bone. In answer to this argument, the Supreme Court of Minnesota, in Mohr v. Williams, supra, said: "The medical profession has made signal progress in solving the problems of health and disease, and they may justly point with pride to the advancements made in supplementing nature and correcting deformities, and relieving pain and suffering. The physician impliedly contracts that he possesses, and will exercise in the treatment of patients, skill and learning, and that he will exercise reasonable care and exert his best judgment to bring about favorable results. The methods of treatment are committed almost exclusively to his judgment, but we are aware of no rule or principle of law which would extend to him free license respecting surgical operations. Reasonable tinguish Mohr v. Williams from the case at bar, inasmuch as in that case the patient consented to an operation on the left ear, and it was performed on the right ear, while in this, the consent was to an operation upon the right foot, where it was performed. However, the operation was not performed in the manner agreed upon and in the manner consented to by the patient, and, as a matter of fact, the actual operation performed was without her consent. There can be no real distinction between the cases in principle. The same rule of law is applicable to each. It follows from this authority and upon reason and principle that if the contract was made between the patient and surgeon, that the patient had the right to insist upon a strict performance of it, that the removal of the sesamoid bone by the surgeon was with-latitude must, however, be allowed the physiout the consent of the patient, and was therefor unlawful and wrongful, and constituted a trespass upon her person. It is argued with earnestness that the sesamoid bone is not one of the bones of the human anatomy, inasmuch as the recognized authorities on anatomy, in naming and numbering the bones of the human body, do not include the sesamoid bone, and therefore the sesamoid bone was not within the contemplation of the parties at the time of making the agreement, and that its removal would not be a violation of the terms of the agreement, in any event. This argument overlooks the pertinent facts that it does not appear from the record that the defendant in error was conversant with anatomy or knew the names of the bones in her foot, and that it does appear that she knew there were bones there, and that she wanted to retain all of them, and was not willing that any of them, whatever its name, should be removed, and that she consented to the operation upon the express condition that no bones should be removed. The expert witnesses all agreed that the sesamoid bone was a bone and was found in the human foot, but that its exact location varied in different persons. We cannot say, as a matter of law, that the sesamoid bone was not within the contemplation of the parties at the time consent was given to the operation. This question was properly submitted to the jury for determination. Again, it is contended by the plaintiff in error, even if the contract was made, that the removal of the bone, under the circumstances, was not a violation of it, since the facts show this to be an emergency case, as this bone was found in an unusual place, and was unexpected, and when it was discovered, the patient being under the influence of the anesthetic, it was unsafe to stop the operation at that time and allow her to come out from under the influence of the anæsthetic so as to have obtained her consent to its removal, and that he was justified cian in a particular case; and we would not lay down any rule which would unreasonably interfere with the exercise of his discretion, or prevent him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency. If a person should be injured to the extent of rendering him unconscious, and his injuries were of such a nature as to require prompt surgical attention, a physician called to attend him would be justified in applying such medical or surgical treatment as might reasonably be necessary for the preservation of his life or limb, and consent on the part of the injured person would be implied. And again, if, in the course of an operation to which the patient consented, the physician should discover conditions not anticipated before the operation was commenced, and which, if not removed, would endanger the life or health of the patient, he would, though no express consent was obtained or given, be justified in extending the operation to remove and overcome them." It does not appear from the record that the operation in this case was of such a character as to bring it within the rule last above named by the Supreme Court of Minnesota. The operation itself was not designated by any of the expert witnesses as a major operation. It was represented by the plaintiff in error that it was of slight conse quence, and that it would not be necessary for the patient to remain in his hospital over 24 or 48 hours at the outside, and he testified, as to the time taken to perform the operation, that "I suppose the time I occupied in doing that was possibly 15 or 20 minutes, the actual work that completed the operation." We would not hold under this evidence, as a matter of law, that there was such an emergency existing as authorized the surgeon to proceed in this operation, after the discovery of this bone in an unusual and unexpected place, as to authorize him to remove it without the consent of the patient. As to whether or not such an emer the evidence for the jury. If the jury found | body serves some useful purpose, and that that the necessity which authorized the sur- the sesamoid bone in the defendant's foot geon to proceed to remove this bone without served a purpose, and its removal might have the consent did not exist, then his doing so resulted in injury, the testimony of the exwas wrongful and unlawful, and he is lia-perts to the contrary notwithstanding. There ble for whatever injury resulted to the patient from such unauthorized act. See, also, Pratt v. Davis, 224 Ill. 300, 309, 310, 79 N. E. 562, 7 L. R. A. (N. S.) 609, 8 Ann. Cas. 197. The Civil Court of Appeals of Texas, in an opinion handed down May 28, 1913, said, relative to the rule of law under consideration: "The law, as enunciated by the few courts which have passed thereon, is not as clear and satisfactory as it should be in cases of this character, but it seems to be reasonably established that a physician is liable for operating upon a patient unless he obtains the consent of the patient, if competent, and if not, of some one, who, under the circumstances, would be legally authorized to give the requisite consent. Of course, consent may be presumed from circumstances, without direct proof, but there must be consent in every case, except in an emergency when to delay to obtain consent would endanger the life or health of the patient." Rishworth v. Moss, 159 S. W. 122, at 124. Again, it is contended that the judgment cannot be sustained for any more than nominal damages, since there is no testimony that any actual injury resulted to the defendant in error from the removal of this bone. The plaintiff in error testified that this sesamoid bone was wedged in the joint, and that when he made the incision and discovered the bone that he knew it would be impossible to drain the joint without its removal, and it was necessary to drain the joint in order to effect a cure, and "after my incision down to the bone, I merely took a pair of scissors and cut closely around the bone and removed it in that way." All the other expert witnesses testified that in all their experience they had never found a sesamoid bone in the position that the plaintiff in error testified it was in this patient. However, they were unanimous in their opinion that this sesamoid bone did not serve any useful purpose in the foot, and its removal would not cause injury. As we understand, the value of expert testimony and the weight of it depends upon the experience and ability and the extent of the witness' opportunity for observing the result of similar cases under like conditions. Where the evidence shows, as in this case, that the expert never observed a similar condition, it seems that his opinion as to the effect of removing the bone, in the case at bar, might have had little probative force with the jury. In any event, the jury were not compelled to believe this testimony. Being composed of men of ordinary intelligence, they may have consulted their common experience, and reached the conclusion that every bone in the human was testimony that the foot was more or less deformed since the operation, that the joint was stiff, and that the patient could not wear a shoe for a long time thereafter, and that she had suffered almost constant pain in the injured foot since the operation. From the evidence, the jury might have found that the removal of this sesamoid bone was in a measure responsible for these unfavorable conditions (since the operation). The following excerpt from the decision of the Supreme Court of Alabama, in Alabama, etc., R. Co. v. Hill, 93 Ala. 514, 515, 9 South. 722, 724 (30 Am. St. Rep. 65), is pertinent to this question: "It is to be assumed that every physical endowment, function, and capacity is of importance in the life of every man and woman, and that occasion will arise for the exercise of each and all of them. And to the extent to which any function is destroyed, or its discharge rendered painful or perilous by the wrongful infliction of personal injury, is the party complaining entitled to damages? We can, in other words, conceive of no physical injury, wrongfully inflicted, whether entailing pain only, or disfigurement, or incapacity, relative or absolute, to perform any of the functions of life, which may not be made the predicate for compensation in damages." Also quoted with approval in 4th Sutherland on Damages, § 1241. The record shows that the foot which had been operated upon was exhibited to the jury at the trial in the court below. The plaintiff in error testified that he only made one incision in the foot. But the evidence produced in rebuttal shows that there were three scars on the foot, as exhibited to the jury; one made by the nail and two made by incisions; one scar on the side of the foot and two on the bottom. And on cross-examination of the defendant in error, it was asked when she first discovered these scars, and she said three days after the operation, and that she asked Dr. Rolater what he made that cut on the bottom of her foot for, and he replied, "for drainage." This testimony was not denied, and these scars were physical facts which were exhibited to the jury, and they might have raised a question in the minds of the jury as to whether the sesamoid bone was taken from the side of the foot, as testified to by plaintiff in error, or from the bottom of the foot, where the experts testified this bone was usually found. The amount of plaintiff's recovery, if she is entitled to recover at all, must depend upon the character and extent of the injury inflicted upon her, in determining which, the nature of the malady to be healed, and the beneficial nature of the operation should be taken into consideration, as well as the good faith of the defendant. supra. Mohr v. Williams, | days acted as the qualified acting mayor of The question as to the amount of the recovery, as well as the other disputed questions of fact involved under the issues in the case, were submitted to the jury, under instructions as to the law that have not been questioned. The amount of the verdict was reviewed by the trial court in passing upon the motion for a new trial. The amount of the judgment does not impress us as being in any sense excessive, and we find no good reason for disturbing the judgment appealed from, and conclude that the same should be affirmed. A person acting in the capacity of a public officer of a municipality cannot recover compensation as such officer from such municipality on the ground of an implied contract to pay what his service is reasonably worth. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 357-367, 369, 372, 374; Dec. Dig. § 162.*] 2. MUNICIPAL CORPORATIONS (§ 162*) FICERS RIGHT TO POSSESSION. OF A person acting in the capacity of a public officer of a municipality is entitled to only such compensation as may be given by some provision of law. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dec. Dig. § 162.*] Error from County Court, McClain County; W. H. Woods, Judge. Action by B. H. Rackley against the City of Purcell. Judgment for defendant, and plaintiff brings error. Affirmed. Wadlington & Wadlington, of Purcell, for plaintiff in error. J. W. Hocker, of Los Angeles, Cal., for defendant in error. WILLIAMS, J. This proceeding in error is to review the judgment of the trial court wherein the plaintiff in error, as plaintiff, on March 30, 1909, sued the defendant in error, as defendant, to recover the sum of $250 as fees accruing to him as mayor of the said defendant. Prior to the erection of the state the plaintiff was elected to the of fice of mayor of the defendant and qualified and acted as such. The petition in part declares as follows: "That prior to the adoption of the Constitution plaintiff's fees as mayor of said city were $50 per month, or about that sum; that after the adoption of the Constitution the city of Purcell appointed or elected a police judge, or police magistrate, who acted in that capacity, and plaintiff for the space of five months and nine cies made it necessary for him to act as mayor as aforesaid, and that the public demanded his services as such, and that his said services were necessary for common preservation of the peace and welfare of said city, and it was a public necessity for plaintiff to perform said duties as mayor of said city. Though plaintiff has often requested the payment for said services as aforesaid, the said defendant refuses to pay plaintiff; that plaintiff's services aforesaid was and is reasonably worth the sum of $250, the same being approximately what plaintiff was receiving before the adoption of the Constitution." Our attention has neither been called to any statute in force in the Indian Territory prior to the erection of the state or in this state since its erection that authorized such compensation, nor is it contended that any ordinance was in force at the time of the erection of the state that entitled him to recover said compensation. [1] A party seeking to fasten a claim on a municipality or any political subdivision for services as its officer must point out some provision of law authorizing the same. Unless such provision exists, the party is presumed as a matter of law to have performed such services from a sense of public or patriotic duty without any expectation of compensation. Whilst this rule may seem to work a hardship at times, yet it is salutary. If this safeguard did not exist, too many times raids would be made upon the public treasury and unjust burdens placed upon the taxpayers. It is better that an occasional hardship may fall upon an individual than that a precedent may be established under which the treasury may be filched and unjust burdens imposed upon the taxpayers. [2] A person acting in the capacity of a public officer is entitled to only such compensation as may be given him by some provision of law. This rule is founded upon a sound public policy and should be rigidly adhered to. Coggeshall v. Connor, 31 Okl. 113, 120 Pac. 559, 39 L. R. A. (N. S.) 81, Ann. Cas. 1913D, 577; Board of County Commissioners of Washita County v. Brett, 32 Okl. 853, 124 Pac. 57; State v. Hooker, 26 Okl. 467, 109 Pac. 527; Board of County Commissioners v. Twyford, 134 Pac. 968. It follows that the plaintiff's petition did | ty of Swanson, it was in effect a suit against not state a cause of action against the defendant, and that the demurrer thereto was properly sustained. The judgment of the lower court is affirmed. All the Justices concur. (45 Okl. 302) SAVILLE et al. v. TOLBERT, Judge of the District Court, et al. (Supreme Court of Oklahoma. Oct. 21, 1913.) (Syllabus by the Court.) QUO WARRANTO (§ 28*)-VENUE-COUNTIES. In an action in the nature of quo warranto to test the validity of the organization of a new county, the proper respondents are the persons who assume to act in a corporate capacity, and such a suit may be brought in the county in which the respondents or some one of them reside or may be summoned, or in any court of general jurisdiction to which they voluntarily submit themselves. [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 30; Dec. Dig. § 28.*] the de facto county, and that such a proceeding being a local action could be brought only in the district court of such Swanson county; that at the time of the quo warranto proceeding in the district court of Comanche county Swanson county was a county de facto, and was therefore as completely removed from the territorial jurisdiction of the district courts of Comanche and Kiowa counties, and from the judicial districts in which those counties were located, as it would be as a de jure county. We are unable to agree with counsel. In Armstrong et al. v. State ex rel., supra, it was contended that an order to dissolve Swanson county could not be entered in that cause, because the county was not made a party defendant; but the court, following a long line of decisions, held that the suit was properly brought against the persons who assumed to act in a corporate capacity, and that Swanson county was not a necessary nor a proper party. Article 5, c. 87, Comp. Laws Okl. 1909, prescribes the county in which actions may be brought. The various sections of that article provide where real actions-actions for the recovery of a fine, forfeiture, or penalty imposed by statute, actions against pub Original action for writ of prohibition by Joseph Saville and others against Hon. James R. Tolbert, Judge of the District Court of Kiowa County, and another. Writ denied. Joseph Beasley, of Snyder, and McAdams & Haskell, of Oklahoma City, for petitioners. J. F. Griffith, Co. Atty., and L. M. Keys, both of Hobart, and J. A. Fain, of Lawton, for relic officers for acts done by them by virtue spondents. KANE, J. This is an original application for a writ of prohibition. The proceeding itself is somewhat in the nature of a sequel to Armstrong et al. v. State ex rel., 29 Okl. 161, 116 Pac. 770, Ann. Cas. 1913A, 565, and the facts stated in that case necessary to an understanding of this will not be restated here. or under color of their office, actions on official bonds or undertakings of public officers, actions against foreign corporations, carriers, turnpike companies, domestic corporations, nonresidents, divorce actionsshall be brought, and the last section of the article (section 5589) provides that "every other action must be brought in the county in which the defendant, or some one of the defendants, reside or may be summoned." As the quo warranto proceeding of Armstrong et al. v. State ex rel., supra, does not fall within any of the designated causes of action, it must be covered by section 5589, supra. It follows that the respondents in that suit could be properly sued in the dis tion of their persons by service of process upon them or their voluntary appearance could be obtained. All the defendants appeared in person and by attorneys, and waived all objections which they might have had to the jurisdiction of the court, and later, after having invoked the jurisdiction of the lower court in vain, they sought to reverse its judgment by a proceeding in error in the Supreme Court. It seems that some considerable time after the decision in the Armstrong Case was handed down some of the usurping county officers who were parties defendant therein, together with a number of others who were not parties to that proceeding, sufficient to make up a full corps of county officers, at-trict court of any county wherein jurisdictempted to reorganize the disbanded county of Swanson; whereupon the county attorney of Kiowa county filed a proceeding in the district court of that county, of which the respondent, James R. Tolbert, is judge, wherein he prayed that said pretended county officers be enjoined from acting or pretending to act as county officers of Swanson county. Thereupon this proceeding was instituted by said pretended county officers upon the theory that the judgment rendered If the doctrine is accepted-that when, in in the former case was void for want of ju- a quo warranto proceeding, or one in the risdiction in the court that rendered the nature of quo warranto, the existence of same. It is contended that, whilst the for- a county is denied the proper respondents mer proceeding was nominally against the are the usurping officials who wield mupersons who asserted the right to perform nicipal powers, and to make the county a the duties and exercise the functions of the party is illogical, because thereby its existvarious county offices of the pretended coun- ence would be implied, which is the very fact *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes denied it seems to us that, by virtue of the | and that he had been adjudged to be the ownforegoing statute, the action against the er of said land at the March, 1911, term of usurping officials may be brought in the district court of any county where any of the defendants reside, or where they may be served with summons, or in any court of general jurisdiction to which they voluntarily submit themselves. It therefore follows that the writ of prohibition must be denied. All the Justices concur, except TURNER, J., absent. (41 Okl. 98) the district court, and that the plaintiff had no right in the land, and in making the same statement in their argument after the evidence was in. The record shows that these statements were made either in the opening statement of counsel or in the argument to the jury. It is true that the motion for new trial alleges the fact that they were made as ground for a new trial, but if they were made they were not preserved in any manner so as to bring them to this court. Therefore, so far as this court is concerned, they were not made, and the question cannot be con BILBY V. BROWN et al.† (Supreme Court of Oklahoma. July 22, 1913.) sidered. (Syllabus by the Court.) FORCIBLE ENTRY AND DETAINER (8 5*)-RIGHT OF ACTION-PROCUREMENT OF POSSESSION. Plaintiff was in possession of the land in controversy by his tenants. At the expiration of the term of his tenants, but before they had left the premises, the defendants, claiming to have rented the land from another claiming the land by title superior to plaintiff, moved upon the land without objection from plaintiff's tenants, and took entire possession as soon as plaintiff's tenants moved away, and refused to surrender possession on demand. Held, that plaintiff could maintain an action of forcible entry and detainer for the land. [Ed. Note.-For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 23-28; Dec. Dig. § 5.*] Commissioners' Opinion, Division No. 2. Error from County Court, Hughes County; P. W. Gardner, Judge. Action by Nicholas V. Bilby against William Brown and another. Judgment for defendants, and plaintiff brings error. Reversed and rendered. Lawson & Samples, of Holdenville, for plaintiff in error. Warren & Miller, of Holdenville, for defendants in error. The next ground for reversal urged is that the verdict is not supported by the evidence. As stated above, the evidence shows that the plaintiff was in possession by his tenants. The defendants entered surreptitiously and without his consent. There is a very strong indication in the testimony that they entered by collusion with his tenants; still there is no direct evidence to that effect. Our statutes of forcible entry and unlawful detainer are very similar to the statutes of Nebraska upon the same subject. See Brennan v. Shanks, 24 Okl. 563, 103 Pac. 705. In the case of Brown v. Feagins, 37 Neb. 256, 55 N. W. 1048, it was held that "a person who claims the paramount title to real property in the undisputed possession of another cannot, by surreptitiously obtaining possession thereof, place such former possessor at any disadvantage as to the assertion of his rights or the enforcement of his remedies in respect thereto." And it was held in that case that, where a person drove in through a gap in an inclosure around the premises and took possession, the person previously in possession could maintain action in forcible entry and detainer, through he was not actually on the premises when the defendant entered. A case very similar to the one now before the court is Estabrook v. Hateroth, 22 Neb. 281, 34 N. W. 634. In that case the defendant obtained possession immediately after plaintiff's tenant had vacated the premises. It was held that the plaintiff could recover. The case of Childress v. Black, 9 Yerg. (Tenn.) 317, is also somewhat similar to the case at bar. In Oklahoma City v. Hill, 4 Okl. 521, 46 Pac. 568, the sheriff went upon the premises occupied by the plaintiffs and arrested plaintiffs and took their furniture out of the building. The city was claiming the property, and, as soon as the sheriff had removed the plaintiffs from the premises, the policemen and city officers moved in. It was held that plaintiffs could recover possession in an action of forcible entry and detainer. The first and second grounds assigned as Some of the language of the court indicates reasons for a new trial are the misconduct that it was considered that the city ratified of counsel for the defendant in error in stat- the force which the sheriff used, but it is ing to the jury in their opening statement manifest that the city was in no way a party that the land belonged to John W. Gilliland, to the conduct of the sheriff. The true *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes ROSSER, C. The plaintiff, Nicholas V. Bilby, was in possession of the land described in the petition in this case, occupying it by his tenants, Robert and Rube Pollock. One Gilliland claimed the land under a deed from the heirs of Little Peter, a Creek Indian. In the month of November, 1910, about the time the Pollocks had moved from the land, Gilliland had the defendants, Brown and Bean, move upon the land and take possession as his tenants. The evidence shows that the two defendants moved their effects to the place before the Pollocks moved away, but the Pollocks made no objections to their entering and moved out immediately. The plaintiff brought this action in forcible entry and detainer to recover the possession of the land. There was a verdict and judgment for the defendants, and the plaintiff appeals. |