Co., 72 Fed. 638.\\nThe principle of \\\"respondeat superior\\\" is not involved in Scott v. Amis, supra, and the judgment in that case was a several judgment, and the judgment in the case at bar is a several judgment, and no person is interested in upholding the judgment except. Lenora Young, and the only defendant that is an adverse party is the city of Sapulpa, OMa.\\nWhere the action is dismissed as to part of the defendants on order of the court, or the court sustains a demurrer of the plaintiff to the evidence as to one or more of the defendants and not as to all of them, or a verdict is returned in favor of one or more defendants and not as to all of them and a verdict is returned in favor of the plaintiff and against the other defendant or defendants, and the defendant or defendants against whom the verdict is returned desire to appeal and the plaintiff also desires to appeal from the order dismissing some or all of the other defendants from the suit, or the plaintiff desires to appeal from a verdict in favor of some of the defendants and against the plaintiff as to said several judgment, and if the parties so desiring to appeal file their respective motions for a new trial snd the same are denied, and if the parties so desiring to appeal give notice of their intention to appeal as required by law, they thereby make all parties parties to the appeal, except parties to the action below who did not appear at the trial and take part in the proceedings from which the appeal is taken, and parties who filed a disclaimer in the trial court, and the appealing parties or either of them may prepare and serve a case-made upon the party adverse to them in the lower court, and if the judgment is a joint judgment or if any other party brought into this court by the notice of appeal has an interest in upholding the judgment or decree sought to be reversed, the case-made should be served upon such party or parties, but if the judgment be several, then any party to the several judgment may appeal by serving notice upon the party or parties adverse to him in the judgment appealed from. For illustration: Say, A. sues B. and O. as joint wrongdoers, or in any case in which a several judgment may be properly entered,, and a verdict is rendered in favor of A. and against B., and a verdict is rendered in favor of 0. and against plaintiff A., and A. and B. each, within the time provided by law, file separate motions for a new trial and each are denied by the trial court, and A. and B. give notice of their intention to appeal from the orders overruling their respective motions for a new trial, by this procedure all parties, except parties to the action below who did not appear at the trial and take part in the proceedings from, which the appeal is taken, and parties who filed a disclaimer in the trial court, are automatically made parties on appeal. Then A. has a case-made prepared and serves the same upon B. within the time provided by the order of the court. A. is the only party adverse to B. in the several judgment and the only party upon whom B. is required by the laws in force at this time to serve the case-made. But A. has filed a motion for new trial against O. and the same has been denied, and he desires to prosecute his assignment of errors on appeal against 0., so when the case-made is served upon him, if it is not complete, and does not contain a statement of so much of the proceedings and evidence or other matters in the action as may be necessary to present the errors complained of to the Supreme Court, as between A. and C., then A. should suggest such amendments as may be necessary to enable him to ljrosecute his cross-assignment of errors, and then when the case-made is settled and signed A. may file his cross-petition or assignment of errors in this court within six months next after the date the judgment or order appealed from was entered in the trial court, and he may then prepare and serve his brief upon C., and 0. is a party on appeal, having been given notice of the intention of A. to axrpeal, as required by law, and by such notice is automatically made a party on appeal. When C. is served with the brief of A. he may examine the case-made and if it does not meet the requirements of section 784 C. O. S. 1921, and cannot be so amended as to contain a statement of so much of the proceedings and evidence -or other matters in the action as may be necessary to present the errors complained of in the' cross-petition in error, then this court should dismiss the action in so far as it relates to the cross-petition in error. So, if the plaintiff, A., should make a proper showing in this court that the case-made served upon him by defendant B. and filed in the court below and attached to the petition in error on assignment of errors, does not meet the requirements of section 781, C. O. S. 1921, and cannot be so amended as to contain a statement of so much of the proceedings and evidence or other matters in the action as may be necessary to present the errors in his petition in error or assignments of errors, then this court should dismiss the action in so far as it relates to the petition in error and not as to the cross-petition, unless, as stated before, the cross-petition is also fatally defective as to that portion of the appeal. If the case-made is correctly prepared, or may be so amended as to present the errors assigned in the petition in error, and the cross-petition in error, or either of them, then the appeal should not be dismissed, but all parties to the appeal who have an interest to protect either under the petition in error or cross-petition in error should brief their respective assignments of error as provided for m the rules of this court if they have the burden of sustaining the assignments of error or any of them, and the parties who do not have the laboring oar should file their answer briefs as required by the rules of this court. So we hold that:\\n1. Where a civil action is commenced in a court of record in which, under the pleadings, evidence, and verdict, it is proper to enter a several judgment, as provided for under the statutes of this state, the court may give judgment for or against one or more of several plaintiffs, and for or1 against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between, themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or proceed in the cause against the defendant or defendants served, in accordance with the terms and provisions of section 663, C. O. S. 1921.\\n2. A judgment in a court of record must be based upon definite and regular proceedings, which the record must disclose.\\n3. The ruling upon a demurrer to the evidence is a decision occurring on the trial; and, in order to enable the Supreme Court to review such ruling it is necessary that a motion for a new trial be made and filed within the time prescribed by law, and if the motion for a new trial is overruled, the party desiring to appeal from the order denying the motion for a new trial must give notice of intention to appeal as provided by section 782, C. O. S. 1921.\\n4. In an action where a several judgment may be properly entered, and upon the conclusion of plaintiffs evidence the defendants demur thereto, and upon consideration of the demurrer the court sustains the same as to part of the defendants and overrules it as to one or more of the defendants, and the plaintiff desires to appeal to this court from the judgment sustaining the demurrer, it is the duty of the plaintiff to except to the judgment at the time and within the time fixed by statute to file a motion for a new-trial, and if the same is overruled, to save an exception and give notice of intention to appeal from said judgment to this court as provided by law and to perfect an appeal to this court within six months from the date of the order overruling such motion.\\n5. Errors occurring- on the trial of a cause are not reviewable in this court, unless the same were brought to the attention of the trial court by motion for a new trial and acted upon, and such motion and the ruling thereon preserved by bill of exceptions included in a transcript or incorporated in a case-made, filed with a petition in error in this court. Bilby v. Catheart et al., 51 Okla. 189, 151 Pac. 688.\\n6. If a plaintiff recovers a judgment against one or more of the defendants and the defendant or defendants file a motion for a new trial within the time provided by'law and give notice of intention to appeal and prepare and serve a ease-made on plaintiff within the time fixed by law, or, as extendedbj\\u00ab order of the court or a judge thereof, and a true and correct case-made is settled and signed at the instance of the defendant or defendants against whom a judgment was rendered and filed in this court, and the plaintiff files and causes to be attached to the case-made filed in this court, within six months after the date of the several judgment or order plaintiff is appealing from a cross-petition in error, this meets the requirements of the laws of this state now1 in force. Title Guaranty & Surety Co. v. Foster, 84 Okla. 291, 203 Pac. 231.\\n7. When a several judgment is properly entered in an action, the case-made is only required to be served by the party appealing upon the adverse party to the several judgment appealed from.\\n8. Where there was no adverse interest between defendants in the trial court, any one of 1 hem may appeal, without making the other defendants parties. In re Wali-shahshe-me-tsa-he's Estate, supra.\\n9. The case-made may be prepared by any one or more parties desiring to appeal, who have preserved their right to appeal by filing a motion for a -new trial, where one is required,, and giving notice of appeal as required by law, and that the case-made is prepared and served within the time fixed by law or extended by order of the court or a judge thereof, and that said case-made is true and correct and settled and signed in due time and filed in this court within the time allowed by law with a petition in error and a cross-petition or cross-petition in error attached.\\n10. The case-made must contain a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the Supreme Court, but it is not necessary for the several appellants to each make, serve, and file a separate case-made, as such a course of procedure would uselessly incumber the record.\\n11. The filing of a cross-petition in error attached to a transcript or case-made previously filed in the Supreme Court to reverse or modify the judgment or final order of the trial court is the commencement of a proceeding in error in the Supreme Court at the instance of the party filing the cross-petition in error. Such constitutes a cross-appeal, and such cross-appeal will not be dismissed because the cross-plaintiff in error did not prepare, serve, and have settled a case-made and file the same with his cross-petition in error; it appearing that the cross-petitioner filed a motion for a new trial and gave notice of appeal, as provided by section 5238, Rev. Laws 1910, as amended by Act approved March 23, 1917 (Laws 1917, c. 219).\\n12. Section 782, C. O. S. 1921, declaring that \\\"no appeal shall be dismissed by'' this court \\\"because any party in the court below is not made a party to the appeal,\\\" means no appeal shall be dismissed because a party in the court below is not made a party to the petition in error; the notice of intention to appeal automatically making all parties of record in the lower court adverse parties to the proceedings in error when the same are filed in this court.\\n13. Under section 5238, Rev. Laws 1910, as amended by the Act of the Legislature approved March 23, 1917 (Laws 1917, c. 219), notice of intention to appeal as therein provided, coupled with the filing in this court of a petition in error and proper record, confers jurisdiction upon this court over all the parties to the judgment and proceedings complained of, except parties to the action below who did not.appear at the trial and take part in the proceedings from which the pppeal is taken, and parties who filed a disclaimer in the trial court.\\n14. Under section 5238, Rev. Laws 1910, as amended by Act approved March 23, 1917, all parties of record in the court from which the appeal is taken, other than the plaintiff in error and parties not appearing at the trial or filing a disclaimer, are parties defendants in error to the proceedings in error in this court, irrespective of whether or not they are named as such in the petition in error, provided the notice of intention to appeal is given as required by the statute, and the plaintiff in error otherwise app\\u00e9als in due time by filing petition in error in the appellate court, with certified copy of a transcript of the record or proper ease-made attached thereto.\\n15. This court will determine for itself whether the record is such as it has juris diction to review, and if not, whether the case-made may be corrected as provided in section 786, C. O. S. 1921,. so as to present the errors complained of in the petition in error or a cross-petition in error, or either or both. Lillard v. Meisberger, 113 Okla. 228, 240 Pac. 1067.\\nThis, in onr opinion, is the clear legislative intent of sections 608, 782, and 785, C. O. S. 1921, and such, in our opinion, is the construction of the two last-mentioned sections by this court in Mires v. Hogan, 79 Okla. 233. 192 Pc. 811, and in Re Wah-shah-sheme-tsa-he's Estate, 111 Okla. 177, 239 Pac. 177, Title Guaranty & Surety Co. v. Foster, 84 Okla. 291, 203 Pac. 231, Walker v. McNeal, 134 Okla. Ill, 272 Pac. 443, and Berg v. Willibey, 138 Okla. 110, 280 Pac. 456.\\nTo follow the rule herein stated will give vitality to the holding of this court in Title Guaranty & Surety Co. v. Foster, supra, that:\\n\\\"Rules of procedure are not i>romulgated to defeat justice or render its administration expensive, hazardous, and inconvenient, but to reasonably aid in protecting and enforcing rights.\\\"\\nThe case of Scott v. A,mis, supra, is therefore expressly overruled, and the motion to dismiss in this cause is denied.\\nWe have gone into this issue to the extent we have for the reason that the proposition is still frequently presented, argued, and urged under the rule announced by this court .prior to the amendment of section, 5238, Rev. Laws 1910, by the Act of the) Legislature approved March 23, 1917, and this court seems to have overlooked the amendment in Scott v. Amis, supra.\\nOn the question of the liability of a municipal corporation for injuries received in consequence of negligent conditions existing in a public park maintained by the city, the authorities are divided.\\nA number of the states hold that, taking into consideration that parks are established with the view and for the purpose of furnishing to the people at large a place for free recreation to promote the health and welfare of the general public and as a means of adding to the beauty of a city, a municipality in maintaining a public park is engaged in a governmental activity, discharging public duties, and is therefore not liable for injuries caused by negligence therein. The states so holding are California, Georgia, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, Rhode Island, Tennessee, Washington, and Wisconsin. See Kellar v. Los Angeles, 179 Cal. 605, 178 Pac. 505; Cornelisen v. Atlanta (Ga.) 91 S. E. 415; Hibbard v. Wichita, 98 Kan. 498, 159 Pac. 399; Park Com'rs v. Prinz, 127 Ky. 460, 105 S. W. 948; Bolster v. Lawrence, 225 Mass. 387, 114 N. E. 722; Heino v. Grand Rapids, 202 Mich. 363; Emmons v. Virginia, 152 Minn. 295, 188 N. W. 561; Caughlan v. Omaha, 103 Neb. 726, 174 N. W. 220; Bisbingv. Asbury Park, 80 N. J. 416, 78 Atl. 196; Blair v. Granger, 24 R. I. 17, 51 Atl. 1042; Nashville v. Burns, 131 Tenn. 281, 174 S. W. 1111; Russell v. Tacoma, 8 Wash. 156, 35 Pac. 605 ; Bernstein v. Milwaukee, 158 Wis. 578, 149 N. W. 382.\\nThere seem to be as many or more states holding that it is the duty of a city owning and operating a public park to exercise ordinary care to keep the same in a reasonably safe condition for the benefit of persons lawfully using the same, and that in maintaining its parks the city is not acting-in a purely governmental capacity, but in its proprietary or private capacity. Cases holding to this view are: Kokomo v. Loy, 185 Ind. 18, 112 N. E. 994; Bloom v. Newark, 3 Ohio N. .P. (N. S.) 480; Capp v. St. Louis, 251 Bio. 345,15S S. W. 616; Denver v. Spencer, 34 Colo. 270, 82 Pae. 590; Ehrgott v. N. Y., 96 N. Y. 264; Weber v. Harrisburg, 216 Pa. 117; Barthold v. Philadelphia (Pa.) 26 Atl. 304; Boise Development Company v. Boise City, 30 Idaho, 675, 167 Pac. 1032; Norburg v. Hagna, 46 S. D. 568, 195 N. W. 438; Ramirez, Administrator, v. City of Cheyenne (Wyo.) 241 Pac. 710; Byrnes v. City of Jackson (Miss.) 105 So. 861; Warden v. City of Grafton (W. Va.) 128 S. E. 375; Pennell v. Wilmington (Del.) 78 Atl. 915.\\nOur court in the case of City of Anadarko v. Swain et al., 42 Okla. 741, 142 Pac. 1104, said:\\n\\\"Where, in an action for damages for the death of their eight year old minor son, the plaintiffs show that the city maintained a public park within the corporate limits of the city of Anadarko, and had constructed within the boundaries of said park a settling basin or reservoir in connection with its waterworks system, and had placed a high wire fence around the base of the incline of said settling basin for the purpose of avoiding injuring the public, and the evidence further shows that, just prior to the death of said child, the agents and employees of the city removed a large portion of said fence, and negligently allowed the same to remain down for a long period of time, and during said time the minor son of the plaintiffs went into the park and on to the grounds used for waterworks purposes and was attracted to the reservoir by his curi osity and childish instinct and was drowned, held, that the child was upon the premises by express invitation, and the city owed to him the duty of using ordinary care to avoid injuring him while on the premises.\\\"\\nThe marked conflict in the cases relative to the liability of municipalities for negligence in the maintenance of public parks has chiefly been due to the different views the courts have entertained as to the relation the parks of a city occupy toward the city and its inhabitants. The law appears to he well settled that a municipal corporation in the preservation of the public peace, public health, maintenance of good order and enforcement of the laws for the safety of the public, possesses governmental functions and represents the state, and is not liable for the torts of its officers or agents, but where the corporation exercises powers and privileges which are permissive and not mandatory, or which are peculiarly for the benefit of the corporation, then the municipality acts in a proprietary or private capacity.\\nWhile the city may be maintaining the parks for recreation and improving the health of its citizens, it is not required by law to furnish to the public a park, as there is no mandatory duty upon the city to furnish parks. The right is permissible rather than mandatory, and we think when the city undertakes to maintain a park and to keep therein certain equipment for the pleasure, amusement, and recreation of the citizens of the city and the public generally who are invited to enter the same, it must be held to' be the duty of the city to maintain the park in a reasonably safe condition for those lawfully using the same.\\nDuring the open and warm seasons of the year the parks are usually filled with women and minor children of the city who enter the same for recreation and amusement. One of the most important, if not the principal quality or beneficial elements of a public park, is the safety it throws around the unprotected youth and indiscreet of the state placed therein by the toiling parents, chiefly for the safeguards supposed to be thrown around them and incidentally for play and recreation.\\nWe feel that it would be announcing a very harsh rule to hold that the children of the city or the public generally who play in a city park for the purposes of pleasure, amusement, recreation, and improving their health should be invited to a place of danger where they might lose their lives or be maimed or injured. When the city invites them into its parks for health and recreation, it is the duty of the city to use ordinary care in providing them a reasonably safe place for such recreation, so we hold that a city must keep its public parks in a reasonably safe condition for the benefit of all persons using them.\\nThe rule here announced is in harmony with Capp v. City of St. Louis, supra, Warden v. City of Grafton, supra, Ramirez, Administrator, v. City of Cheyenne, supra, Byrnes v. City of Jackson, supra, and Nor-burg v. Hagna, supra, and the other cases which hold that a city in maintaining its public parks acts in a proprietary or private capacity rather than a governmental capacity.\\nThe city is not liable for damages occasioned by the dangerous condition of its parks until notice of such dangerous condition is brought home to it, or such condition has existed for such a length of time that it is chargeable with notice of the unsafe condition, the same as it is liable for defective streets and sidewalks.\\nThe issue of notice is expressly waived in this case for the reason that counsel for defendant states that the case is being presented solely upon the question of whether or not the city in maintaining its public parks was acting in a purely governmental capacity.\\nHowever, we have carefully examined the record and are convinced that the evidence shows that the defendant, city of Sapulpa, was chargeable with notice of the unsafe condition of the park and that there is no material error shown by the record.\\nThe judgment of the- trial court is therefore affirmed.\\nLESTER, O. J., CLARK, Y. C. X, and RILEY, KEENER, and McNEILL, JJ., concur.\\nCULLISON and ANDREWS, JJ., absent.\"}"

okla/397879.json

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+"{\"id\": \"397879\", \"name\": \"UNITED STATES RUBBER CO. v. CITY OF TULSA\", \"name_abbreviation\": \"United States Rubber Co. v. City of Tulsa\", \"decision_date\": \"1924-10-07\", \"docket_number\": \"No. 14058\", \"first_page\": \"163\", \"last_page\": \"166\", \"citations\": \"103 Okla. 163\", \"volume\": \"103\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T19:56:06.518492+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED STATES RUBBER CO. v. CITY OF TULSA.\", \"head_matter\": \"UNITED STATES RUBBER CO. v. CITY OF TULSA.\\nNo. 14058\\nOpinion Filed Oct. 7, 1924.\\n1. Municipal Corporations \\u2014 Claims Against Charter City \\u2014 Statutory Authority.\\nOne who demands payment of a claim against a municipality operating under a charter form of government must show some provision of such charter authorizing it or i:liat it arises from some contract, express or implied, which finds authority in the general statutes of the state, and it is not sufficient that the performance of the contract for which payment is claimed is beneficial.\\n2. Same.\\nWhoever deals with a municipality does so with notice of the limitations on it or its agents\\u2019 powers. All are presumed to know the law and those who contract with it or furnish it supplies do so with reference to the law, and if they go beyond the limitations imposed they do so at their peril.\\n3. Sam\\u00e9 \\u2014 Invalid Contracts \\u2014 Ratification by City.\\nA contract not in its origin obligatory upon the corporation, by reason of not having been made in the mode prescribed by the charter, cannot be affirmed and ratified m disregard of that mode by any subsequent action of the corporate authorities, and a liability be thereby fastened upon the corporation.\\n4.Pleading \\u2014 Judgment on Pleadings \\u2014 Refusal.\\nWhere a verified general denial of all the allegations of plaintiff\\u2019s petition is filed, the further allegation in the answer to the effect that the defendant neither affirms nor denies certain allegations of the petition but demands strict proof thereof, it is not error for the court to overrule the plaintiff\\u2019s motion for judgment on the pleadings.\\n(Syllabus by Pinkham, C.)\\nCommissioners\\u2019 Opinion, Division No. 5.\\nError from District Court, Tulsa County; Yaljean Biddison, Judge.\\nAction by the United States Rubber Company against the City of Tulsa. From judgment in favor of the defendant, plaintiff brings error.\\nAffirmed.\\nWard & Chase and George Paschal, for plaintiff in error.\\nI. J. Underwood and Harry L. S. Halley, for defendant in error.\", \"word_count\": \"2640\", \"char_count\": \"15731\", \"text\": \"Opinion by\\nPINKHAM, C.\\nPlaintiff in error, hereinafter termed plaintiff, instituted this action against the city of Tulsa to recover a money judgment.\\nPlaintiff's petition alleges, in the second paragraph thereof, that the defendant is indebted to it in the sum of $7,426.70, with interest thereon at the rate of six per cent, per annum from January 1, 1921, for goods, wares, and merchandise sold and delivered by plaintiff to the defendant at the special instance and request of the defendant.\\nIt was further alleged that the said purchase had been made according to the laws of the state of Oklahoma, and the charter and the ordinances of the defendant, city of Tulsa.\\nThe third paragraph of the plaintiff's petition alleges that the said merchandise was sold and delivered to defendant on the dates set forth in exhibit \\\"A\\\" attached to the petition. and wore of the reasonable market value of the sums set forth in the said exhibit, that they were received and used by said defendant, and the defendant thereby became liable' to the plaintiff in the said sum of $7,426.70.\\nExhibit \\\"A\\\" attached t\\u00f3 and made a part of plaintiff's petition, is as follows:\\n\\\"Tulsa, Oklahoma, Jany. 1st. 1921.\\n. \\\"The City of Tulsa Dr. to United States Rubber Co.\\n\\\"Dec. 5th, 1919, to 200 ft. cotton rubber lined hose________,________$420.00.\\n\\\"Dec. 10th,________do.____________ 420.00\\n\\\"Dec. 15th_______do____________ 420.00\\n\\\"Dec. 20th _do____________ 420.00\\n\\\"Dec. 26th _do____________ 420.00\\n\\\"Dec. 28th _do____________ 420.00\\n\\\"Dec. 31st _do____________ 420.00\\nDec. 31, 1920, to 2000 do____________4200.00\\n\\\"Interest at the rate of 6 per cent, per annum from dates of items as shown above _2S6.70\\n\\\"Total now due________________$7426.70''\\nThe defendant answered with a verified general denial of the allegations of the petition, and further alleged that as to the allegations contained in paragraphs two and three of plaintiff's petition it had not sufficient information to either affirm or deny the same, and therefore demands strict proof of each and every allegation therein contained.\\nA jury was waived by the parties, and the case was tried to the court on the 9th day of June, 1922, and after the introduction of plaintiff's evidence, the defendant demurred to the evidence of plaintiff.\\nThe trial count took the case under advisement and on the 17th day of June, 1922, plaintiff filed its motion for judgment on tne pleadings and its motion to strike defendant's answer.\\nThereafter, on the 27th day of June, the court overruled the motion to strike, and for judgment on the pleadings, and sustained defendant's demurrer to the plaintiff's evidence, and rendered judgment for the defendant.\\nMotion for a new trial was overruled, and plaintiff perfected its appeal to this court.\\nFor reversal of the judgment counsel for plaintiff in their brief submit the following propositions: First, that the defendant city is liable under the proof on an express contract, at least to the extent of the 7 items in the sum of $420 each as shown on exhibit \\\"A\\\", attached to the petition; second, that the defendant city is liable to it on an implied contract, it having accepted and used and received the benefit of the property described in plaintiff's petition, and that defendant is bound to pay the reasonable market value of the same; third, -that the answer of defendant did not raise any issue, and that the plaintiff therefore should have had judgment on the pleadings.\\nUnder the first and second propositions plaintiff contends that the first seven items as shown by exhibit \\\"A\\\" aggregating' $2,940, and interest, were brought as shown by the evidence strictly within the charter requirements of the defendant city in such cases made and provided.\\nIt is pointed out that none of these first seven items equals the sum of $500, and it is contended that the testimony shows there was an appropriation for that purpose ample to take care of the amount called for by the said seven items at the time the order was made, and that therefore the plaintiff is entitled to recover the amounts covered by the seven items referred to on the basis of an express contract, and that as to the remaining item of $4,200 and interest plaintiff is entitled to recover upon an implied contract on a quantum meruit basis for.goods had and received by the defendant city.\\nIt will be observed that plaintiff alleged in his petition that \\\"said purchase having been in all things made according to the laws of the state of Oklahoma, charter and ordinances of the city of Tulsa in such cases made and provided.\\\"\\nThe verified general denial of the defendant city put in issue the allegation that this contract of purchase was made in accordance with the charter of the city of Tulsa. The charter provides that:\\n\\\"No contract shall be entered into by the board of commissioners until after the appropriation has been made therefor nor in excess of the amount appropriated, and all contracts shall be made upon specifications and no contract shall be binding upon the city unless it has been signed by the mayor and countersigned by the auditor, and the expense thereof charged to the proper appropriation all contracts of whatever character pertaining to public improvements or the maintenance of public property of said city involving an outlay of as much as $500 shall be based upon specifications to be prepared and submitted to and approved by the board of commissioners; and after approval by the board of commissioners, advertisement for the proposed work or matter embraced in said proposed contract, shall be made, inviting competitive bids for the work proposed to be done, which said advertisement shall be published in a daily newspaper not less than five times. \\\"\\nUpon the issue made by the petition and answer the only evidence introduced by the plaintiff to establish its cause of action was the testimony of F. M. Bohn, who was one of the commissioners of the city of Tulsa at the time the plaintiff alleges it sold the merchandise in question to the defendant city.\\nThis witness testified, in substance, that at the time of this purchase he was commissioner of fire and police; that the other commissioners agreed that he might purchase the goods in question, consisting of fire hose; that there was no appropriation for the $4,200 item, but the witness thought there were sufficient funds to take care of the first seven items in the sum of $2,940; that there was no competitive bidding, but that the city accepted and used the merchandise in question.\\nAn examination of exhibit \\\"A\\\" attached to plaintiff's petition considered in connection with the testimony of the commissioner of fire and police shows, we think, very clearly that the order for the purchase of 3,600 feet of cotton rubber-lined hose for the aggregate sum of more than $7,000 was made ->at one time, and constituted one entire contract, and cannot be split up into a number of separate contracts of $420 each, thereby rendering it unnecessary to have invited competitive bids as required by the provisions of the charter.\\nThere is no evidence disclosed by the record that the contract for purchase of goods sued for was ever executed under the authority of the board of commissioners of the city of Tulsa, and signed by the mayor and countersigned by the city auditor.\\nThe power to make the contract in question at all was dependent upon a substantial compliance with all the quoted provisions of the charter.\\nIt is not contended that these requirements of the charter were complied with.\\nThe prevailing rule undoubtedly is that if the powers of a municipality or its agents are subjected by statute or charter \\\"to restrictions as to the form and method of contracting that are limitations upon the power itself, the corporation cannot be held liable by either an express or an implied contract in defiance of such restrictions.\\\" McQuillin, Municipal Corporation, sec. 1181; Jersey City Supply Co. v. Jersey City, 71 N. J. L. 631, 60 Atl. 381.\\nThe rule to be deduced from any decisions of this court with respect to this question is that one who demands payment of a claim against a municipality operating under a charter form of government must show some provision of such charier authorizing it, or that it arises from some contract, express or implied, which finds authority in the general statutes of the state, and it is not sufficient that the performance of the contract for which payment is claimed is beneficial. Perry Water & Ice Co. v. City of Perry, 29 Okla. 593, 120 Pac. 582; McKinney v. City of Wagoner, 45 Okla. 28, 144 Pac. 1071; Buckeye Engine Co. v. City of Cherokee. 54 Qkla. 509, 153 Pac. 1166; Mitchell v. City of Atoka, 76 Okla. 266, 185 Pac. 96; Board County Commissioners of Tulsa County v. Tulsa Camera Record Co., 103 Okla. 35, 228 Pac. 110; O'Neal Engineering Co. v. Incorporated Town of Ryan et al. 32 Okla. 738, 124 Pac. 619.\\nIn the last case cited it is said:\\n\\\"Whoever deals with a municipality does so with notice of the limitations on it or its agent's powers. All are presumed to know the law and those who' contract with it or furnish it supplies do so with reference to the law and if they go beyond- the limitations imposed they do so at their peril.\\\"\\nThere can be no implied promise on thcr part of a municipality to pay for goods received by it under a contract not made in the manner prescribed by statute, and there can be no recovery on quantum meruit thereon. LaFrance Fire Engine Co. v. Syracuse, 68 N. Y. Supp. 894.\\nThe whole aim, purpose, and object of our Constitution, statutes, and municipal charters with respect to the mode and manner of incurring public indebtedness is to protect the citizens and tax payers of the municipality from unjust, ill-considered, or extortionate contracts, or those showing favoritism ; \\\"and if the municipality is suffered to disregard them and the other contract party is nevertheless permitted to recover for the property delivered or the services rendered either on the ground of ratification, estoppel, or implied contract, then it follows as the night the day, that the statute or charter provision can always be evaded and set at naught.\\\" McQuillin, Municipal Corporations, sec. 1164.\\nIt is better that an individual should occasionally suffer from the mistake of public officers or agents than to adopt the rule which through improper combination or collusion might be turned to the detriment or injury of the public. Whiteside v. U. S. 93 U. S. 247.\\nIn view of the well settled rule announced in the decisions of this court with reference to this question we deem it unnecessary to consider the cases in other jurisdictions cited by the plaintiff to support its contention that the defendant city is liable upon an implied contract.\\nAn examination, however, of the cases relied upon discloses that the rule there announced is not applicable to the state of facts disclosed by the record in the instant case.\\nThe case of Argenti v. City of San Francisco, 16 Cal. 255. cited and relied upon by counsel for plaintiff in their brief* in which case it is held that:\\n\\\"An executory contract made, without authority cannot be enforced but where the contract has been executed and the corpor-.' ation has received a benefit of it the law interposes an estoppel and will not permit the validity of the contract to be questioned\\\"\\n\\u2014has been, we think, practically overruled by the subsequent case of Zottman v. San Francisco, 20 Cal. 96, in which it is held that a contract not in its origin obligatory upon the municipality 1 by 'reason of'not having been\\\"' made in' the mode prescribed by the charter cannot be affirmed'' and ratified in disregard of that mode by any'subsequent action of the corporate, authorities, ' and a liability be thereby fastened upon the corporation.\\nThe last proposition discussed by counsel for plaintiff in their brief is that the an-, swer of defendant is not sufficient, and that' plaintiff was entitled to a judgment on the pleadings.\\nIt is contended that the admission on the part of defendant that it has not sufficient information to . deny the allegations in plaintiff's petition is a specific admittance of the same, and that the answer of defendant is simply a demand on the part of defendant for plaintiff to prove its ease without any denial of plaintiff's causes of action, and that the attempted verification verifies nothing but admits the allegations of plaintiff's petition.\\nNo decisions of the court are cited to sustain the plaintiff's contention in this regard.\\nThe defendant in its answer denies every allegation contained in plaintiff's petition, and verified the denial, which we conclude put all the allegations in plaintiff's petition in issue. The averment in defendant's answer that it has not sufficient information to either affirm or deny the same and therefore demands strict proof of each and every allegation therein contained is a common law form of pleading not recognized by our code, and in view of the verified general denial proceeding it may be regarded as surplusage, but no motion to strike was directed against it. We' think the plaintiff's motion for judgment on the pleadings was properly overruled.\\nWe are clearly of the opinion that the plaintiff sold the goods in question upon an illegal and void contract, and that the present action in view of the admitted facts cannot be maintained, and that the demurrer to plaintiff's evidence was properly sustained\\nWhether in any other form of proceedings the plaintiff can recover, we conclude that in the present action it can have no relief.\\nWe.think the judgment of the trial court should be affirmed.\\nBy the Court:-\\nIt is so ordered.\"}"

okla/398531.json

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+"{\"id\": \"398531\", \"name\": \"WATSON v. DOSS\", \"name_abbreviation\": \"Watson v. Doss\", \"decision_date\": \"1931-09-08\", \"docket_number\": \"No. 20218\", \"first_page\": \"132\", \"last_page\": \"133\", \"citations\": \"151 Okla. 132\", \"volume\": \"151\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T00:07:28.141229+00:00\", \"provenance\": \"CAP\", \"judges\": \"LESTER, O. J., and RILEY, HEENER, SWINDALL, ANDREWS, MeNEILL, and KORNEGAY, JJ., concur. CLARK, Y. O. J., not participating.\", \"parties\": \"WATSON v. DOSS.\", \"head_matter\": \"WATSON v. DOSS.\\nNo. 20218.\\nOpinion Filed Sept. 8, 1931.\\nWelty & Lafon, for plaintiff in error.\\nT. R. Wise and M. L. Minton,\\u00abfor defendant in error.\", \"word_count\": \"1125\", \"char_count\": \"6567\", \"text\": \"CCJLDISON, J.\\nThis action was commenced in the district court of Beckham county, Okla., by II. ,T. Doss, defendant in error, plaintiff below, against W. T. Watson, plaintiff in error, defendant below, for the recovery of damages in the sum of $6,000 for slander.\\nThe pleadings reveal that plaintiff commenced this action by filing his petition October 12, 1927, wherein he alleges that he has been damaged in his reputation and business by the defendant by reason of certain false and slanderous statements, spoken of and concerning him by the defendant, to wit. that, on or about the 1st day of October, 1927, the defendant said of and concerning the plaintiff, to and in the presence of J. E. Hutto, T. C. Masterson, and John Hoard, that plaintiff had sold lumber to the Farmer's Union Co-Operative Gin Company, at Texola, Okla.; and that said plaintiff and one Jabe Darnell had padded in the amount of about $1,100 the lumber and material bills so sold by the said plaintiff to the said gin company; that Jabe Darnell is and was at the time of said statements, and at the time the plaintiff sold the lumber and other material for the erection of said gin, the general manager of the said gin company, and that plaintiff was secretary-treasurer of said company, and is a retail lumber and hardware merchant at Texola; that by said statements the defendant did say and imputed to plaintiff fraud and collusion with said Jabe Darnell to defraud the said gin company in the sum of $1,100, which statements were false and untrue and known to the defendant at the time to be false and untrue and were made with malice toward plaintiff, for the purpose and intent to injure him in his reputation and business; that plaintiff has been damaged in his reputation and business the sum of $3,000. And for his second cause of action the plaintiff makes all the statements contained in the foregoing cause of action part of the allegations contained herein, and says that the defendant made a similar statement of and concerning plaintiff to one J. T. Reynolds and B. T. Addis about October 7th (1927), which statements were untrue and known at the time to be untrue and made with the purpose and intent of injuring the reputation and character of the plaintiff, and that by reason of said statement this plaintiff has been damaged in his business and reputation in the sum of $3.000. Wherefore, he' prays judgment for the sum of $6,000 and costs.\\nDefendant, for answer, filed a general denial, and further pleaded that the statements he made were true.\\nThe case was tried to a jury, and the jury relumed a verdict for the plaintiff, in the amount of $100.\\nThe record discloses that a trial was had to a jury, and at the close of plaintiff's evidence, defendant demurred thereto, alleging that the evidence of plaintiff fails to establish proof of any point alleged in plaintiff's petition showing in any way actual, constructive, or exemplary damages in favor of plaintiff and against defendant, \\u2014 which demurrer was overruled by the court.\\nThereupon defendant introduced his evidence and rested, and plaintiff introduced further evidence and rested, whereupon the case was submitted to the jury. At the close of the case defendant did not renew his demurrer to the evidence, nor request an instructed verdict.\\nPlaintiff in error interposes seven assignments of error, but in his brief devotes most of the argument to the third assignment of error, which reads as follows:\\n\\\"Said court erred in not sustaining the demurrer of the defendant to the evidence of plaintiff.\\\" .\\nAs disclosed by the record in the instant case, defendant cannot now insist upon the overruling of his demurrer to plaintiff's evidence as error\\nThis court, in the case of Local Bldg. & Loan Ass'n v. Hudson-Houston Lumber Co., 150 Okla. 44, 3 P. (2d) 156, speaking through Justice Swindall, said:\\n\\\"If a defendant, after its demurrer to the evidence of the plaintiff has been overruled, does not stand upon the demurrer, but puts in its evidence, it waives the demurrer, and if it does not move for a directed verdict after the parties have finally rested, it cannot urge against an adverse verdict that the evidence was insufficient to establish a cause of action in favor of the plaintiff.\\\"\\nAlso, in the case of Abraham v. Gelwick, 123 Okla. 248. 253 Pac. 84, fourth paragraph of the syllabus:\\n\\\"Where the defendant demurs to the evidence in chief of the plaintiff and defendant afterwards introduces evidence, and thereafter plaintiff introduces further evidence, and in rebuttal, and the defendant fails to renew his demurrer to all the evidence, or request an instructed verdict, and permits the issues joined to be submitted to the jury upon all the evidence without objection and exception, the verdict on review in this court is conclusive so far as such evidence is concerned, except as to excessive damages, appearing to have been given under the influence of passion or prejudice.\\\"\\nThese cases are conclusive of the matter in question, and hold that since defendant did not stand upon his demurrer, or did not renew it after all the evidence was in, or move for a directed verdict, there is no question of error to be presented, but the same was waived.\\nIn concluding his brief, defendant states that the court erred in giving instruction. No. 6, but the record discloses that defendant saved no exceptions to the instructions given by the trial judge. Exception must be taken in order to save the question for review by this court.\\nSection 542, O. O. S. 1921, reads as follows :\\n\\\"Exceptions to Instructions. \\u2014 A party excepting to the giving of instructions, or the refusal thereof, shall not be required to file formal bill of exceptions; but it shall be sufficient to write at the close of each instruction, 'Refused and excepted to,' or, 'Given and excepted to,' which shall be signed by the judge.\\\"\\nSince defendant did not save proper exceptions to the instructions as given, in accordance with the section just cited, he cannot now raise the same on appeal.\\nIn accordance with the authorities cited, we conclude that no reversible error was committed by the trial court.\\nThe judgment is affirmed.\\nLESTER, O. J., and RILEY, HEENER, SWINDALL, ANDREWS, MeNEILL, and KORNEGAY, JJ., concur. CLARK, Y. O. J., not participating.\\nNote.' \\u2014 See under (2) 14 R. C. L. 808; R. C. L. Perm. Supp. p. 3677; R, O. L. Pocket Part, title \\\"Instructions,\\\" \\u00a7 67.\"}"

okla/416610.json

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+"{\"id\": \"416610\", \"name\": \"CONTINENTAL OIL CO. et al. v. HAYES et al.\", \"name_abbreviation\": \"Continental Oil Co. v. Hayes\", \"decision_date\": \"1932-05-10\", \"docket_number\": \"No. 22720\", \"first_page\": \"142\", \"last_page\": \"145\", \"citations\": \"157 Okla. 142\", \"volume\": \"157\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T21:12:58.890769+00:00\", \"provenance\": \"CAP\", \"judges\": \"OULLISON, SWINDALL, ANDREWS, Mc-NEILL, and KORNEGAY, JJ., concur. LESTER, O. J., CLARK, V. C. J., and HEFNER, J., absent.\", \"parties\": \"CONTINENTAL OIL CO. et al. v. HAYES et al.\", \"head_matter\": \"CONTINENTAL OIL CO. et al. v. HAYES et al.\\nNo. 22720.\\nOpinion Filed May 10, 1932.\\nOwen & Looney, Paul N. Lindsey, and J. Fred Swanson, for petitioners.\\nJ. Berry Bang, Atty. Gen., and Robert D. Crowe, Asst. Atty. Gen., for respondents.\", \"word_count\": \"2036\", \"char_count\": \"11840\", \"text\": \"RILEY, J.\\nPetitioners bring this original action to review an award made by the State Industrial Commission in favor of respondent Leonard Hayes, herein referred to as claimant, and against petitioners.\\nOn August 13, 1929, claimant received certain accidental injuries coming within and covered by the Workmen's Compensation Law, while in the employ of petitioner Continental Oil Company. Employer's first notice of injury was filed August 17, 1929. Report of initial payment by the insurance carrier was filed August 21, 1929, and included the statement: \\\"This is final.\\\" September 9, 1929, employee's first notice of injury and claim for compensation was filed, in which the nature and extent of injuries was described as: \\\"Bruised back, broke rib, fractured ankle.\\\" It was also stated therein that claimant quit work on account of the injury August 13, 1929. and that he returned to work August 21, 1929, at a wage of $150 per month.\\nOn September 4, 1929, there was filed with the Commission stipulation and receipt on Form No-. 7, showing payment of compensation in the sum of $8, in which the period of disability was stated as one week and one day. This stipulation as shown by the record was signed by claimant, but not by the insurance carrier, though a purported copy which was introduced in evidence appears to have -been signed by J. S. Lewis, adjuster.\\nA motion to reopen was apparently presented to the Commission, a copy of which appears in the record, but does not appear to be dated, and there is no filing mark thereon, and the record does not disclose the date it was received by the Commission. It was apparently presented prior to November 10, 1930, as on that date a notice was issued that a hearing would be hold November 21, on \\\"motion of claimant to reopen case to determine extent of permanent partial disability.\\\" The hearing was had and continued from time to time until May 26, 1931. On July 20, 1931, the State Industrial Commission entered its finding and order, wherein, after the finding that claimant received accidental injuries while in the employment of petitioner while engaged in a hazardous occupation, and that claimant's average wage at the date of injury was $150 per month, the following findings were made:\\n\\\"That by reason of said accidental injury the claimant has been temporarily totally disabled from the performance of ordinary manual labor from the 13th day of August, 1929, up to this date, except for two days which he worked, and is now temporarily totally disabled from the performance of ordinary manual labor.\\\"\\nCompensation was ordered paid at the rate of $18 per week for temporary total disability from August 21, 1929, to July 20, jl931, less two days which claimant worked, a total of $788, and compensation was ordered paid in future at the same rate until otherwise ordered.\\nPetitioners first contend that because claimant petitioned the Commission to reopen the cause, \\\"to determine extent of permanent partial disability,\\\" and because of certain statements made by the chairman of the Commission during the hearing to the effect that the question was \\\"What is his permanent partial?\\\" the Commission erred in awarding compensation for temporary total disability.\\nStrict rules of pleading are not enforced in a proceeding before the State Industrial Commission. Although a claimant may claim for a certain class or character of disability, the Commission may award compensation for such disability as the evidence may justify. When a cause is properly before the Commission, the entire range of disability mentioned in the statute may be inquired into and an award may be made in accord with the facts shown by the evidence.\\nThe petitioners' contend, however, that the Commission was without jurisdiction to award further compensation for temporary total disability without allegation and proof of a change of condition. They assert that the stipulation and receipt, though not actually approved by the Commission, are binding upon the parties where no notice of disapproval is sent by the Commission within ten days from the date of filing same, under Rule 31 of the State Industrial Commission then in force, which provided:\\n\\\"In the absence of notice of the Commis sion's disapproval within ten days after the filing o;f stipulation and receipt, Commission's Form 7, the same shall be considered approved and no notice of approval or award shall be necessary.\\\"\\nThe record does not disclose an approval or refusal to approve the stipulation and receipt, nor does i-t show that a notice was sent by the Commission to either party.\\nMarland Production Co. v. Hogan, 140 Okla. 220, 294 P. 115, is cited by the petitioners as upholding the validity of Rule 31 of the State Industrial Commission. It is contended that under this rule, in the absence of notice of the Commission's disapproval of the stipulation within ten days after it was filed, it must be considered as having been approved, and it thus became a final order and binding upon the parties.\\nThis court, in the Hogan Case, supra, did not specifically hold that Rule No. 31 was valid and within the power of the State Industrial Commission, but stated that respondent in that case in his brief admitted that to be the law.\\nThe Attorney General, in his brief for respondents, vigorously assails the validity of Rule 31 as being in direct conflict with the provisions of section 7315, O. O. S. 1921, the applicable provisions of which are:\\n\\\"Every vote and official act of the Commission shall be entered of record, and the record shall contain a record of each case considered and the award, decision, or order made with respect thereto, and all voting shall be by the calling of each Commissioner's name by the secretary, and each vote shall be recorded as cast.\\\"\\nIn King Drilling Co. v. Farley, 155 Okla. 97, 7 P. (2d) 862, it is held:\\n\\\"Every vote and official act of the Commissioner shall be entered of record, and the record shall contain a record of each case considered, and the award, decision or order made with respect thereto, and all voting shall be by calling of each Commissioner's name \\u00a1by. the Secretary, and each vote shall be recorded as cast.\\\"\\n\\\"The award, decision, or order of a Commissioner, when approved and confirmed by the Commission and ordered filed in the office (office of -the Commission), shall be deemed to be the award, decision, or order of the Commission. \\\"\\nIn I. T. I. O. Co. v. Ray, 153 Okla. 163, 5 P. (2d) 383, it is held:\\n\\\"Acts of .Industrial Commission upon matters within jurisdiction and required to be recorded, can only be established by record.\\\"\\nIn Makins Sand & Gravel Co. v. Hill, 151 Okla. 214, 3 P. (2d) 432, it was held:\\n\\\"An agreed statement of facts provided for in 7294, O. O. S. 1921, as amended by chapter 61, S. L. 1923, before the same is effective, must be approved by the State Industrial Commission by a majority of the Commission, as provided in section 7315, C. O. S. 1921.\\\"\\nUnder .the provisions of section 7315, supra, and the above decisions of this court, it clearly appears that the State Industrial Commission was without power to promulgate a rule which would make mere inaction upon a stipulation filed by the parties provided for in section 7294, C. O. S. 1921, equivalent to- an order -of the Commission approving such stipulation. The' plain provisions of the statute require the affirmative vote of a quorum of the Commission entered of record to make an order approving or disapproving such stipulation. The chairman of the State Industrial Commission evidently took this view of the law, as during the course of the hearing he called counsel's attention to the conflict between the provisions of Rule 31 and the provisions of section 7315, supra.\\nThere was therefore no final order approving the stipulation and receipt so as to make the same constitute a final award, and no change of condition was required to be alleged or proven in order to give tbe State Industrial Commission jurisdiction to. conduct a further hearing and award such compensation as the law and facts might justify.\\nPetitioners finally contend that there is no evidence that claimant was totally disabled from the time ha first returned to work. In this contention .petitioners must be upheld. While it is true claimant at one time in his testimony stated that he had been unable to work more than two days after he received the injuries, and the Commission apparently so found from this one statement, yet the entire record shows- this conclusion of fact cannot -be true. Claimant's first notice of injury showed that prior to the accident, which occurred August 3, 1929, his wages were $150 per month, and that he returned to- work on August 21, 1929-, at $150' per month. On cross-examination he admitted that he returned to work about August 22nd; that he was off for a few' days and then worked until March 5, 1930; that he was then off for a few days and again worked from March 13, to- June 7, 1930; that he then lost two months and nine days. Whether or not he returned to work after this two months and nine days for the same company, does not appeal-. Other witnesses testified as to having seen claimant at work in the company's shop at different times during this period. How long, if at all, he worked after August 16, 1930, does not appear. He did not testify that his wages were ever reduced by the company after he returned to work.\\nThe record conclusively shows that for at least ten months of the period for which claimant was allowed compensation for temporary total disability, he was working for the same company, though not doing the same kind of work, and was apparently drawing a full monthly salary of $150.\\nIt is well established by the decisions of this court that the purpose of the Workmen's Compensation Act is not to indemnify for any physical ailment, but for the loss of earning power and disability to work. To that end the industry is made to bear the losses due to the employee's injury. Compensation, while paid primarily by the insurance carrier, is born\\u00a9 ultimately by the consumer. The employer must pay the expense of carrying the insurance; naturally this expense is added to the cost of the articles produced. In the end the expense is borne by the consumer.\\nIt would manifestly be unfair to the industry to charge it with payment of compensation for the period during which the employee draws a full wage from such industry. This is not allowable except in cases of loss of a specific member or its use, for which the law, arbitrarily and with reason, irrespective of earning capacity, allows compensation.\\nFrom the record before us, it is impossible to determine for what length of time claimant drew full wages, and when, if at all, he ceased to draw same. It is likewise impossible to determine from the record to what extent claimant was disabled at the date of the hearing, though there is some evidence to the effect that at that time he was 90 percent. disabled, but it is impossible to determine from the evidence when he became so.\\nThe award must be and is hereby set-aside and vacated, and the cause is remanded to the State Industrial Commission for such further proceedings as may be necessary for a determination of the above questions of fact, and for an award in accord with the facts thus determined, consistent with the views herein expressed.\\nOULLISON, SWINDALL, ANDREWS, Mc-NEILL, and KORNEGAY, JJ., concur. LESTER, O. J., CLARK, V. C. J., and HEFNER, J., absent.\\nNote. \\u2014 See under ('2) R. O. L. Perm. Supp. p. 6248. (4) annotation in L. R. A. 1916A. 143; 28 R. O. L. 820.\"}"

okla/4301939.json

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+"{\"id\": \"4301939\", \"name\": \"W. J. WILSON and JOHN STUMP v. STATE\", \"name_abbreviation\": \"Wilson v. State\", \"decision_date\": \"1912-01-23\", \"docket_number\": \"No. A-1084\", \"first_page\": \"725\", \"last_page\": \"725\", \"citations\": \"6 Okla. Crim. 725\", \"volume\": \"6\", \"reporter\": \"Oklahoma Criminal Reports\", \"court\": \"Oklahoma Court of Criminal Appeals\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T00:11:07.903587+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. J. WILSON and JOHN STUMP v. STATE.\", \"head_matter\": \"W. J. WILSON and JOHN STUMP v. STATE.\\nNo. A-1084.\\nOpinion Filed January 23, 1912.\\nAppeal from Carter County Court; M. F. Winfrey, Judge.\\nW. J. Wilson and John Stump were convicted of violating the prohibitory law, and appeal.\\nAffirmed.\\nI. R. Mason, for plaintiffs in error.\\nSmith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.\", \"word_count\": \"163\", \"char_count\": \"927\", \"text\": \"PER CURIAM.\\nPlaintiffs in error were convicted at the January, 1911, term of the county court of Carter county on a charge of unlawfully keeping a place for the sale of intoxicating liquors, and were each sentenced to pay a fine of two hundred fifty dollars and be imprisoned in the county jail'for a period of ninety days. The appeal was properly perfected in this court on the 14th day of April, 1911. Upon a careful examination of the record we find no errors prejudicial to the substantial rights of plaintiffs in error, and the judgment of the trial court is therefore affirmed.\"}"

okla/45537.json

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+"{\"id\": \"45537\", \"name\": \"MOORE v. BOWERS et al.\", \"name_abbreviation\": \"Moore v. Bowers\", \"decision_date\": \"1913-07-22\", \"docket_number\": \"No. 5160\", \"first_page\": \"553\", \"last_page\": \"554\", \"citations\": \"38 Okla. 553\", \"volume\": \"38\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T20:34:38.311195+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAYES, O. J., and WILLIAMS- and TTTKNEE, JJ., concur; DITNN, J., absent.\", \"parties\": \"MOORE v. BOWERS et al.\", \"head_matter\": \"MOORE v. BOWERS et al.\\nNo. 5160.\\nOpinion Filed July 22, 1913.\\n(133 Pac. 1127.)\\nAPPEAL AND ERROR \\u2014 Abstract Cases. Abstract or hypothetical oases, disconnected \\u25a0 from the granting- of actual relief, or from the determination of which no practical result can follow, will not be determined by this court.\\n(Syllabus by the Court)\\nError from Superior \\u00a1Court, Garfield) County; Dan Huett, Judge.\\nAction by John C. Moore against Peter Bowers and others. Judgment for defendants, and pl-aintifl appeals.\\nDismissed.\\nJohn \\u25a0C. Moore, for plaintiff in error.\\nA. L. Zinger, for defendants in error.\", \"word_count\": \"361\", \"char_count\": \"2130\", \"text\": \"KANE, J.\\nThis cause comes on to be heard upon a motion to dismiss upon, among others, the following ground:\\n\\\"The decision of the Supreme Court in said cause would afford no actual relief and be followed by no practical results, for the reason that the only relief asked by the plaintiff in error is an injunction restraining the officers of the city of Enid from paying for certain fire apparatus purchased by them; that plaintiff in error filed no bond in the superior court, and no injunction, temporary or permanent, was ever issued by such court, and no restraining order was ever issued or even asked for; that subsequent to the -decision in the superior court in said cause refusing plaintiff an injunction, and prior to the institution of proceedings in error in the Supreme Court, the city officers of the city of Enid paid for said fire apparatus, and the same was delivered to the city of Enid.\\\"\\nThe foregoing is supported by the affidavit of the city clerk of the city of Enid, which comes before us entirely uncontroverted. The case seems to belong to the same class as Freeman v. Board of Medical Examiners, 20 Okla. 610, 95 Pac. 229, and the' great array of cases .which follow it, wherein it has been held that abstract or hypothetical cases, disconnected from the granting of actual relief, or from the determination of which no practical result can follow, will not be determined by this court.\\nThe cause must therefore be dismissed, without prejudice.\\nHAYES, O. J., and WILLIAMS- and TTTKNEE, JJ., concur; DITNN, J., absent.\"}"

okla/60670.json

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+"{\"id\": \"60670\", \"name\": \"C. W. Jarrell et ux. v. G. H. Block\", \"name_abbreviation\": \"Jarrell v. Block\", \"decision_date\": \"1907-09-20\", \"docket_number\": \"\", \"first_page\": \"467\", \"last_page\": \"474\", \"citations\": \"19 Okla. 467\", \"volume\": \"19\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T00:00:46.113352+00:00\", \"provenance\": \"CAP\", \"judges\": \"Gillette, J., who presided in the court below, not sitting; Pancoast and Garber, JJ., absent; all the other Justices concurring.\", \"parties\": \"C. W. Jarrell et ux. v. G. H. Block.\", \"head_matter\": \"C. W. Jarrell et ux. v. G. H. Block.\\n(Filed September 20, 1907.)\\n(92 Pac. 167.)\\nMECHANICS\\u2019 LIEN \\u2014 Property Subject \\u2014 Leasehold Estates. Under the statutes of this territory a mechanic\\u2019s lien will attach in any proper case to a leasehold estate; and the fact that the tenant may have the right to remove his building, fixtures and machinery from the leased premises, instead of lessening the lien, or preventing it from attaching to the leasehold estate, will, as we think, enlarge the lien, and enable the lienholder to obtain \\u00e1 greater interest in the leased premises. Neither will the fact that for some purposes, and under some circumstances, the buildings, fixtures and machinery put upon the leased premises by the tenant may be considered as personal property, have the effect of preventing the lien from attaching.\\n(Syllabus by the Court.)\\nError from the District Court of Comanche County; before F. E. Gillette, Trial Judge.\\nAffirmed.\\nHudson & Keys, for plaintiffs in error.\\nStevens & Myers, for defendant in error.\\nSTATEMENT OF THE CASE.\\nPlaintiff filed his petition in the district court of Comanche county, seeking a foreclosure of mechanic\\u2019s lien for $342.00, claimed to be due for labor and material furnished under sub contract for the construction of a frame dwelling on certain lots in Butler\\u2019s addition to the city of Lawton, owned by C. W, Jarrell, and which are more particularly described in the lien and in the petition. A personal judgment was prayed against L. H. Robinson, the contractor, but he was not served with summons, the return being not found.\\u201d The defendant, O. P. M. Butler, made no appearance, though personally served. Defendants C. W. Jarrell and wife filed their answer in which it was admitted that L. H. Robinson built a house upon the tract of land mentioned, but C. W. Jarrell and wife deny that C. W. Jarrell was then owner of said lot, but that he was only a sublessee of said lot of ground; that on the \\u2014\\u2014 day of November, 1902, said defendant subleased said tract from O. P. M. Butler, he being the original lessee from the'school land board of the territory of Oklahoma; that he was in possession of said premises as sublessee, the title to the same being in the United States or the territory of Oklahoma; that either the United States or the territory is the owner thereof; and that no contract was entered into between the plaintiff and the agent or trustees of either said territory or the United States. These answering defendants admit the service of lien, but they say that the name of the owner was not properly stated therein, and, among other things, allege payment of a portion of the account, and'also allege that the contract has never been completed nor accepted by them. The 'plaintiff filed reply, alleging that under the act of congress approved May 4, 1894, the board for leasing school, public building, and college-lands of Oklahoma Territory, on the 15th day of May, 1902, being fully authorized to so do, entered into a contract with O. P. M. Butler, allowing the subleasing of said lands in controversy, with other lands, for townsite purposes, and attaches a copy of the contract between said O. P. M. Butler and said board. Upon the issues thus framed, the cause, by agreement of parties, was referred to Hon. 0. H. Travers, who in due time qualified. The-time for making report ivas extended at various times, and the respective parties waived any irregularities there might have been in these orders by appearing before the referee, and after his report recognizing the same in various ways; each desiring the cause submitted on its merits. A trial was had before the referee, and all the proceedings before him are incorporated in the record at page 28 to 128. The report of the referee was duly made and filed, and is found in the record pages 28 to 38, in which judgment for plaintiff is recommended. Motion was duly made to confirm the report of the referee, by the plaintiff, and the defendants filed their motion to set aside the report of the referee and grant a new trial. The motion of the defendant to set aside the report of the referee and grant a new trial was overruled, and the motion of the plaintiff to confirm the report of the referee was-sustained. To all of which the defendant excepted and excepts, and the case is brought here for review.\", \"word_count\": \"2815\", \"char_count\": \"15973\", \"text\": \"Opinion of the court by\\nIrwin, J.:\\nIt is conceded by counsel for plaintiff in error that there are no disputed questions of fact in this case, and that the issues are entirely questions of law. The issues of law are stated as: First, a mechanic's lien does not affect school land, the title to which is in the government of the United States; second, the residence in question is personal property by the terms of the lease, and a mechanic's lien does not attach to personal property independent of the real property; third, that the trial court did not have jurisdiction of the subject-matter of the action. It will be observed that the foregoing legal proposition embraces all of the assignments of error, and it is conceded by counsel for plaintiff in error that a discussion of one of the assignments of error would be a discussion of all.\\nThe first proposition to be considered is: This land being school land, and the tenant in possession being a subtenant under the lessee from the school land board, and the title to the land being in the government of the United States \\u2014 that is, the fee being in the government of the United States \\u2014 is the person in possession the owner to that extent that mechanic's lien proceedings eonld be prosecuted against whatever interests he may have in the land? By the act of May 4, 1894, the congress of the United States granted to the territory the right to lease the school, public building, and college lands of Oklahoma Territory, under such regulations and laws as the legislature may prescribe, and until such time as the legislature might act, rules and regulations of the secretary of the interior theretofore prescribed should govern, except that leases should not require his approval. That the only action taken by the legislature was the adoption of council joint resolution No. 16, in the year 1895, which authorized the board to continue the leasing of lands in the event that the legislature failed to act, and by virtue of the act of congress and the joint resolution, the 'board for leasing school and other lands was authorized to lease the school lands within the territory, and that the tract in controversy was a part of lands reserved for school purposes. The record further shows that the said board in fact made a lease to O. P. M. Butler, which in terms allowed him to sublease for townsite purposes, the lease and contract to Butler being found on page 17 of the record, and the sublease from Butler to Jarrel on page 93 of the record. As a conclusion of law,' the referee found that a person holding even a leasehold estate was, for the purpose of the mechanic's lien law, the \\\"owner\\\" of the premises, and that the lien attached to his interest in the estate, whatever that might be, and to the buildings erected. We think this was a correct statement of the law.\\nIt is urged by plaintiff in error in his brief that the title to the land, and we presume he means by this the fee to the land, was in'the government of the United States. That proposition, it seems to us, makes no difference with the ease. It makes no difference whether the fee to the land was in the territory, or the United States. Congress had the right, undoubtedly, to create any estate in said lands it saw fit, if the title was still in the government. It had deemed it expedient to authorize the leasing of these lands under the policy inaugurated by the honorable secretary of the interior years since, giving, however, to the territory the right to legislate further thereon. The territory had spoken through its legislature and said that the leasing of the lands should be left to the board, whidh was in control of them in\\\" 1895, and in that board the power to lease has been vested. The power of that board to create leasehold rights cannot be doubted. It has been given by the government and confirmed by the territorial legislature. Conceding that the lease does not convey any portion of the fee of the land, it must-be seen that a lease executed by the government, or by its authority, is at least of equal dignity with a lease from an individual who owns the fee. Our mechanic's lien law in force at the time of the filing of the lease in controversy was that adopted from the state of Kansas, and, in so far as it affects the questions involved herein, is as follows :\\n\\\"Sec. 619. Any person who shall, under contract with the owner of any tract or piece of land, or with the trustee, agent, ' husband or wife of such owner, furnish material for the erection, alteration or repair of any building, improvement, or structure thereon, or who shall furnish or perform labor in putting up of any fixture, or machinery in or attachment to any such building, structure or improvement; or who shall plant any trees, vines, plants, or hedges in or upon said land; or who shall build, alter or repair or furnish labor or for building, altering or repairing any fence or foot walk in or upon said land or any sidewalk in any street abutting said land shall have a lien upon the whole of said piece or tra\\u00f3t of, land, the building and appurtenances in the manner herein provided for the amount due him for such labor, material, fixtures or machinery.\\\"\\nThe supreme court of the state of Kansas has, in our judgment, sufficiently answered the contention of plaintiff, in error as' to the construction to be put on this mechanic's lien law, long prior to its adoption by the legislature of this territory, and they have also answered the second contention, to-wit, that, as the buildings on this land were personal property, the mechanic's lien law would not attach to them. Under a well-settled and oft-repeated rule of this court, the construction given a statute by the state from whence it was taken, prior to its adoption here, is adopted with the statute, and in effect forms a part of it. This identical statute was construed by the Kansas court prior to iis adoption in Oklahoma, and the word \\\"owner\\\" therein was held to embody any interest in lands, no matter how slight. In the ease of Hathaway v. Davis, 32 Kan. 693, 5 Pac. 29, the Kansas supreme court say: \\\"About the only ground upon which it is claimed that it is not correct is the claim that a leasehold interest in real estate is not the subject of a mechanic's lien, or a lien for material or labor furnished jn making improvements upon real estate; and it is claimed that this is especially true in the present case, where the tenant has the privilege of removing all the improvements placed upon the leased premises. The statute with reference to this subject provides, among other things, as follows: 'Any mechanic, or other person, who shall under contract with the owner of any tract or piece of land, ' \\\" In the same opinion, the -court further says: \\\"The word 'owner' in the first section of the act is not limited in its meaning to an owner of the fee, but includes, also, an owner of leasehold estate. If the ownership is in fee, the lien is upon the fee; if it is of a less estate, the lien is upon such smaller estate. To hold that an owner in fee only is meant would be directly subversive of the policy of the act, and in a great degree render it useless. We think a mechanic's lien or lien for material or labor may attach in any proper case to a leasehold estate; and the fact that the tenant may have a right to remove his buildings, fixtures, and machinery from the leased premises, instead of lessening the lien, or preventing it from attaching to the leasehold estate, will, as we 'think, enlarge the lien and enable the lienholder to obtain a greater interest in the leased premises .\\\" \\\"Neither-do we think that the fact that for some purposes, and under some circumstances, the build ings, fixtures, and 'machinery put upon the leased premises by the tenant may be considered as personal property, have the effect of preventing the lien from attaching. For the purpose of the lien in such a ease, the leasehold interest will include the right to the buildings, fixtures, and machinery, and the right to remove them; and the whole of such leasehold interest, with the buildings, fixtures, and machinery, will be considered as an interest in the real estate, and, under the circumstances, the lien will attach to all. The statute giving liens for materials and labor expressly and specifically mentions buildings, fixtures, and machinery, and it was intended by the statute that such lien should attach to the buildings, fixtures, and machinery, as well as to the whole of the \\u2022estate owned by the party contracting for them.\\\" Block v. Pearson et al. (Reported in this volume) 91 Pac. 714.\\nBut it is claimed that the action of the territorial officials on making the lease in question amounted to an interference with the primary disposal of the soil. We are unable to see what objection there can be, since congress, later than the organic act referred to, permitted the action, and the organic act, if in conflict with the later expression of congress, must yield to it. It is apparent from this record that the plaintiff did not seek, the referee did not recommend, and the court did not give him any lien upon the property of the United States, or of the territory, but expressly asked that the interest of the defendant be taken, and the referee so recommended, and the decree of the court followed the recommendation. If congress at any time should withdraw its consent by a repeal or amendment of the law, and the defendant's interest was thereby lessened, the interest passed by the decree would likewise be affected, in other words, nothing but the exact interest of the defendant, be that great or small, was affected, and if the . interest which the United States and the territory expressly agreed should pass to the defendant was taken, and no more, we fail to see how it can be urged that the rights of either the territory or the United States were encroached upon.\\nThe only remaining assignment of error is that the court did not have jurisdiction of the subject-matter of the controversy. This assignment of error is insisted upon, upon the theory that as the title to the land in question was in the government of the United States, and that in determining this case the character of the land had to be determined, the court did not have jurisdiction to hear and determine that question. But this contention has been fully answered by the supreme court of this territory in the case of Parker v. Lynch, 7 Okla. 631, 56 Pac. 1082, in an opinion written by Justice Burwell, in which it is said: \\\"Jurisdiction is the authority by which courts and judicial officers take cognizance of and decide cases; power to hear and determine a cause. If the court has jurisdiction of the persons to the action, and the cause is the kind of a cause triable in such court, it has jurisdiction of the subject of the action, and has the power to render any rightful judgment therein.\\\" But when we consider this case, and bear in mind the fact that no interest of the United States in the land in question is sought to be- taken, and that the only effect of the report of the referee and the decree of the district court is to subject to the lien such interest as the defendant in the court below had in the land, the reason for the contention in the assignment of error that this court has no jurisdiction fails.\\nHaving examined the entire record, and finding no error therein, the judgment of .the district court is affirmed, at the costs of the plaintiff in error. _\\nGillette, J., who presided in the court below, not sitting; Pancoast and Garber, JJ., absent; all the other Justices concurring.\"}"

okla/60714.json

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+"{\"id\": \"60714\", \"name\": \"Will McIver, Constable, Grover Eller, Kee R. McKee, and F. O. Myers v. Williamson-Halsell-Frasier Company\", \"name_abbreviation\": \"McIver v. Williamson-Halsell-Frasier Co.\", \"decision_date\": \"1907-09-20\", \"docket_number\": \"\", \"first_page\": \"454\", \"last_page\": \"467\", \"citations\": \"19 Okla. 454\", \"volume\": \"19\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T00:00:46.113352+00:00\", \"provenance\": \"CAP\", \"judges\": \"Garber and Pancoast, JJ., absent; all the other Justices concurring.\", \"parties\": \"Will McIver, Constable, Grover Eller, Kee R. McKee, and F. O. Myers v. Williamson-Halsell-Frasier Company.\", \"head_matter\": \"Will McIver, Constable, Grover Eller, Kee R. McKee, and F. O. Myers v. Williamson-Halsell-Frasier Company.\\n(Filed September 20, 1907.)\\n(92 Pac. 170.)\\n1. ATTACHMENT \\u2014 Property Subject \\u2014 Goods Conditionally Sold. Where goods are sold and delivered upon condition that the title shall not pass to the vendee unless the price agreed upon be paid, the vendee has no attachable interest in the property until the performance of the condition.\\n2. SALES \\u2014 Rights' of Seller \\u2014 Purchasers\\u2014 Attaching Creditors\\u2014 Case. Where articles of merchandise are sold and delivered, and the terms of the sale are that the same are to be paid for \\u201cspot cash,\\u201d this means cash on the delivery of the goods, and where the same are delivered, and the vendee says to the vendor, \\u201cI will pay you as soon as I can check them up,\\u201d and when the agent of the vendor went to the vendee\\u2019s place of business five or six consecutive mornings after the delivery, and failed to find him in, but finally, after such repeated calls, he succeeds in finding him, and upon demand for payment is told by the vendee that he cannot pay for the goods, and for the vendor to take his goods back, and the agent of the vendor says, \\u201call right,\\u201d and immediately goes to the wholesale house of the vendor and reports the same, and on the same day comes back to the place of business of the vendee with the teams and wagons of the vendor to take away the goods, and finds the place of business of the vendee in the hands of a constable, who has made a levy upon the goods in question by virtue of a writ of attachment and refuses to give them up to, the agent of the vendor, Held, that, in an action of replevin, the vendor can recover hi-s goods as against such constable, or the attaching creditors of the vendee.\\n(Syllabus by the Court.)\\nError from the Probate Court of Oklahoma County; before Wm. P. Harper, Probate Judge.\\nAffirmed.\\nJohn 8. Hunter, for plaintiffs in error.\\nCrockett & Johnson, for defendant in error.\\nSTATEMENT OR RACTS.\\nDuring the year 1905, Williamson-Halsell-Erasier Company, defendant in error, was engaged in the wholesale grocery business in Oklahoma City, Oklahoma Territory. Sometime between the 1st and 13th of April, 1905, the defendant in error sold and delivered to one Joseph Piekford, a retail groceryman in Oklahoma City, Oklahoma, a bill of goods, the terms of which sale were cash. These goods were delivered to Piekford in the afternoon, at his usual place of business in Oklahoma Gity. Invoices were delivered with the goods. The next morning, the agent of defendant in error called upon Piekford at his place of business and demanded payment for the goods. He was then told by Piekford that he would pay for the same as he could check them up and compare them with the invoices. The agent of the defendant in error called at Pickford',s place of business on four or five consecutive mornings afterwards, but was not able to find him in. Finally, some days after the goods were delivered, at an early hour in the morning, about 6:30, he succeeded in finding Piekford in his place of business, and then again demanded payment for the goods, and was then told by Piekford that he could not pay for the goods, and that the defendant in error could take back their goods. The agent of the defendant in error said, \\u201call right,\\u201d and went immediately to the wholesale house of the defendant in error, and, as soon as he could secure teams and wagons, returned, on the same day, for the goods. On his return, he found the place of business of Pickford's was in the hands of Will Melver, constable, who had made a levy on the said goods by virtue of attachment in favor of Grover Eller, issued by J. J. Beall, a justice of the peace in Oklahoma City township, said levy having been made on the 25th day of April, 1905, and said constable refused to deliver the goods to the agent of the defendant in error. On the 28th day of April, 1905, Kee R. McKee and F. O. Myers, who were judgment creditors of said Piekford, caused executions to be issued on their judgments which had previously been obtained by them, and said executions were placed in the hands of Will Mclver, who on the same day levied said execution on the said goods, subject to the attachment levy of Grover Eller. On the 4th day of May, 1905, defendant in error commenced replevin proceedings in the probate court of Oklahoma county, Oklahoma Territory, to recover the goods from Will Mclver, constable, and on the 13th day of May, 1905, the plaintiffs in error moved the court to be allowed to intervene in said cause, and thereupon filed their separate answers to plaintiff\\u2019s petition. On the 5th day of October, 1905, the cause was tried by a jury, and a verdict returned for the plaintiff. On the 7th day of October, 1905, defendants filed their motion for a new trial, which was overruled by the court on the 17th day of October, 1905, and judgment entered on the verdict, to which exceptions were saved, and the case is brought here for review.\", \"word_count\": \"5285\", \"char_count\": \"29538\", \"text\": \"Opinion of the court by\\nIrwin, J.:\\nThere are many assignments of error urged by counsel for plaintiffs in error for a reversal of this case, but we think it is only necessary to notice three, to-wit: That the court erred in rendering judgment for the defendant in error; (2) that the court erred in giving instructions offered by defendant in error; and (3) that the court erred in not numbering and marking his instructions as required by the statute.\\nCounsel for plaintiffs in error cite several statutes of Oklahoma, and some decisions of the supreme court of Oklahoma, as well as many decisions from other courts, to sustain their assignments of error. But we think, after an examination of these statutes and these authorities, that they are not in point, for the reason that counsel for plaintiff in error starts out in this case with the assumption that there was an absolute sale upon credit which the defendant in error is seeking to rescind on account of fraud and misrepresentations practiced by the purchase?, and the authorities cited are all in cases where a sale was made on fraudulent representations of the vendee, by reason of which the vendor, on discovery of the fraud, seeks to rescind the sale. Clearly this is not such a case. Here there never was a complete or executed sale, because the purchaser never complied with his part of the contract. While the authorities cited by counsel for plaintiff in error correctly state the law in the abstract, yet they are not in point here in the ease at bar. The fallacy of the plaintiffs in error is based on their failure to recognize the .distinction between a case where the contract never matured into a complete sale because of the failure of the vendee to perform his part of the contract, and a sale which was executed and completed by both parties, and which the vendor subsequently seeks to avoid by virtue of fraud practiced upon him by the purchaser. The distinction is obvious. In the first instance, there is no complete and executed contract of sale; in the other instance, there is a complete and executed sale, voidabl\\u00e9 on the ground of fraud. .Now, we take the rule to be well established that where a sale is made, and where the terms of the sale are cash, this, among merchants, is understood to mean cash on the delivery of the goods; that in the commercial world there is no difference and no distinction between a cash sale, or what is known as \\\"spot cash sale,\\\" and a sale for cash on delivery. All of the evidence in this case shows, and in fact the proposition is undisputed, that this is what is known in commercial parlance as a 'spot cash sale;\\\" that is, that by the terms of the sale the ' vendee was to pay cash for the goods upon the delivery of the same. In such a sale, the title does not pass until the goods are paid for, and a party who delivers goods under and by virtue of such a contract for sale has the right to replevin his goods on failure of the vendee to pay the purchase price. In other words, the title to the goods does not pass until the condition of payment has been complied with.\\nThe supreme court of Kansas, in the, case of Dougherty v. Fowler, reported in 25 Pac. 40, had a similar question under consideration. That case was an action in replevin commenced by the plaintiff below in the district court of Bourbon county, to recover fifty tubs of butterine from the sheriff, who held the same by an order of attachment issued against the property of T. W. Price and D. B. Fabyan, who had been doing business in Et. Scott, under the name of T. W. Price & Co., but had sold out their business some time before the attachment was issued. On the 24th of November, 1885, T. W. Price went to Kansas' City, Missouri, and made an arrangement with the plaintiff below whereby he was to have shipped to him, at Et. Scott, 50 tubs of butterine, payable cash on arrival. The butterine was not made at the time. It' wajs to be procured from other parties, and .there was no selection made except by sample. The 'butterine was shipped on Friday, the 27th of November, and reached Ft. Scott the following morning, and' was immediately received by Price, and the freight paid, and stored in the cellar. The goods were invoiced in the usual way, followed by detailed weight of each separate tub, and written on the bill were the words: \\\"Terms cash.\\\" On Monday, the 30th of November, Price caused the butterine to be moved into a different part of the cellar from where it had been previously stored, and removed all the shipping tags, and on Tuesday morning, December 1st, wrote the plaintiff that he was unable-to pay for the butterine; that the goods belonged to the plaintiff; and he had placed them in the possession of a reliable party, who would take care of them until he could hear from the plaintiff. It appears from the testimony that this letter reached the plaintiff below at 8:30 o'clock on Wednesday morning, December 2nd, who concluded to accept the proposition contained in the letter, and to take back the shipment of butterine. It was in evidence that Price h^d owed the plaintiff below $10.70 upon some other dealings, and had paid out for freight on the merchandise $8.05. At noon of the same day the butterine was attached by one of the creditors of T. W. Price & Co. A trial was had in the district court, and, upon the conclusion of the evidence, the court instructed the jury to return a verdict for the plaintiff. It is insisted that in that case the letter written by Price on the 1st da yof December was not competent evidence, as not having been properly authenticated. Then the court said:\\n\\\"It is further insisted that 'mental conclusion' reached to take the goods back was not competent; that the only way to prove that the goods were taken back was what was in fact done. The acceptance of Price's offer was an affirmative act, and not a mere mental conclusion, as' assumed by the court below. This we regard as the decisive question in this case. Let us consider it. The facts are virtually undisputed. The goods were shipped to be paid for on arrival. They were received by Price, and the freight paid, and stored by him. Before the rights of any other parties intervened, the vendee said to the vendor: 'I cannot pay yon for. the goods, and I have placed them in the hands of a party who will take care of them until he hears from you. The goods are yours. I have done what I thought best.' Does this proposition, made by the vendee and received by the vendor, require affirmation upon the part of the vendor to make me transaction complete? An answer to this question is a decision of this case. If this proposition stood alone and in no way connected with what had preceded it, it would be less difficult of solution. We would say that an acceptance was necessary upon the part of the plaintiff-in error to make the offer binding and the transaction complete. But we must consider the whole transaction, from its inception to the transmittal of the letter, and say whether the title to the property in question ever passed to Price. The terms of the sale were 'cash on arrival,' or 'cash,' as expressed in the invoice. Now, the rule is that if goods be delivered before the price is paid, in compliance with the usage of trade, the delivery is conditional and until the condition is performed the vendee holds the goods in trust for the vendor, against all persons except bona, jido purchasers without notice. Story, Sales, \\u00a7213; Hussey v. Thornton, 4 Mass. 405; Marston v. Baldwin, 17 Mass. 606; Corlies v. Gardner, 2 Hall (N. Y.) 374; Reeves v. Harris, 1 Bailey (S. C.) 563. It seems from the evidence in the case that there were two concurrent conditions to make the sale complete: Delivery upon the part of the vendor, and payment upon the part of the vendee. This frequently occurs where goods are shipped by common carriers, as in this case to be paid for on arrival; and the failure to make payment will be regarded as a nonperformance of the condition precedent, upon the part of the vendee, and will entitle the vendor to reclaim his goods. Newm. Sales, \\u00a7 227. In Stone v. Perry, 60 Me. 48, it appeared that the plaintiffs were merchants in Boston, and a broker called and inquired the price of flour, and plaintiff asked whom it was for, and the broker replied: 'Butler,of Portland/ Plaintiff answered that he did not know him, but that he would sell the flour at $8.75 for cash. The broker went away, and soon returned, and said he would take the flour, which was shipped, and the next day a bill was forwarded to Butler and Co. with the words, 'Terms cash,' printed on the margin. On the following Monday one of the plaintiffs- went to Portland, and upon ascertaining that Butler & Co. had failed, and that the flour had been attached, replevined it from the officer. In that case the court said: 'If goods are sold conditionally, and delivery made, according to the custom of the trade, before the conditions are complied with in expectation of compliance, the delivery is also conditional, and no title vests in the purchaser until the performance of the condition; and, if he steadily refuses compliance, the seller may recover the goods by action of replevin.' Bauendahl v. Horr, 7 Blatchf. (U. S.) 548. In Ruseell v. Minor, 22 Wend. (N. Y.) 659, the court said: 'Where, under a contract for the sale of chattels, a delivery of a portion of the property sold was made to the purchaser under an agreement that a note should be given for the whole quantity upon the delivery of the residue at a future day, the delivery of the first part was held to be conditional, and that, on the delivery of the residue, and the refusal of the purchaser to give the note, and to deliver up the first parcel on demand, an action of replevin for the wrongful detention might be sustained. Where goods are sold to be paid for on delivery, if, on the delivery being completed, the vendee refuses to pay for them, the vendor has a lien for the price, and may resume the possession of the goods; and if, during the delivery and before it is completed, the purchaser sells or pledges them to a third person for a valuable consideration, but without notice to the original vendor, the lien of the latter will not be affected, and he may recover them from such subsequent purchaser.' In Palmer v. Hand, 13 Johns (N. Y.) 434, the court stated: 'When goods are sold to be delivered by the vendor without any stipulation for credit, it is his right to demand payment immediately upon their delivery, and, payment being refused, he may reclaim the goods. Ordinarily this right to Reclaim should be exercised promptly after refusal of payment.' In Morris v. Rexford, 18 N. Y. 552, it was said: T consider it a proposition plain in principle and sanctioned by authority that a vendor may reclaim his goods after delivery upon a sale for immediate payment, ii^ the vendee, on getting the property in his possession, refuses to make the payment. If there be no term of credit expressed or implied in the dealing, the delivery in such cases is deemed to be conditional, and subject to revocation on the refusal or failure of the purchaser to pay the price.' Mr. Justice Strong, in the Elgee Cotton Cases, 89 U. S. 180, quotes approvingly the rule from Benjamin on Sales, which he regards as well settled law in England, and also this country: \\\"Where the buyer is, by contract, bound to do anything as a condition, whether precedent or concurrent, on which the passing of the property depends, the property will not pass until the conditions be fulfilled, even though the goods may be actually delivered into the possession of the buyer.' Benj. Sales (Corb. Ed.) 359, 397, and authorities there cited. The doctrine of this rule seems to be almost universally sustained by the American courts. We reach the conclusion in this case that, by the terms of the contract, there was a concurrent condition of payment upon the part of the buyer, to be performed before title passed to him. The buyer having notified the plaintiff below that he was unable to pay, he was entitled to the possession of the property, and there was no necessity of his making any reply to the buyer's letter in regard to his inability to pay, so that he exercised the right to reclaim the goods within a reasonable time, which it seems from the evidence he did. It follows from this view of the law that there was no error upon the part of the court below in instructing the jury to find a verdict for the plaintiff.\\\"\\nAn examination of this record, and the evidence therein contained, will show a striking similarity between the case at bar and the case under consideration by the Kansas supreme court. The evidence shows that these goods were bought from the defendant in error on the express terms that they were to be spot cash \\u2014 that is, cash upon the delivery of the goods; that the goods were delivered .to the vendee at his usual place of business in the evening. On the following morning, the agent of the vendor went to the vendee and demanded payment. The agent was then in formed by the vendee that he would make payment as soon as he could check up the goods and ascertain if they corresponded with the invoice. On the next morning, the agent again went to the place of busine&s of the vendee, but was unable to find him in. The evidence shows that for five or six mornings in succession he went to the usual place of business of the vendee, but failed to find him. Something like eight or ten days afterwards, he went to the vendee's place of business at an unusual early hour in the morning, and found him there, and then again demanded payment, was then told by the vendee that he could not make payment for the goods, and that the vendor could take the goods back, which proposition was then and there accepted by the agent of the vendor, and immediately he' went to the wholesale house of the vendor for teams and wagons to take away the goods, and on the same day he returned with teams and wagons for the purpose of taking away the goods, and found them in the hands of the constable, who had levied on them by virtue of the attachment in this case, and the executions mentioned in the record. Now, the only difference between this and the Kansas case is that in that case there was no express acceptance of the proposition of the vendee to return the goods on account of inability to pay, while in this'case there was an express acceptance. In the Kansas case the vendee wrote that he could not pay for the goods, and that they were the property of the vendor, and that he would put them- in the hands of a third party. In the case at bar, the vendee told the agent of the vendor that he could not pay for the goods, and that he would turn them over, which proposition was accepted by the agent of the vendor, and, in that particular, we think, makes a stronger case than the Kansas case.\\nThis same identical question was before the supreme court of Utah in the case of Paulson v. Lyon, reported in 73 Pac. 510. In that case the facts were that on September 10, 1901, at Salt Lake City, Utah, defendant, who was a jeweler, entered into a contract with plaintiff, who was a show-case maker, for the pur chase of certain articles to be used in defendant's jewelry store. The contract, so far as material here, was as follows: \\\"This is to certify that I, the undersigned, have this day purchased from J. P. Paulson, of Salt Lake City, IJtah, the following described articles: (Then follows an enumeration of the goods which are described as plate glass wall cases, counters with plate glass show cases, etc.) All of the aboye described articles to be made of the very best mahogany. In consideration of the aboye, I promise to pay J. P. Paulson, or order, the sum of nine hundred ($900.00) dollars upon delivery of these goods.\\\" The articles mentioned in the contract were furnished by the plaintiff, and placed in the defendant's store, and were ready for use November 26, 1901, at which time the defendant opened his store and commenced using them. Immediately after the goods were put in and ready for use, the plaintiff demanded payment for the same, and for about a month made repeated demands of defendant, for payment of the purchase price, but defendant, on one pretext and another, put him off until December 28, 1901, without paying the amount due or any part thereof, excepting $37.50, which was paid on or about December 24, 1901. On December 28, 1901, plaintiff commenced an action to recover possession of the goods. The case was tried by the court without a jury, and after hearing the evidence, which showed the foregoing facts, the court found all the issues in favor of the defendant, and ordered judgment in his favor, and dismissed the plaintiff's complaint. The first and third findings are as follows: \\\"(1) 'That the defendant now is, and ever since about the 25th day of November, 1901, has been, the owner and in possession, and entitled to the possession, of all the goods and chattels described in the plaintiff's complaint. (3) That the defendant did not at any time withhold or detain any of said goods or chattels from plaintiff's possession to plaintiff's damage in any sum whatever.\\\" From this decision, the plaintiff appealed. The court says:\\n\\\"The contract under consideration expressly provides that the goods shall be paid for on delivery. The well-established rule is that where goods are sold, to be paid for on delivery, as was done in this case, the payment is a condition precedent to passing title, unless such payment is waived at the time, or subsequent to the delivery of the goods. 6 Ency. Law. (2d. Ed.) 456; 1 Mechem on Sales, 538; Dudley v. Sawyer, 41 N. H. 326; Leven v. Smith, 1 Denio (N. Y.) 571; Hammett v. Linneman, 48 N. Y. 399; Dougherty v. Fowler (Kan.) 25 Pac. 40, 10 L. R. A. 314 'To constitute a waiver there must not only be a delivery, but an intent not to insist upon immediate payment as a condition of the title passing.' Globe Milling Co. v. Minneapolis Eleve. Co. 44 Minn. 156, 46 N. W. 306; Mechem on Sales, 552. The important question in this case is: Does the record .show such intent, or a state of facts from which the intent could be reasonably inferred? The record shows that, immediately after the goods were put in respondent's store and were ready for use, ajopellant demanded payment, and for nearly a month thereafter made repeated demands upon the respondent for the purchase price, and without any unreasonable delay commenced an action to recover the property. We have made a careful examination of the record, and fail to find any evidence, whatever that tends to support the contention that Paulson said or did anything from which it can be inferred that he' intended to relinquish his title to the property before it was paid for in full, or that Lyon understood that the title had passed to him. In fact, Lyon himself testified that he only accepted the goods temporarily, and nowhere in the record does it appear that either Paulson or Lyon treated or regarded the same as absolute and unconditional. This being an action at law, if there were any evidence .whatever to support the foregoing findings, we would not disturb the judgment; but as the evidence is all one way, and shows that Paulson never waived payment, or relinquished his title to the goods, the case must be reversed.\\\"\\nNow, what is true in the Utah case is forcibly true in the case 'at bar. All the evidence in the case, in fact, the undisputed evidence in the case, is that this was a sale for spot cash, and the entire conduct and language of the defendant in error throughout this entire transaction negatives the proposition that he ever waived or intended to waive his right to demand cash payment as a condition precedent to the passing of title. We find: That immediately on delivering the goods he demanded payment; that he went there' on every morning . for five or six consecutive mornings for the purpose of demanding payment; and that as soon as it was possible to secure an interview'with the vendee he did demand payment, and then is informed that the vendee is unable to pay for the goods, and that he must take his goods back, which he then agreed to do. Now, there is no positive evidence in this record which shows whether or not, at the time of this agreement, the rights of any creditor had intervened. There is no evidence tending to show that this writ of attachment had been made-by the officer at the time the vendee informed the vendor that he must take back his goodfe. But we think we have a right to presume that there had not, from the fact that no one testified' that at the time of this conversation between the vendee and the-agent of the vendor, wherein it was agreed that the vendor should take the goods back, that there was any writ of attachment, or .that, anybody else other than the vendee was in possession of the goods, but the evidence does show that, on the same day when the agent of the vendor returned with teams and wagons of the-vendor to take possession of the goods under the terms of the-agreement, he then found, for the first time, that the same was in the possession of the officer. Hence we think it a fair presumption of fact that the levy by the officer under the attachment, shown by the record was between the time in the morning at 6:30, when the vendee and vendor had the conversation by which thevendee told the vendor that he was unable to pay, and the time in the afternoon, when the evidence shows the agent of the vendor went there to take possession of his goods. So we think it a fair-presumption from the evidence in the case that at the time the agent of the vendor demanded payment of the vendee, and was informed by the vendee that he could not pay, and that the vendor must take his goods back, no levy had been made, and the rights of no third person had intervened.\\nWe take it that the intervenors here, the attachment and ex ecution creditors, are in no better position, and have no greater rights than had the vendee, because our own supreme court, in the case of Central Loan and Trust Company v. Campbell Commission Company, reported in 5 Okla. 411 (bottom of the page), 49 Pac. 52 lay down this rule; \\\"Where property-is sold and delivered upon conditions that the title shall not vest in the vendee, unless the price agreed 'upon be paid within a specified time, the vendee has no attachable interest in the property until the performance of the condition.\\\" Drake on Attachment, \\u00a7 246; Buskmaster v. Smith, 22 Vt. 203; McFarland v. Farmer, 42 N H. 386, 19 Fed. Rep. 760; Lucas v. Birdsey, 41 Conn. 357.\\nNow under the law as laid dowh in this decision, and all of the decisions upon the subject that we are able to find, we think that the conclusion of the jury and the finding of the court that the plaintiff was entitled to recover his goods was correct, and, as the instructions of the court correctly state the law as laid down in this opinion, we think the instructions were eminently proper,, and correctly stated the law.\\nThe only remaining assignment of error is that the court erred in not numbering and marking its instructions, as required by the statute; but in-making this contention we think that counsel for plaintiff'in error has entirely overlooked the express provision of our statute. Wilson's Revised and Annotated Statutes of Oklahoma, volume 2, section 4462, page 1031, provides: \\\"When the evidence is concluded, and either party desires special instructions to be given to the jury, said instructions shall be reduced to writing, numbered and signed by the party or his attorney asking the same, and delivered to the court. The court shall give general instructions to' the jury which shall be in writing and numbered and signed by the judge if required by either party.\\\" Now, in this case the record does not disclose that any requirements or request was made by defendants or either of them for numbering of the instructions.. The instructions w-ere in writing, which is the essential thing. The failure to number the instructions,' there being no request, is not error, and at best, if error, would be harmless, and would be no ground for reversing the case, the instructions being otherwise correct.\\nHaving examined the entire record, and finding no error therein, and believing that substantial justice has been done, the decision of the probate court is affirmed, at the costs of the plaintiffs in error.\\nGarber and Pancoast, JJ., absent; all the other Justices concurring.\"}"

okla/618294.json

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+"{\"id\": \"618294\", \"name\": \"Barton vs Hulsey\", \"name_abbreviation\": \"Barton v. Hulsey\", \"decision_date\": \"1902-09-25\", \"docket_number\": \"\", \"first_page\": \"260\", \"last_page\": \"269\", \"citations\": \"4 Indian Terr. 260\", \"volume\": \"4\", \"reporter\": \"Indian Territory Reports\", \"court\": \"Court of Appeals of Indian Territory\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T23:26:30.050804+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Barton vs Hulsey.\", \"head_matter\": \"Barton vs Hulsey.\\nOpinion delivered September 25, 1902.\\n1. Indian Lands \\u2014 Landlord and Tenant \\u2014 Improvement Contract.\\nUnder Section 3, Act Congress June 28, 1898, (Curtis Bill) a non-citizen in possession of Indian lands under an improvement con tract, may, when sued for possession, show that he has not had possession for a sufficient length of time at a fair rental to compensate him for improvements made thereon, and the court may continue the tenant in possession in balancing the value of improvements and use of the lands.\\n2. Master\\u2019s Findings \\u2014 Based on Conflicting Evidence \\u2014 Conclusive on Appeal.\\nThe findings of a master are the same, in general effect, as the verdict of a jury, and where the evidence is conflicting, the findings are conclusive on appeal and judgment pronounced thereon will not be disturbed. \\u2022\\nAppeal from the United States Court for the Central District.\\nWilliam H. H. Clayton, Judge-\\nSuit by Mary A. Hulsey against A. J. Barton. Decree for plaintiff. Defendant appeals. '\\nAffirmed.\\nWarner & Buckley, for appellant.\\nT. N. Foster, for appellee.\", \"word_count\": \"2747\", \"char_count\": \"16598\", \"text\": \"Gill, C. J.\\nThe statement of the case is found in appellant's brief, on pages 1, 2 and 3, and is as follows:\\n\\\"This suit was begun on March 14, 1901, by the appellee filing a complaint on the chancery side of the docket against the appellant in the United States Court for the Indian Territory, in the Central District, at Totean. The complaint will be found at pages 1, 2, and 3 of the printed record, and as will b.e seen, it in substance sets out the following matter: That plaintiff was the owner and entitled to the possession of a certain farm or improvement located about five miles north of Fanshawe, and known as the 'Neise/ 'Cox, 'and 'Mise' places, and also as the 'Barton Farm.' That in 1890 Mise and Cox began to improve these places under contracts with the plaintiff, by which each agreed to improve farms thereon, and was to receive $5 per acre for clearing land, and a fair price for all other improvements, and were to pay plaintiff $10 per annum rental. The improvements were to be paid for by use of the lands at a fair rental value, and when so paid for the premises were to be the property of plaintiff. That about 1891 defendant obtained possession of premises by purchase from said Mise and Cox, with plaintiff's consent, and took . the place of said Mise , and Cox, and completed the improvements. That defendant has since been in possession of said premises, and on January 1, 1900, had received full compensation out of the lands for all improvements. That defendant owed plaintiff $60 on the $10 per annum stipulation, and that plaintiff had been damaged by the detention of said property during the year 1900 in the sum of $546, its rental value. That demand 'had been made for possession, and that plaintiff would lose the rental for 1901, \\u2014 which, added to the sums before mentioned-, makes the total of $1,152, \\u2014 with prayer for an accounting and recovery for whatever is found due plaintiff. The appellant answered the complaint on October 22, 1901, and his answer is to be found at pages 3 and 4 of the record, in which he states substantially the following, viz.: Admits plaintiff's ownership and Mise and Cox contracts, and that'defendant acquired contract as alleged, and alleges that defendant made same contract with plaintiff. Denies that plaintiff has been damaged in sum claimed or any other sums. Alleges that defendant built dwelling worth $500, dug two wells worth $167, planted orchard worth $32; that he cleared 84 acres of land, worth $420 for clearing; prepared the land for first crop (breaking), worth $178; and made and put up 112,000 rails, worth $1..50 per hundred. States how lands were cleared and put in cultivation. -Alleges payment of $72 on the $10 per annum stipulation; and finally claims there is still due for improvements, etc., $1,178, and claims right to retain possession until balance is paid for in rentals. The cause was thereupon referred to a special master, and after taking proof he reported against the defendant to the extent that plaintiff was entitled to recover the possession of the premises at the end of that year, and also recover a balance of $313.50, provided the rents of 1891 were included. Exceptions were filed, and sustained in part; so that judgment was finally given against defendant for $251.50.\\\"\\nThe special master, in making his report of this case, under the evidence found as follows:\\n\\\"Findings of Facts.\\n\\\" I find from the evidence that plaintiff is a citizen of the Choctaw Nation, and is the owner of the premises, and entitled to the possession, subject to defendant's claim for improvements, if the same is yet unpaid. I also find from the evidence that the defendant went into the possession of the premises in the year 1890, and with the consent of the plaintiff, under an improvement contract with the plaintiff, and is still in possession; and that plaintiff duly served a notice upon defendant to quit possession before bringing this suit, as required by law. I find from the evidence that the defendant is chargeable with rents for the premises in actual cultivation, fit for cultivation, as follows:\\nTo 10 acres from 1891 to 1901, inclusive, at $2.50 per acre per year, 11 years.................................................... $ 275\\nTo 10 acres from 1892 to 1901, inclusive at $2.50 per acre per year, 10 years............................................................ 250\\nTo rent 12 acres from 1893 to 1901, inclusive, at $2.50 per acre for 9 years......................-......................................... 270\\nTo rent of 16 acres from 1894 to 1901, inclusive, 8 years at $2.50 per acre per year.............................................. 320\\nTo 20' acres rent, from 1896 to 1901, inclusive, 6 years, at $2.50 per acre per year............................................ 300\\nTotal rents.................................................................. $1,695\\n\\\"I further find from the evidence that defendant is entitled to credit for improvements and labor made and done on said place, as follows:\\nBy value of one dwelling, known as the'Cox House'.... $ 200 00\\nBy value for Barton house........................................... 100 00\\nBy value for Chappel house...................r...................... 100 00\\nBy value for Brown house............................................ 75 00\\nBy value of one well 63 ft. deep................................... 75 00\\nBy value of one well 34 ft. deep...................................... 50 00\\nBy peach trees bought and set out.................,............. 32 00\\nBy 17,184 rails at $1.50 per hundred.............................. 257 50\\nBy 800 rails burned.................................................. 12 00\\nBjr 1200 rails burnt on west side....................... 18 00\\nBy 1200 rails burnt on back side.......................... 18 00\\nBy 800 rails burned at five different tintes.................. 12 00\\n13y 800 rails for washouts for 10 years.......................... 12 00\\nBy clearing 84 acres of land at $5 per acre...........420 00\\nTotal credits....... . $1,381 50\\nTotal rents.................................................._........ $>1,695 00\\nTotal credits............................................................... 1,381 50\\nBalance due pi........... . $ 313 50\\n\\\"I find from the evidence all of the matters stated in the above account, and so find that the excess of rents over the value of improvements is $313.50, and that the defendant is indebted to plaintiff in that sum. I find from the evidence that the con tention of plaintiff that there was a contract between plaintiff and defendant for clearing and breaking to be $5 per acre is not sustained, and that the usual price for clearing alone is $5 per acre, and that it is customary and reasonable to give the first crop for breaking the land and making it tillable.' I find from the evidence that $72 was paid by defendant to plaintiff on an additional contract for money rent of $10 per year, and that the same was not intended to be a payment in discharge of the usual rents herein charged defendant, and was discontinued after the Atoka agreement.\\n\\\"I find the law applicable to the above facts to be:\\n\\\"(1) That the $72 paid on the extra contract for $10 per year cannot be credited on rents herein charged, nor can payments not made after the Atoka agreement be recovered; and that, in the absence of evidence, it will be presumed that he received the consideration bargained for.\\n\\\"(2) That improvements bought by a tenant are in the same class with those made by him, as to right to payment.\\n\\\"(3 )That the defendant would be entitled to pay for rails in a fence that were destroyed by fire or flood without his fault, and for other rails to replace them, if necessary.\\n\\\" (4) That plaintiff is entitled to maintain his suit to recover possession of the premises on expiration of this year, and a judgment for $313.50 and costs.\\n\\\"The account is stated for 1901, the suit being filed March 14, 1901. I recommend that plaintiff be permitted to amend his complaint, or set up by supplemental complaint the claim for rents accruing in 1901 since suit filed, if he so desires; otherwise the amount of the rents for 1901 should be deducted from the amount above found due to plaintiff.\\\"\\nDefendant filed certain exceptions to the master's report, which are as follows:\\n\\\"Comes A. J. Barton, the defendant herein, and excepts to the findings of George A. Grace, special master, herein filed, and for exception says: That the charge of $2.50 as specified in said report, is unreasonable and unjust; that it is contrary to' the evidence, and without evidence to support it; that said charge is against the weight of the evidence. Defendant excepts to paragraph number one of said master's findings as to the law, and says that he is justly entitled to the credit of $72.00 therein specified. Defendant excepts to paragraph number four of said report, and says that it is contrary to the law and the evidence, and without evidence to support it. Defendant excepts to the recommendation of said master that plaintiff be permitted to amend his complaint, or set up by supplemental pleading the claim for rents accorded in 1901 since suit filed, if he so desires. Defendant says that each of the above-mentioned rulings and recommendations herein complained of is error. Defendant-further says that he ought to have judgment against the plaintiff for the sum of $254. Defendant prays that the errors herein complained of be by the court corrected, and for all other proper relief.\\\"\\nAnd the court made its order and judgment, which is as follows:\\n\\\"Now on this day this cause came on to be heard by the court upon the report of Geo. A. Grace, Esq., special master in chancery heretofore appointed by the court, the exceptions of the defendant thereto, and the evidence herein, and. the court having heard said report and exceptions thereto, and the evidence and argument of counsel, and being fully advised in the premises, doth sustain the exceptions to the master's report as to the first and fourth paragraphs thereof, doth sustain and approve the said master's report as to the remainder thereof. The court therefore finds that the premises in controversy are the property of the plaintiff, and that the defendant is indebted to the plaintiff for rents thereof in the sum of $251.50, and that the plaintiff will be entitled to the possession thereof on the 31st day of December 1901. It is therefore adjudged and decreed by the court that the plaintiff upon the 31st day of December, 1901, recover possession of the premises in controversy, to wit, certain improvements of about 100 acres of land under fence, being 80 acres in cultivation and the remainder in timber, known as the 'Barton Place/ about five (5) miles north of Fanshawe, I. T., and now In the possession of the defendant. It is further ordered that the fee of Geo. A. Grace, special master in chancery herein, be, and the same is hereby, fixed at the sum of twenty-five dollars. Whereupon, on the 6th day of November, being'one of the regular days of the October term of court, the defendant in open court filed his motion for a new trial in said cause.\\\"\\nDefendant filed his motion for new trial, which was overruled by the court, and appeal is prayed to this court.\\nThe errors complained of are: First, that the court erred in entering a decree for rents of 1901, for the reason that the year 1901 had not expired before the suit was brought, and for the further reason that the complaint was not amended, or supplemental complaint filed in accordance with the master's recommendation; second, that the finding of the lower court was not supported by the evidence. It will be observed that the court examined the exceptions of the defendant to the master's report, and sustained them in part and overruled \\u2022 them as to part. The partciular complaint of the defendant is to entering up judgment for the rents of 1901, the suit having been begun on March 14, 1901. It is a general rule that equity will follow the law. Where, as in this case, the law provides that all contracts shall cease after a certain time, as in the Curtis Bill, \\u00a7 23, (Ind. Ter. Ht. 1899, \\u00a7 57z), the contract existing between the plaintiff and defendant with reference to the possession of these lands must have been considered terminated by the'terms of the law; the defendants being non-citizens and the plaintiff being a citizen of one of the tribes. The only question for the court to consider under Section 3 of the Curtis Act (Ind. Ter. St. 1899, \\u00a7 57s) was as to the value of the improvements, reasonable rents, and length of time, if any, which would compensate the defendants for their improvements. The special master made a recommendation in the alternative that, if the defendants were allowed to continue in the possession of the premises, the reasonable rents therefore should be charged against the defendant for the year 1901, and the court approved this finding. Section 3 (\\u00a7 57s) of the Curtis Law is as follows: \\\"Provided always, that any person being a non-citizen in possession of lands, holding the possession thereof under an agreement, lease, or improvement-contract with either of said nations or tribes or any citizen thereof, executed prior to January first, eighteen hundred and ninety-eight, may, as to lands not exceeding in amount one hundred and sixty acres, in defence of any action for the possession of said lands show that he is and has been in peaceable possession of such lands, and that he has while in such possession made lasting and valuable improvements thereon, and that he has not enjoyed'the possession thereof a sufficient length of time to compensate him for such improvements. Thereupon the court or jury trying said case shall determine the fair and reasonable value of such improvements and the fair and reasonable rental value of such lands for the time the same shall have been occupied by such person, and if the improvements exceed in value the amount of rents which such person should be charged the court, in its judgment, shall specify such time as will, in the opinion of the court, compensate such person for the balance due, and award him possession for such time unless the amount be paid by claimant within such reasonable time as the court shall specify. If the finding be that the amount of rents exceed the value of the improvements, judgment shall be rendered against the defendant for such sum, for which execution may issue.\\\" We think, under above section, that the court was fully authorized to enter up this judgment, notwithstanding that the suit had been begun before the rents would be due for the year 1901; the court making provision by its judgment that the defendant be allowed to retain possession of the premises for that year . It has been held repeatedly by this court that the findings of a master, upon which judgment has been pronounced, are the same in their general nature as though the judgment were pronounced upon the verdict of the jury; and, where the evidence is conflicting with the report of the master, a judgment of the court below will not be disturbed. We see no reason to depart from this holding in this case. Martin Browne Co. vs Morris, 1 Ind. Ter. 495, (42 S. W. 423); Malting Co. vs Schroeder, 67 Ill. App. 560; Hayes vs Hammond, 162 Ill. 133, 44 N. E. 422; Dean vs Emerson, 102 Mass. 480; 14 Am. & Eng. Enc. Law (1st Ed.) 940, and notes.\\nJudgment affirmed.\"}"

okla/6247349.json

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+"{\"id\": \"6247349\", \"name\": \"DRENNAN v. LUSCHEN\", \"name_abbreviation\": \"Drennan v. Luschen\", \"decision_date\": \"1925-06-30\", \"docket_number\": \"No. 14484\", \"first_page\": \"123\", \"last_page\": \"125\", \"citations\": \"116 Okla. 123\", \"volume\": \"116\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T19:02:22.683571+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DRENNAN v. LUSCHEN.\", \"head_matter\": \"DRENNAN v. LUSCHEN.\\nNo. 14484\\nOpinion Filed June 30, 1925.\\nRehearing Denied Feb. 9, 1926.\\nPearson & Baird, for plaintiff in error.\\nH. L. Fogg and J. C. Snyder, .for defendant in error.\", \"word_count\": \"1840\", \"char_count\": \"10691\", \"text\": \"Opinion by\\nLOGSDON, O.\\nFor reversal of this case, plaintiff relies upon two propositions. His first proposition reads:\\n\\\"Since the defendant in his evidence admitted the execution of the uote sued on and admitted that he had not paid the same, but defended solely on the ground of fraud, the burden of proving fraud was upon him and the record shows that no fraud whatever was proved.\\\"\\nThis proposition raises and presents the question of the. sufficiency of defendant's evidence to sustain his allegations of fraud inducing the execution and delivery of the note.\\nIt appears from the evidence preserved in the record that Homer Peoples in March, 3918, wasa stockbroker and salesman, and that be owned about 2,500 shares of the Rainbow Lead & Zinc Company, which were pledged to the plaintiff, R. H. Drennan, as security for an indebtedness of $3,200. About March 1st of that year, the defendant, M. Lusehen, had sold out his grain elevator situated in the town of Piedmont. Immediately thereafter, Peoples appeared at Piedmont seeking to induce Lusehen to invest the proceeds from the sale of his grain elevator in stock of the Rainbow Lead & Zinc Company. Lusehen was -a farmer and knew nothing of the lead and zinc mining business, but consented to go with Peoples to Miami to look over the properties of this company. When they reached Miami, Peoples took him out to a mine, which was the property of this company, and introduced him to its president one Herring, who was on the ground and appeared to be in charge of the mining operations. The evidence does not disclose what, if any, representations were then made to Lusehen by Herring in reference to the properties of the company. Lusehen learned from Peoples that the plaintiff, R. H. Drennan, was the secretary of the company, and having had dealings with Drennan in Ihe grain business and knowing him by reputation, Lus-ehen told Peoples that he desired to talk to Drennan before he decided about purchasing the stock. Peoples and Lusehen then came to Oklahoma City on March 6, 1918, and went to the office of the plaintiff. There Peoples informed plaintiff that defendant was contemplating buying some of the stock, but wanted to get some information concerning the property from plaintiff before making the purchase. Plaintiff thereupon told defendant in substance that' the Rainbow Lead & Zinc Company owned three 40's near the center of the Miami lead and zinc field; that all of its machinery and equipment was paid for, and that the operations had been running about $200 a day net profit; that the company was solvent, owed no debts and was capitalized for $100,-000, fully paid; that he had about $40,000 invested in stock of the company, for which he would not take $3 per share; that he thought the company would make big dividends for the stockholders thereafter; that he considered the purchase of the stock by defendant from Peoples at $2.50 per share a good investment.\\nRelying upon these statements and representations. by the secretary of the company, -Mr. Lusehen paid to Peoples the sum of $2,500 in cash, and executed his note for $2,500 more in payments for 2,000 shares, The shares were to remain as a pledge to secure the payment of this note, fit is further shown by the! evidence that the. Rain1 bow Lead & Zinc Company owned leases on three 40's in the Miami field, and that ore was discovered in one of these 40's a short time before defendant bought this stock. On making this discovery, the stockholders of the Rainbow decided to organize a subsidiary to be known as the Ottawa Lead & Zinc Company, and which was capitalized at $100,000. The stock of this subsidiary was distributed among the stockholders of the Rainbow as bonus stock, so that at the date of defendant's purchase the capital stock of the company outstanding was actually $200,000 instead of $100,000, as represented to the defendant. While it is not clearly shown by the evidence, the inference is very strong that the stock sold to the defendant was some of this bonus stock, and not original stock of the Rainbow. No dividend/ was ever paid upon this stock. In January, 1920, the holders of about 87 per cent, of the stock determined to liquidate the company and did so. The entire stock and property of the company was purchased by Herring, its former president, for the sum of $21,000, and $15,000 of this purchase money was used to pay some kind of record indebtedness which it is claimed the Rainbow owed to the Ottawa, and tfie remaining $6,000 was distributed to the stockholders as a liquidating dividend, the note sued on being credited by Drennan with $60, which was defendant's 3 per cent, on his 2,000 shares. Plaintiff, Drennan, toon this note of the defendant from Peoples as a credit on the indebtedness which Peoples owed him and for which this stock was pledged at the time of this transaction. It is further shown that after the maturity of the note sued on in this action Peoples was still indebted to the plaintiff, Drennan, on the original $3,200 transaction between them.\\nIt is thus apparent from the evidence in the case that the plaintiff, Drennan, had a direct personal interest in making a sale or this stock pledged to him by Peoples, it is also apparent from this evidence that Peoples had been unsuccessful in his efforts to sell the stock to Lusehen .after an inspection of the. property at Miami, and that it was only after talking to the plaintiff, whom he knew by reputation and in whom he had confidence as a business man, and who was secretary of the company and in a position to state reliable facts regarding the value of its stock and holdings; that defendant was induced to part with his money. That the stock was in fact practically worthless is conclusively shown by the fact that the company was liquidated in less than two years thereafter and its entire stock and . holdings sold- for: $21.000._ Under the facts shown in the record it can not be said as a matter of law that the allegations of fraud and misrepresentation contained in defendant's answer are without support in the evidence. This being true, the verdict of the jury, finding in effect that the sale of the stock to the defendant was induced by fraud and misrepresentation, and that plaintiff is not an innocent holder of the note sued on for value and in due course of business, is reasonably sustained.\\nThe credibility of the witnesses and the weight and value to he given to their testimony was a question purely and only for the determination of the jury. In the case of American National Bank v. Halsell, 43 Okla. 126, 140 Pac. 399, this court said:\\n\\\"As fraud in all its shapes is as odious in law as in equity, and where the evidence of fraud is sufficient to satisfy the mind and conscience of the wrongful conduct charged, the finding in this matter will not he disturbed. In such cases this court will not review the evidence to ascerta'n where the weight lies.\\\"\\nIt is unnecessary to cite other authorities consonant with the Halsell Case, because the substance of the holding there has-been so often affirmed and approved by this court that the principle involved mav be said to be elementary in this jurisdiction.\\nPlaintiff's second proposition questions the correctness of certain instructions given by the trial court to the jury. These instructions are numbered 3, 6, 7, and 7-A. Instructions 3 and 6 are not considered to be subject to the criticism directed against them. Instruction No. 3 simple tells the jury that if Homer Peoples practiced fraud upon the defendant in the sale of the stock, and that plaintiff knew of such fraud, the jury should return a verdictl in favor of the defendant. Instruction No. 6 advises the jury if there was fraud practiced in the sale of this stock and that the plaintiff, Drennan, made the false -statements and representations charged, and that they were relied on by the defendant and induced him to purchase the stock, then and in that'event the verdict of the jury should be for the defendant. The complaint of instruction No. 7 is that it authorized a recovery of the $500 paid by defendant after the execution of the note sued on if the execution of the note and the sale of the stock'was procured by fraud, and it is insisted that there was no evidence upon which to predicate this instruction. The $500 was paid by the defendant in August, 1918, and Uie testimony shows that he knew nothing of the alleged fraud practiced upon him until after the liquidation of the company in January, 1920. This instruction is, therefore, not considered to be foreign to the issues raised by the evidence. Instruction No. 7-A reads:\\n\\\"You are further instructed that where an officer of a. corporation makes statements and representations as to its financial condition, the value of its stock and its immediate financial prospect, and amount of capital stock, are all matters peculiarly within the knowledge of the company, and when made with the view to induce another to buy stock in said company, are representa^ tions of matters of fact and not expressions of opinion.\\\"\\nThis instruction is considered applicable to the facts shown in the record in refer enee to the official position of the plaintiff with the company, his personal interest in having the stock of Peoples sold, and the statements and representations which he made to the defendant to induce him to buy such stock. Before plaintiff made these statements and representations to the defendant, he was advised by Peoples that defendant. wanted the benefit of his (plaintiff's) knowledge and information concerning the condition of the company and the value of the stock before purchasing same. This was tantamount to advising plaintiff that defendant was relying upon him not only as a business man, but as an officer of the, company, and his statements thereafter made with this knowledge were properly denominated by the court in its instruction as \\\"representations of matters of facf and not expressions of opinion.\\\" Hood v. Wood, 61 Okla. 294, 161 Pac. 210; Dalton v. Hopper, 74 Okla. 127, 177 Pac. 571.\\nUpon a consideration of the entire case, it is concluded that the instructions of the court, of which complaint is made, were not legally erroneous nor prejudicial to the substantial rights of the plaintiff, and that the-verdict of the jury is' reasonably supported by the evidence. The judgment of the trial court based upon this verdict should, there: fore, in all things be affirmed.\\nBy the Court: It is so ordered.\"}"

okla/6269234.json

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+"{\"id\": \"6269234\", \"name\": \"In re DILLARD'S ESTATE\", \"name_abbreviation\": \"In re Dillard's Estate\", \"decision_date\": \"1931-04-14\", \"docket_number\": \"No. 19779\", \"first_page\": \"168\", \"last_page\": \"189\", \"citations\": \"148 Okla. 168\", \"volume\": \"148\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T00:06:05.217185+00:00\", \"provenance\": \"CAP\", \"judges\": \"LESTER, O. J:, and RILEY, 0ULLISON,, SWINDALL, and McNEILL, JJ., concur.\", \"parties\": \"In re DILLARD'S ESTATE.\", \"head_matter\": \"In re DILLARD'S ESTATE.\\nNo. 19779.\\nOpinion Filed April 14, 1931.\\nBass & Hardy, James H. Mathers, Green & Pruet, McLean, Scott & Sayers, Cham Jones, and Bleakmore & Barry, for contestants.\\nC. B. Stuart, Charles A. Coakley, D. M. Bridges, J. H. Harper, and Thomas Norman, for proponent.\", \"word_count\": \"18843\", \"char_count\": \"103824\", \"text\": \"KORNEGAY, J.\\nThis is a proceeding in error coming from the district court of Jefferson county, Honorable E. L. Richardson being the trial judge. It was a proceeding to admit to probate the last will of Josiah Hamilton Dillard. He died on the 30th day of September, 1927. He signed the will on the 24th day of September, 1927. He was 08 years old when he signed the will. Originally he came from Mississippi, and settled in the Indian country, and had done business near where he died for a great many years. He was a cattle man, and engaged in farming; he had' oil interests and was a large real estate owner. He had been deputy sheriff of Carter county, was a man of high degree in Masonry, and had accumulated a very large fortune, consisting of lands, oil royalties, cattle and money in bank. He was a man of determination and strong will power.\\nHe had raised two families, or rather had raised one and had started on another before his death. He had trouble with his first wife, and' about 1922 she sued him for a divorce. In the divorce proceeding he gave her one-half of what they had at the time, mostly being deeded to her, parily to her adult children.\\nIn the argument it was claimed by the attorney for the proponent of the will that the amounts given to the older children were voluntary, while the attorneys who opposed the will argued that the amounts given the older children were practically forced as a result of the divorce procedure.\\nHe seems to have led' a very active life, but in the last years of his life, though he still pursued his business closely, his health was breaking. He evidently came under the care of Dr. Von Keller, who treated him at the hospital for mercurial poison and Bright's disease, but he got out of the hospital as soon as possible and did not seem to pay' much more attention to what Dr; Von Keller wanted him to do. However, he had a family physician, Dr. Boadway, who had been the family physician for about a year. He took sick at home. At that time he had two small children, one that was 20 months old at the time of the trial in this case, and one three and one-half years old, according to the testimony of the second wife.\\nHe was moved to the hospital by his doctor in order that he might get better attention than he was able to get at home. A professional nurse, Eva Claiborne, was furnished him. He continued however, to transact more or less business after he went to the hospital.\\nHe had a bookkeeper and office man, who had been in his employ for about six and one-half years. Erom time to time in the transaction of his business, the bookkeeper would come up to visit him, and make reports. He had been thinking of making a will for some time, and had been in consultation with an attorney, about 28 years of age, by the name of Thomas Norman. The father of this attorney had been his trusted' friend and advisor years before. The testator had all confidence in the young man, and he selected him to be his attorney, and he had filled this station for some years.\\nDr. Von Keller claimed that he had Bright's disease when he had treated him some time before. Dr. Boadway claimed that he did not have Bright's disease, but diagnosed his ailment early as being that of cancer of the liver with the stomach involved. Dr. Boadway attended him regularly twice a day while he was in the hospital.\\nThe nurse kept a chart showing his physical condition, his temperature, pulse and respiration, and also showing when medicine was administered to him, and when food was given, and occasionally would write remarks on it as to whether the patient was resting well or not. He gradually grew weaker. On the 23rd of September, 1927, the doctor advised him that 'his case was hopeless.\\nThe will that had' been thought of and discussed and partly prepared was then prepared in full, after suggestions had been made by the testator as to its general outline and some minute details. It was prepared by his trusted attorney, and there is not much evidence that anybody else knew much about what was in the will, except the testator and his attorney. The second wife seems to have been ignorant as to what was in it, though she was with the deceased at his bedside during his last sickness.\\nThe witnesses to the will were the doctor who attended him, the bookkeeper who was his confidential man, and who had carried on business negotiations for him while he was in the hospital, and two other persons, one of whom was a vice president of a bank of which the testator was a customer and in which he held a large deposit, and the other was an employee, of another bank of which the deceased was a customer and in which he had' large deposits at the time of his death. The wife and an older son were present when the parties came to attest the will, and they were requested by the deceased to leave the room, which they did. The will was made in duplicate. When the bankers came to witness the will, they were spoken to by the testator, and were asked to act as witnesses to the will. He did the same thing to his family doctor.\\nThe lawyer who prepared the will was the son of a life-long friend, and was one in whom the testator had implicit confidence. For quite a while.they had offices next door to each other in the Norman building. One of the copies of the will was returned to the lawyer and taken to the office, the other was retained by the testator.\\nThe chart kept by the nurse showed the \\u00ablate of the health of the deceased, and the progress of the disease, and when the period of exhaustion came. He died six days after the will was made, according to the chart. During the last two days he was very low, and' finally on the last day the chart says he was 'irrational.\\\"\\nThe will on its face appears to be fair. It was executed with all' the formalities prescribed by the statutes. It provided for every member of bis family, not omitting the divorced wife. The statement, contained in the will, shows that he devised to her the allotment of a deceased son by her that the testator had inherited. Aside from his devise, the property was devised and bequeathed to his heirs, the two small children getting the best of it. However, there was devised to each of the older children fully 20 times as much land as there is per head for the people of the state of Oklahoma if the land were all divided proportionately, 'besides a large amount of personal property, so that each of the elder children received under this will far more than the average person can hope to obtain in a lifetime.\\nThe will was offered for probate in the county court by Vida Dillard, who was named as executrix therein. It was attacked at once by the older children. The claim was made that the deceased did not have testamentary capacity, and that undue influence had been exercised; that the draftsman of the will, who was nominated by the testator to be the guardian of the minor children, would reap such a profit that the minor children should lose what the father had intended for them.\\nJust how the ease was tried in county court we are not advised, and as to the evidence that was introduced, we are not advised, except what sifts through from the evidence, and the manner of its being introduced, in the district court. There were very able lawyers on both sides, and every technicality the' law knows, appears to have been, appealed to in the progress of the trial in the district court. However, the questions involved were simple. The will was not intricate.\\nAs a matter of protection for his two-babies, the deceased nominated a lawyer, 28-years of age, to be what is ordinarily known as a testamentary guardian. Under the law the testamentary guardian must give bond, and the county judge does not have to appoint him unless he is a fit and proper person. The mother could raise serious objections, if she desired, to the appointing of such a guardian. In the event the person so named succeeds in being named by the county court, he would have to give a bond to cover everything that he handled. In the event of mismanagement he was subject to-removal by the county court, and on appeal, if the county court did not do right, the district court was there to clear it, and if the district court did not do right, this court is here to reverse, modify, and render judgments-affecting the matter. Under these conditions the young man, who rejoiced over the confidence that had been placed in him by the testator, would be most carefully hedged about, if he should undertake to betray the trust that he hoped to get, provided the county court was willing.\\nNothing appears in the conduct of the-draftsman to indicate any overreaching. There was some intimation by the attorneys of the contestants in the progress of the case that Norman was too young to handle such a matter. However, the Constitution tells us that men of his age are eligible to the office of district judge, and men of 21 years of age to that of county judge. It also says that to be a member of this court a man does not have to be older than 30 years, and we admit persons to practice law at the age of 21 years, and permit them to do as they will in their own matters as well as be the guide of others.\\nWhen we examine the surroundings of the testator and the testimony that was adduced at the trial in the district court, we find that the testimony to sustain this will is positive. It came from disinterested parties who were in a position to know, and did know, the mental condition of the deceased at the time of its making. .They had been observers of the deceased,, some for years, others for a short time, but all for a sufficient length of time to know full well his mental condition. They include his family doctor, and the nurse that had gone through with it, who had made a chart showing the steps in the progress of the disease that finally resulted in his death. Those charts were in evidence. They show clearly when coma came on. In addition to these there were business men who had observed other men in the line of work they were in for years, and thereby had gained a special knowledge as to the natural conditions of men, and of the testator himself.\\nThe evidence on the other side was largely negative, consisting of the testimony of two doctors that saw him after the will was executed, and then only for a little while. Even one of them thought he could make a contract, though he could not make a will. The courts seem to think the other way, that a man sometimes has capacity to make a will who does not have the mental capacity to make a contract.\\nDuring the progress of the evidence, it developed that the testator was a little anxious as to what the older children would do with what he had given them, having observed, probably, what they did with what he had given them before, but he made up his mind to chance it, and it turns out that before this controversy had ended, in fact by the time it lodged here, over half of the beneficiaries of the will had transferred their entire interest in the estate to the divorced wife, and the others save one, had transferred theirs to Max Westheimer. The divorced wife is now carrying on. Max Westheimer wants to quit and take what is given them under the will.\\nWe are called on to decide what should be done. In this matter the case turns on the mental capacity of the testator at the time of making the will. Two courts who saw and observed the witnesses and knew the parties have already decided that the mental capacity of the testator was sufficient to enable him to make a will, and thereby declare what he wanted to do with the remainder of his property. The will on its face appears to be fair. The testator was generous, but at the same time was careful to provide for the dependent little childien, and to safeguard their interests as much as possible.\\nWe cannot say that the evidence in this case points very strongly to mental incapacity of the deceased, in the light of the surroundings of the deceased, and of the opportunity of the witnesses to know and judge those things about which' they were testifying. It is true that some of the contestants testified that he did not know them. Perhaps they thought so, perhaps the man wanted, to rest. Naturally, suffering with the disease, and especially if it was cancer of the liver, the deceased would not be inclined to talk much'. However, to his nurse and to his doctor, and to his lawyer, and to his bookkeeper, he would be inclined to say what he had to say.\\nSome objections are raised to the testimony of some of the witnesses, but wo find nothing in these objections that would warrant us in setting aside the decision of these two courts.\\nThe evidence, admitted without objections, was ample and conclusive enough to sustain the action of the district court. It is accordingly sustained, and this cause is remanded with directions to proceed with the administration according to the lines of distribution laid down in the will.\\nLESTER, O. J:, and RILEY, 0ULLISON,, SWINDALL, and McNEILL, JJ., concur.\\nLUTTRELL, Special Judge, concurs.\\nHEFNER,, J., disqualified.\\nCLARK, Y. C. J., and ANDREWS, J., dissent.\"}"

okla/6279526.json

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+"{\"id\": \"6279526\", \"name\": \"McKown v. McDonald\", \"name_abbreviation\": \"McKown v. McDonald\", \"decision_date\": \"1928-05-01\", \"docket_number\": \"No. 18434\", \"first_page\": \"258\", \"last_page\": \"258\", \"citations\": \"130 Okla. 258\", \"volume\": \"130\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T02:39:43.330789+00:00\", \"provenance\": \"CAP\", \"judges\": \"MASON, Y. O. J., and HARRISON, LESTER, CLARK, and RILEY, JJ., concur.\", \"parties\": \"McKown v. McDonald.\", \"head_matter\": \"McKown v. McDonald.\\nNo. 18434.\\nOpinion Filed May 1, 1928.\\nGoode & Dierker, for plaintiff in error.\\nPark Wyatt and S. F. Bailey, for defendant in error.\", \"word_count\": \"131\", \"char_count\": \"775\", \"text\": \"HUNT, J.\\nThe identical question here presented was involved in 18426, Omer Me-Kown v. Sherman Haught, this day decided (130 Okla. 156), and by stipulation of the parties these cases were submitted on the same briefs. We have examined the record in the instant case, and find ample evidence to support the findings of the trial court andt the judgment rendered thereon. The decision in McKown v. Haught, supra, is therefore controlling here, and, upon authority of that case, it is ordered that the judgment therein be, and the same is hereby, affirmed.\\nMASON, Y. O. J., and HARRISON, LESTER, CLARK, and RILEY, JJ., concur.\"}"

okla/6293627.json

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+"{\"id\": \"6293627\", \"name\": \"SCHICHTEL v. TURINSKY et al.\", \"name_abbreviation\": \"Schichtel v. Turinsky\", \"decision_date\": \"1931-05-05\", \"docket_number\": \"No. 19927\", \"first_page\": \"296\", \"last_page\": \"296\", \"citations\": \"148 Okla. 296\", \"volume\": \"148\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-11T00:06:05.217185+00:00\", \"provenance\": \"CAP\", \"judges\": \"HEFNER. CULLISON. SAAUNDALL. AN.DREWS. and KORNEGAY. JJ., concur. CLARK, A. C. J.. and RILEY. J., absent. McNEILL. J.. disqualified and not participating.\", \"parties\": \"SCHICHTEL v. TURINSKY et al.\", \"head_matter\": \"SCHICHTEL v. TURINSKY et al.\\nNo. 19927.\\nOpinion Filed May 5, 1931.\\nPhil AV. Davis, Jr., for plaintiff in error.\\nClarence Campbell, for defendants in error.\", \"word_count\": \"513\", \"char_count\": \"2990\", \"text\": \"LESTER, C. J.\\nThis appeal is from a judgment of the district court of Tulsa counts', Okla., overruling a motion for new trial, which judgment also denies the motion of the plaintiff in error herein to vacate a judgment of the court purporting to assess cost and allowing attorneys' fees.\\nPlaintiff in error, Schichtel, brought an action against Emma Turinsky and others to prevent the enforcement of an execution in favor of said Turinsky and against Schichtel on a judgment of the justice of peace, which judgment was before the district court, and to have the judgment upon which said execution was based declared void. The action, No. 40422, terminated in a judgment adverse to Schichtel, and his motion for new trial in that cause was overruled, and notice of appeal to this court was given, and appeal lodged in this court. This court reversed that cause. See Schichtel v. Turinsky, 144 Okla. 240, 291 Pac. 84. AATiilo said appeal was pending in this court and supersedeas bond had been given to supersede said judgment, the said defendant in the court below attempted to proceed with the sale of certain personal property levied upon by the sheriff of said county. The court thereafterwards allowed a judgment for attorneys' fees and certain costs.\\nPlaintiff in error complains of the action of the court and assigns several specifications of error. However, we think that this cause may be disposed of upon the fourth assignment, which is as follows:\\n\\\"That the court erred in assuming jurisdiction to hear and determine on September 6, 1928, the claim for attorneys' fees or other relief, because the case was then pending on appeal in the Supreme Court.\\\"\\nWhile the above-mentioned cause of action was pending in the Supreme Court we do not think that the district court of Tulsa county, Okla., had jurisdiction to make and ' enter the order assessing the cost and attorneys' fees, and we so hold, for the reason that where there is a cause pending in the Supreme Court and super-sedeas bond having been executed and filed, the trial court is without authority to make any order which materially affects the rights of the parties, and if the trial court makes such an order, this court has heretofore held that the order is null and void.\\nIn the ease of Dooley v. Foreman. 94 Okla. 163, 221 Pac. 47. (his court stated:\\n\\\"AATiile the jurisdiction of n cause is in the Supreme Court by appeal, the trial court is without authority to make any order which materially -affects the rights of the parties; and if the trial court makes such an order, it is null and void.\\\"\\nSee, also, Short v. Chaney et al., 66 Okla. 268, 168 Pac. 425.\\nJudgment of the district court is reversed.\\nHEFNER. CULLISON. SAAUNDALL. AN.DREWS. and KORNEGAY. JJ., concur. CLARK, A. C. J.. and RILEY. J., absent. McNEILL. J.. disqualified and not participating.\"}"

okla/6352345.json

@@ -0,0 +1 @@
+"{\"id\": \"6352345\", \"name\": \"HICKS-HOLLIS RIG BUILDING CO. et al. v. LOCKE et al.\", \"name_abbreviation\": \"Hicks-Hollis Rig Building Co. v. Locke\", \"decision_date\": \"1932-06-07\", \"docket_number\": \"No. 22647\", \"first_page\": \"8\", \"last_page\": \"9\", \"citations\": \"158 Okla. 8\", \"volume\": \"158\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T21:48:46.496492+00:00\", \"provenance\": \"CAP\", \"judges\": \"RILEY, HEFNER, ANDREWS, and MC-NEILL, JJ., concur. LESTER, C. J., CLARK, V. C. J., and CULLISON and SWINDALL, JJ., absent.\", \"parties\": \"HICKS-HOLLIS RIG BUILDING CO. et al. v. LOCKE et al.\", \"head_matter\": \"HICKS-HOLLIS RIG BUILDING CO. et al. v. LOCKE et al.\\nNo. 22647.\\nOpinion Filed June 7, 1932.\\nHal Crouch and Philip N. Landa, for peti-ti|Oners.\\nAnton Koch, for respondents'.\", \"word_count\": \"901\", \"char_count\": \"5208\", \"text\": \"KORNEGAY, J.\\nThis is an original proceeding to review an award of the Sta.e Industrial Commission, which is as follows:\\n\\\"Now, on this 12th day of June. 1931, the State Industrial Commission being regularly in session, the above-styled cause comes on for consideration pursuant to a hearing held at Henryetta, lOkla., on May 16, 1931, before Inspector T. J. McOonville, at which hearing claimant appeared in person and by his attorney, Anton Koch, and respondent and insurance carrier for Hicks-Hollis Rig Building Company appeared through H. M. Hicks and attorney, W. K. Johnson, I. T. I. O. appearing not. The Commission, after reviewing the testimony taken at said hearing, inspecting the records on file in said cause, and being otherwise well and sufficiently advised in the premises, makes the following .findings of fact:\\n\\\"1. That on and prior to August 15, 1930, claimant was in the employ of respondent, and engaged in a hazardous occupation as the same is defined by the AVorkmen's Compensation Laws of the state of Oklahoma, and that on said date sustained an accidental personal injury arising out of and in the course of his employment by having his hip wrenched while dismantling derrick.\\n\\\"2. That since August 25. 1930, claimant has been, and was at the date of the trial, May 10. 1931. physically unable to perform any manual labor, as a result of said accidental personal injury.\\n\\\"3. That the average daily wage of claimant at the date of the accident was $14 per day.\\n\\\"4. That claimant, at the date of said accidental personal injury, wag employed by the Hicks-Hollis Rig Building Company.\\n\\\"The Commission is of the opinion, from a consideration of the above facts, that claimant is entitled to compensation at ibe rate of $18 per week, dating from August 25, 1930. to May 16, 1931, the date of the trial, being 38 weeks and amounting to $684', and continued thereafter at the rate of $18 per week, until further order by the Commission, all medical bills incurred as a result of said accidental personal injury, and continued medical treatment if the same be needed.\\n\\\"It is therefore ordered by the Commission, that wi.hin 15 days from date, the respondent, Hicks-Hollis Rig Building Company, or its insurance carrier, the Century Indemnity Company, pay to claimant the sum of $684 as above set forth, and continue to pay claimant the sum of $18 per week, dating from May 16, 1931, until further ordered by the Commission, pay ail medical bills incurred as a result of said accidental personal injury, and continue medical treatment, if the same be needed.\\n\\\"It is further ordered that within 30 days from date, respondent, Hicks-Hollis Rig Building Company, or its1 insurance carrier, the Century Indemnity Company, file with the Commission receipt or other proper report evidencing compliance with the terms of this order.\\\"\\nThe evidence in the case shows a failure to.give the written notice, but it also shows that the foreman knew of the accident. It shows furthermore that there is a difference in the estimation of men between $14 a day and $18 a week. The claimant had a fall with a weight on him sufficient to have produced most any kind of injury, and the evidence in the case indicates a disability resulting from the accident, though at the same time the evidence indicates that the claimant was continued on the payroll, though he claims not to have been able to work. The presumption is that the pay he received was at the usual rate.\\nThe accident occurred on the 13th of August, 1930, but the report of it was not made by the foreman to the company, though he evidently knew of the accident with its probable disability. The record is silent as to how much the claimant earned ar'ter the accident, and there is considerable conflict in the various reports as to when the accident occurred. Evidently, the employer, except constructively, was not notified, and when notified the date of the accident was at first given as October 1st instead of August 13th, an interim of some six weeks.\\nIt is admitted in the case by the claim ant's attorney that the award, is excessive, as it covers time fo<r total disability that it is evident the claimant was drawing pay for. Complaint is made of the State Industrial Commission not making a formal order excusing the written notice. However, the evidence is here, and it is patent that the foreman of the employer knew of the accident. As to why he did not report it until later, we are not advised.\\nIn view of the record, the award of the Commission is vacated, and the cause remanded to the Commission, with directions, to take proof as to what the claimant earned after he was) hurt, andi to ascertain his physical condition, and to make an award according to itg findings of fact, and in the event the award is in favor of the claimant, that due allowance he made for the money that he has received from his. employer since (he accident\\nRILEY, HEFNER, ANDREWS, and MC-NEILL, JJ., concur. LESTER, C. J., CLARK, V. C. J., and CULLISON and SWINDALL, JJ., absent.\"}"

okla/6370063.json

@@ -0,0 +1 @@
+"{\"id\": \"6370063\", \"name\": \"TIGER v. JEWELL et al.\", \"name_abbreviation\": \"Tiger v. Jewell\", \"decision_date\": \"1923-05-29\", \"docket_number\": \"No. 11811\", \"first_page\": \"34\", \"last_page\": \"37\", \"citations\": \"90 Okla. 34\", \"volume\": \"90\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T20:23:31.621805+00:00\", \"provenance\": \"CAP\", \"judges\": \"JOHNSON, C. J., and McNEILL, KANE,' KENNAMER, NICHOLSON, COCHRAN, BRANSON, HARRISON, and MASON, JJ\\u201e concur. \\u2022\", \"parties\": \"TIGER v. JEWELL et al.\", \"head_matter\": \"TIGER v. JEWELL et al.\\nNo. 11811\\nOpinion Filed May 29, 1923.\\n(Syllabus.)\\n1. Indians \\u2014 Lands\\u2014Removal of Restrictions \\u2014 Full-Bloods.\\nSection 9 of the act of Congress approved May 27, 1908, entitled \\u201cAn Act to remove restrictions from part of the lands of the Five Civilized Tribes and for other purposes\\u201d, removed the restrictions from land inherited by full-bloods, subject only to the approval of any conveyance thereof by full-blood heirs by the county court having jurisdiction of the settlement of the estate of the deceased allottee. ;\\n2. Same \\u2014 Validity of Deed \\u2014 Delayed Approval.\\nMarchie Tiger, a full-blood Creek Indian citizen, owned certain lands by inheritance. In November and December, 1912, he made deeds thereto to R. J. Gillan and N. B. Gil-lan, and .on March 12, 1913, filed petition in the county court having jurisdiction to approve said deeds. No action was then taken, but on September 8, 1913, the said deeds were approved. In the meantime, and on April 2,1913, a guardian of Marchie Tiger, as an incompetent, was appointed. Held, the approval of September 8, 1913, related back to the date of the conveyances and validated them.\\n3. Same \\u2014 Affirmance of Judgment.\\nRecord examined, and judgment of district court is affirmed.\\nError from District Court, Wagoner County ; Benjamin B. Wheeler, Judge.\\nAction by Marchie Tiger, an incompetent, by his guardian, Thomas Tiger, against Sallie Jewell et al- to recover land. Judgment for defendants, and plaintiff brings error.\\nAffirmed-\\nRobert W. Thomas and Frank A. Thomas, for plaintiff in error.\\nChas. F. Runyan and E. A. Summers, for defendants in error.\", \"word_count\": \"2698\", \"char_count\": \"15770\", \"text\": \"BRANSON, J.\\nThis appeal is prosecuted to reverse a judgment and decree of the district court of Wagoner county, Okla., quieting the title of the defendants on their cross-petition, against the plaintiff, who sued for the lands in question. Marchie Tiger, an enrolled full-blood Indian citizen of the Creek Nation, inherited four separate 160-acre tracts, which embrace all of the lands in lit-gation herein. On the 27th of July, 10OS, Marchie Tiger executed an instrument to James A. Harris which on its face purported to. vest in the said James A. Harris the title lo said property, to be held in trust by him for a period of five years \\u2022 from said- last- named date, for ihe purpose of conserving and protecting, renting, and collecting the rents arising therefrom, paying out the same to the said Tiger, and to the benefit of his family, and for the purpose of filing legal proceedings to remove alleged clouds from the title of the said Marchie Tiger to said lands.\\nSaid deed specifically provided:\\n\\\"Should it become necessary for the protection of said estate or in case it should be deemed by said trustee to be to the best interest of first party (Marchie Tiger) that portions of said land be sold at any time during the life of this trust, then and in such cases, said second party (James A. Harris) is authorized and empowered to make such sales as he may deem necessary and proper, and to execute all proper conveyances there-fox\\nOn the date of said deed, the said Marchie Tiger signed and caused to be filed in the county court of Wagoner county, Okla., that being the court having jurisdiction of the settlement of the estate of the deceased al-lottees of said land, a petition which recited that the petitioner was inexperienced in the management of property, and that he had theretofore clouded the title to his said property, and that he desired the clouds to be removed therefrom and the title cleared and perfected for himself, and for that purpose imposed special confidence in the grantee in said deed of trust, and therefore prayed the court to enter an order approving said deed, \\\"as provided by section 9 of the act of Congress approved May 27, 1908.\\\" The said county court on the same date entered an order, reciting that the petition came on for hearing, and that the petitioner was present in court requesting the approval of said deed, and that it was to the best interest of the said Marchie Tiger that the same be approved, and \\\"It is hereby ordered, adjudged and decreed by the court that the said deed be, and the same is hereby approved.\\\"\\nThe said grantee and trustee, Harris, took charge of all of said lands, and by suit and otherwise secured the removal therefrom of the clouds on the title of the said Marchie Tiger, collected the rents, and disbursed the same, for the benefit of the said Marchie- Tiger, none of which is complained of in this suit. The said deed to the said Harris was made at the instance of the attorney for the Greek Nation, of which the said Marchie Tiger was a member, and also with the sanction and approval ol' the representative of the Department of the Interior having general supervision in the interest of full-bloods and their lands, by virtue of the various acts of Congress touching the same, and particularly the act of May.27, 1908, entitled, \\\"An act for the removal of restrictions, etc., from part of the lands of the allottees of the Five Civilized Tribes\\\", etc.\\nOn the 30th day of November, 1912, Marchie Tiger executed a deed to a part of the land to Robert J. Gillam, and on the 18th day of December, 1912, executed a deed to N. B. Gil-lam for the remainder. On the 12th day of March, 1913, both the said deeds were presented to the county court of Wagoner counts', together with petition signed by said Marchie Tiger, for approval. Objecton was made by a representative of the Department of the Interior to the approval thereof, for the reason that the consideration was deemed by said representative to be insufficient. And later, to wit, on the 8th day of September, 1913, another hearing was had on the petition presented to the county court to approve said deeds, the consideration therefor being raised to the sum of $8,400, which was found by appraisement to be reasonable, and approved by the representative of the Interior Department.\\nOn the 2nd of April, 1912, the county court of Wagoner county entered an order appointing a guardian for Marchie Tiger, as an incompetent, in the person of one Conny Murphy. On the 7th day of July, 1913, and within the 5-year period from the date of the trust deed, the said James A. Harris executed, a conveyance, as trustee, to J. Robert Gillam. This deed wad approved by the Interior Department and by the county court of Wagoner county,' Okla-, on the 8th day of September; 1913, the consideration being the same $8,400 going to Marchie Tiger. The deed made by Marchie Tiger to Harris and the deed of Harris \\u00a1to J. Robert Gillam were each approved by the Secretary of the Interior. Later the said Conny Murphy resigned as guardian of the said Marchie Tiger, and one Thomas Tiger was appointed guardian, and this suit was instituted.\\nThe plaintiff, among other things, alleged that the said trust deed executed by Marchie Tiger, and the order approving the same were secured by fraud upon the county court, and\\u2014\\n\\\"The said Marchie Tiger was and is without power to create or establish a trust in this restricted land, and that at the' time of the execution of said trust deed, the said Marchie Tiger was a mental incompetent, not mentally capable of managing and conserving his said estate, and that the creation of said trust was not necessary, nor to his best interest, and that the approval thereof was in excess of the jurisdiction of the qounty-court; and that the deeds executed on the 30th of November and the 18th of December to ,the Glliams, should .be set aside, as having Been procured by fraud,\\\" etc.\\nThe. trial court found the issues in favor of the defendants and entered a judgment quieting the title _ of the respective defendants .to that portion of the land eajch owned. The parties appear in this court as they appeared in the court below. They, will therefore be referred to as the plaintiff, Marchie Tiger, and the defendants, the landowners.\\n\\u2022The alleged error of the trial court assigned, by the plaintiff, in general terms, is that the district court erred in rendering judgment in favor of the defendants, for the reason that the judgment was and is contrary to law and evidence.\\n. Upon this assignment, counsel for plaintiff mate two contentions: first, that on the 27th of July, 1908, the action of thie county court of Wagoner county on the pe-tiiion of. Marchie Tiger to approve the trust deed was in legal effect the appointment of James A. Harris as guardian of the estate of the said Marchie Tiger, as an incompetent ; and, second, that at the time of the approval of the conveyances from Marchie Tiger and from James A. Harris to ihe Gillams on the Sth day of September, 1913, which deeds so approved were executed in November and December, 1912, as aforesaid, the said county court had no power to approve said conveyances, and the approvals were without force and effect, for the reason that on the 2nd day of April, 1913, a guardian of Marchie Tiger had been appointed.\\nThe first proposition is without any merit, and does not demand any extended consideration. The only thing disclosed by the. record occurring on the 27th of July, 1908, was the execution by Marchie Tiger of the aforementioned trust deed to Harris; the filing of the petition in the county court praying the county court in the exercise of its authority as a federal agency, under section 9 of the. act of Congress of May 27. 1908, as aforesaid, to approve said conveyance. There was nothing in said petition which undertook to invoke the jurisdiction conferred by the statutes of the state..to 'appoint a guardian for a\\u00fc incompetent .person', and the. court never undertook to exercise any such authority. Hut the order, entered by the court was a mere approval of the trust deed, supra. The act of Congress of May 27, 1908, supra, provided in effect that all restrictions against alienation of inherited.land were-thereby removed. ' Section 9, however, limited the right of full-bloods to alienate, in this language ;\\n\\\"Provided, that no conveyance of any interest of any full-blood Indian heir in such land shall be valid, unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.\\\"\\nWe perceive no reason that could be assigned, under the phraseology of said act, why a' full-blood Indian 'who inherited land could not make any contract, euveying absolutely or in-trust his inheritance, Ihe condition of the said act, to wit, the approval of the proper court, being complied with. It would follow, therefore, the trust deed made to Harris conveyed to him the legal title in said land, and incorporated therein was tlie condition as aforesaid, authorizing the said trustee to sell and dispose of the same.\\nBut counsel for plaintiff in error plead and contend that the said Harris acquired no title to said property. Declining to in anywise concede this, we will accept it in disposing of this case, and it is therefore unnecessary to further comment upon the interest, rights, and duties of the said Harris touching the property.\\nWe go to the determination of the second contention of plaintiff in error, in the light of his contention that the said Harris acquired no interest in the real estate.\\nIt -will not be questioned that the approval of the county court having jurisdiction of the settlement of thp \\u00a1estate of the deceased allottees was necessary to make said conveyances to the Gillams effective. On the 12th of March, 1913, the said deeds were presented to the county court of Wagoner county, but were not approved, a representative of the Interior Department protesting because of the insufficiency of the consideration. On the petition filed March 12, 1913, the deeds were again presented to the county court of Wagoner county on the 8th of September, 1913, the consideration then offered being a sum approved by the representative of the Inferior Department, and the county court entered the order approving . the said conveyances. These, deeds, therefore, so approved vested the title in the said grantees. The only doubt of which, however, being due to the fact that on the 2nd day of April, 1913, the county court of Wagoner county, acting under the authority given it by the. statutes of the state appointed a guardian of the sajd Marchie Tiger, as an incompetent. ,We cannot perceive any good reason why the approval of the deeds in question should not- operate to convey the title 9f the said Marehie .Tiger .sought to be conveyed by Him \\\\by.:his deeds made long prior to the Appointment of the guardian, and no authorities are cited supporting this contention-in the plaintiff's brief. The statute of the state authorizing the appointment Of a guardian of an incompetent person is for the' p\\u00farp'ose of haying the control of the properties; of an incompetent in the .hands of on\\u00e9 inore capable in its administration,' to 5.\\u00a1the best interest of the owner thereof.\\nThe. object and purpose of secion 9 of the act of May - 27,. 1908, supra, in requiring the approval of (he county court to full-blood conveyances of inherited land, was likewise to safeguard the interest of the full-blood Indian heir. At the time the G-illam deeds were presented for approval, in March, 1913, no guardian of the said Marehie ; Tiger had been appointed. Had Ihe order been entered by the county court at\\\" that time, this phase of the questions injected into this ' case of course would never- have arisen. Any monies or properties arising therefrom would have been taken over -and administered by the guardian for the. benefit of the incompetent. The -approval having been delayed, and an additional consideration paid, which met with the sanction of the representative of the Interior Department, the guardian of the incompetent, and the county court, which resulted in the approval of the conveyances at a later date, to wit, Sepember 8, 1915, does not alter the effectiveness of the order of approval entered on the latter date. The Gillam deeds having been executed before any guardian was appointed, all that remained to convey the title was the approval of - the governmental agency, to wit, the county court by virtue of the aforementioned act of Congress.\\nThere is nothing in the state statute which purports to deprive the county court-of its power, acting as a governmental agency, ,to make valid such a conveyance of .a- full-blood Indian heir, under and. by virtue .of the authority conferred upon that co,\\u00fart by. section 9 of the act above men-(ioriecU The appointment of the guardian does not divest the ward of his ownership ip \\\"the,1,'real estate, but the guardian's care \\u00e1nd, custody thereof is dependent upon the condition of the property, as he finds it.\\n\\\"Marehie Tiger having done all within his power 'to convey the property prior to the appointment' of any guardian, the order appointing the guardian never nullified the deeds';:made- to the Gillams, nor superseded-the power .of the county court, aso the1 agency of the government, to make .the -said: deeds effective to fully convey the title by the \\u2022 approyal thereof. The order approving the conveyances having been . entered, it .re: - lates back to and vitalizes the same as of the date when they were executed, there intervening no equities of third parties. Pickering v. Lomax, 145 U. S. 310, 36 L. Ed. 816; Lykins v. McGrath, 184 U. S. 109, 46 L. Ed. 485; Almeda Oil Co. v. Kelly, 35 Okla. 525, 130 Pac. 931; Scioto Oil Co. et al. v. O'Hern, 67 Okla. 106, 169 Pac. 483.\\nThere, was no fraud, proven and no aile-gation or proof that Marehie Tiger was a person wholly without tinderstanding.\\nThe judgment of the lower, court quieting the title of the defendants is affirmed.\\nJOHNSON, C. J., and McNEILL, KANE,' KENNAMER, NICHOLSON, COCHRAN, BRANSON, HARRISON, and MASON, JJ\\\" concur. \\u2022\"}"

okla/6397207.json

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+"{\"id\": \"6397207\", \"name\": \"WHITEHEAD et al. v. COOK\", \"name_abbreviation\": \"Whitehead v. Cook\", \"decision_date\": \"1924-09-16\", \"docket_number\": \"No. 12574\", \"first_page\": \"282\", \"last_page\": \"283\", \"citations\": \"100 Okla. 282\", \"volume\": \"100\", \"reporter\": \"Oklahoma Reports\", \"court\": \"Oklahoma Supreme Court\", \"jurisdiction\": \"Oklahoma\", \"last_updated\": \"2021-08-10T18:40:58.497598+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WHITEHEAD et al. v. COOK.\", \"head_matter\": \"WHITEHEAD et al. v. COOK.\\nNo. 12574\\nOpinion Filed Sept. 16, 1924.\\n1. Injunction \\u2014 Bond\\u2014Liability.\\nAn injunction bond is given to secure to the party injured the damages he may sits-tain, if it be finally decided that the injunction ought not to have been granted. A judgment on the merits of the action against the party obtaining a temporary injunction is a final decision that the injunction ought not to have been granted.\\n2. Same \\u2014 Nominal Damages.\\nIn an action on an injunction bond, where no actual damages are shown, nominal damages are recoverable where it is shown that the injunction was wrongfully obtained.\\n3. Appeal and Error \\u2014 Preserving Error \\u2014 Instructions.\\n\\u25a0 In order to have instructions reviewed on appeal, it is necessary to except to each instruction complained of, and have the action of the trial court in giving each instruction and the exception thereto noted and signed by the trial judge, as provided by section 542, Comp. Stat., 1921.\\n(Syllabus by Jarman, C.)\\nCommissioners\\u2019 Opinion, Division No. 2.\\nError from District Court, Pittsburg County; T. P. Clay, Assigned Judge.\\nAction by Oscar Wayne Cook against James E. Whitehead et al. Judgment for plaintiff, and defendants bring error.\\nAffirmed.\\nGuy L. Andrews, for plaintiffs in error.\\nE. O. Marianelli and Chas. H. Garnett, for defendant in error.\", \"word_count\": \"1149\", \"char_count\": \"6894\", \"text\": \"Opinion by\\nJARMAN, C.\\nThis was an action on an injunction bond, resulting in a verdict in favor of the plaintiff for $40, on which judgment wac rendered, and the defendants bring error.\\nThe plaintiff, Oscar Wayne Cook, prayed a judgment against the defendant, James E.Whitehead, for $163.95, and thereafter, and on May 26, 1915, Whitehead commenced an action in the district court of Pittsburg county to recover the sum of $800, alleged to be due, and in connection therewith, Whitehead sought and obtained a temporary injunction, enjoining Cook from collecting the judgment of $163.95 until the right of the parties involved in that action could be determined. To procure the temporary injunction, Whitehead was required to give a bond in the sum of $500, which was given and the same was duly approved on May' 26, 1915, with Whitehead as principal, and J. G. Puterbaugh and S. H. Tanner as sureties. Said injunction bond was in the statutory form and provided that the principal and sureties thereto would pay to the defendaht \\\"all damages which he may sustain by reason of the granting of said temporary injunction, should it be held that .the same was wrongfully obtained.\\\" Cook filed an answer alleging, among other things, that he was not the owner of said judgment for $163.95, the collection of which was enjoined, but that he had, long prior to the filing of said suit, sold and assigned said judgment to the Oklahoma Mortgage & Investment Company. On August 15, 1916, said cause came regularly on for hearing on its merits and resulted in a verdict for the defendant Cook, on which judgment was rendered, and the further judgment was then rendered by the court dissolving and vacating the temporary injunction. No appeal was taken from this judgment and the same became final. This action was then commenced on the injunction bond by Cook against Whitehead and his sureties, to recover damages -for the wrongful issuance of said injunction.\\nThe first contention of the defendants is that the plaintiff could not maintain this action on the injunction bond, because there was no finding or judgment of the court that the injunction was wrongfully obtained. The court in the former case, in which said injunction was granted, after said cause was tried on its merits and decided adversely to Whitehead, merely entered a judgment dissolving said injunction, and made no finding as t\\u00f3 whether the same had been wrongfully granted; and the defendants urge that in the absence of such finding or judgment, that a right of action on the injunction bond for the suing out of said injunction did not accrue. With this contention we cannot agree for the reason that the final determination of the action on its merits, adversely to Whitehead, is equivalent to, and has the effect of, a final decision that the injunction ought not to have been granted. Fox v. Hudson et al., 20 Kan. 246,\\nThe defendants next contend that no judgment' for damages on the injunction bond could be recovered for the reason that the judgment, the collection of which was enjoined, was not owned by the plaintiff Oook. The evidence discloses that, prior to the time Whitehead sued out the injunction, Cook had sold and assigned the judgment, which Whitehead enjoined the collection of, to the Oklahoma Mortgage & Investment Company, and the defendants urge that the enjoining of the collection of said judgment did not affect the rights of Cook and could not in any way damage him. It is true, under such circumstances, that Cook did not suffer any actual damages by reason of said injunction, and could not recover actual damages for the wrongful issuing thereof, but, under section 6015, Comp. Stats. 1921, Cook was entitled to recover nominal damages on said injunction bond, and the judgment for $15 expenses and $25 attorney fees, totaling $40, expended in defending the injunction branch of the case, amounts to nominal damages. When Whitehead caused the injunction to wrongfully issue against Cook, and involved Cook in a lawsuit pertaining to said injunction, he breached his duty to Cook, and although no appreciable deteriment was caused Cook, yet, under section 6015, supra, Cook was entitled to recover nominal damages for the wrongful issuing of said injunction.\\nThe next contention of the defendant is that the court erred in refusing to give instructions Nos. 1 and 2 requested by defendants. Instruction No. 1, requested by defendants, instructs the jury to return a verdict in favor of the defendants and against the plaintiffs; and instruction (No. 2, requested by the defendants, is to the effect that the plaintiff was not entitled to recover judgment against the defendants, if the jury found that Cook did not own the judgment, the collection of which was enjoined. The error assigned by the defendants, in the refusal of the court to give said instructions, has been discussed and disposed of adversely to the contentions of the defendants in disposing of the other propositions heretofore discussed in this opinion.\\nThe defendants further contend that the court erred in giving certain instructions, but these instructions cannot be reviewed here for the reason that each of said instructions complained of was not excepted to by the defendants and signed by the trial judge as required by section 542, Comp. Stats. 1921. Alva Roller Mills v. Simmons, 74 Okla. 314, 185 Pac. 76; Security Ben Association v. Lloyd. 97 Okla. 39, 222 Pac. 544.\\nNo prejudicial error appearing in the record, the judgment of the trial court is affirmed.\\nBy the Court: It is so ordered.\"}"