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(55 Okl. 686)

ST. LOUIS & S. F. RY. CO. v. CLAMPITT.* (No. 5148.)

(Supreme Court of Oklahoma. Nov. 30, 1915. Rehearing Denied Jan. 11, 1916.)

(Syllabus by the Court.)

therein, except the usual wear occasioned by the elements.

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

Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. .270.]

7. INSTRUCTIONS.

The charge in this case examined, and found free from error.

1. APPEAL AND ERROR 971-DISCRETION- 8. TRIAL 260-REFUSAL OF INSTRUCTIONS COVERED.

ABY ACTS EXAMINATION OF WITNESS QUESTIONS BY JUDGE.

-

The practice of the trial judge taking charge of a witness, and conducting a long cross-examination, is not to be commended. Still it is the duty of the judge to see that the facts are brought out; and, unless it is apparent that there has been an abuse of discretion, and that the trial judge has shown his belief in the untruthfulness of the witness, or has given an intimation of his opinion on the facts, it is not prejudicial error.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. 971.]

2. MASTER AND SERVANT 265, 285-INJURY TO EMPLOYE-NEGLIGENCE-PRESUMPTION. The mere happening of an accident to an employé does not raise a presumption of negligence, but where an accident happens to an employé resulting in his death, the manner of the occurrence and its surroundings may be shown, from which the jury may infer the manner and cause of the accident, if the inference is a reasonable one.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955, 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. 265, 285.]

3. MASTER AND SERVANT 285-INJURY TO BRAKEMAN-CAUSE OF ACCIDENT-QUESTION FOR JURY.

Where the evidence tends to show that a brakeman was killed by falling under a moving train, from which he had alighted in the performance of a duty, and there was evidence that the platform on which he alighted was defective in a manner that might have caused him to fall under the train, the question was properly left to the jury, although there was no direct evidence that the condition of the platform caused him to fall.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053, Dec. Dig. 285.] 4. TRIAL 169 EVIDENCE.

DIRECTION OF VERDICT

It is only when the evidence, with all the inferences that the jury can reasonably draw therefrom, is insufficient to support a verdict that the court is authorized to direct a verdict for the defendant.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 341, 381-387, 389; Dec. Dig. 169.] 5. MASTER AND SERVANT 274 DEATH OF BRAKEMAN-EVIDENCE OF CUSTOM.

Evidence that it was the habitual practice of brakemen at stations to alight from moving trains in the performance of their duties is admissible, especially when it is shown that it is impractical to perform such duties without get ting on and alighting from moving trains.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. 274.]

which are fairly covered by the charge, it is not Where special instructions are requested, error to refuse to give them.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.] 9. TRIAL 348-SUBMISSION OF SPECIAL IN

TERROGATORIES-RIGHT.

Under the provisions of article 7, § 21, of the Constitution, defendant is not entitled to have special interrogatories submitted to the jury, in addition to the general verdict.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 822, 823, 827; Dec. Dig. 348.] 10. MASTER AND SERVANT 297-DEATH OF SERVANT-ACTION UNDER EMPLOYERS' LIABILITY ACT-APPORTIONMENT OF DAMAGES. Under the provisions of Employers' LiabiliAct April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), the jury may return a general verdict in favor of the personal representative, and need not apportion the damages among the beneficiaries.

ty

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. 297.]

Commissioners' Opinion, Division No. 2. Error to District Court, Garfield County; James W. Steen, Judge.

Action by Amanda V. Clampitt, administratrix and personal representative of the estate of B. F. Clampitt, deceased, against the St. Louis & San Francisco Railway Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

ant in error as administratrix of the estate This was an action brought by the defendof B. F. Clampitt, deceased, for damages resulting in the death of her intestate, by the negligence of the defendant, and the action is brought under federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665). The petition is in the usual form, alleging that the plaintiff in error is a railroad corporation, engaged in interstate commerce, and that the intestate was a brakeman on a certain train which was carrying interstate shipments. The negligence on which the case was tried was that a platform at the station of Thomas, Okl., on the line of the road of the plaintiff in error, was defective, and when the plaintiff's intestate attempted to alight from the train at that point, owing to the defective condition of the platform, he fell under the cars of the train, and received injuries which resulted in his death. The answer was a general denial, and alleges contributory negli gence, assumption of risk, and also pleads cer

6. MASTER AND SERVANT 270-INJURY TO BRAKEMAN-EVIDENCE-SUBSEQUENT CONEvidence of the condition of a platform tain rules of the plaintiff in error, regulating three weeks after the accident is admissible the conduct of its employés.

DITIONS.

when it is shown that no change has been made The evidence on the part of the plaintiff

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

disclosed that the plaintiff's intestate was a brakeman on the freight train, engaged in interstate commerce, and that on arriving at the station of Thomas, he was riding on the engine; that arriving at Thomas, preparatory to taking water, he alighted from the engine at the station of Thomas for the purpose of examining the records in the bill box, to see if there were any cars at Thomas which the train on which he was employed was required to take up and carry forward in transit so as to get to their destination. The evidence further showed that the platform at this place was a timber platform,

which had been constructed in 1902, and was about 14 inches above the rails at this point; that the planks at this place where the plaintiff's intestate alighted were some of them rotted, and had holes in them, and that there were some nails at this point protruding above the surface of the platform, one of them as much as an inch and a half. There was also evidence that the planks in the platform would spring when a person trod upon them, as much as an inch and a half, which was caused probably by the stringers or sleepers under the platform being rotten. There was also evidence that the life of a platform of this character was from 10 to 12 years, and that this platform had been erected in 1902, and the accident occurred in January, 1912. There was no direct evidence as to how the plaintiff's intestate fell under the train, the evidence on the part of the plaintiff tending to establish that it was on account of the defective condition of the platform, by striking his foot against a protruding nail, or by reason of the spring in the platform, or by reason of some of the planks in the platform being higher than others; that is, some thicker planks than those used in the platform had been placed there in repairing it, which caused its surface to be elevated above the general level of the platform. The evidence of the defendant tends to contradict this evidence, and to show that the platform was in good condition; that there were no protruding nails, and that the cause of the fall of the plaintiff's intestate was that he lost his balance in alighting from the engine, and reeled along the platform for some 30 feet until he fell between the cars. The plaintiff in error also introduced its rules, which, as far as it pleads them, and therefore as we assume, are germane to the questions, are as follows:

"General Notice.

"To enter or remain in the service is an assurance of willingness to obey the rules.

"Obedience to the rules is essential to the safe ty of passengers and employés, and to the protection of property.

"Employés in accepting employment assume its risks.

"Rule No. 630. All persons entering into or remaining in the service of this company are warned that the business is hazardous, and that in accepting or retaining employment they must assume the ordinary risks attending it. Their attention is especially called to the fact that

they are employed and retained with the express understanding and agreement that, in considerassume all risks of injury, which may result to ation of the compensation paid them, they will them by reason of any act, negligent or otherwise, done by any person employed by the company in the operation or maintenance of its of service such person may be engaged in. railway, regardless of what department or line

"Rule No. 631. Each employé is required to be responsible for his own safety, as well as to his fellows. Employés of every rank and grade exercise the utmost caution to avoid injury to are wanted to see for themselves before using them that the rolling stock, machinery or tools which they are required to use are in safe condition or that they are so put before using. "Rule No. 632. The company does not require or expect its employés to incur any risk from which, by the exercise of their judgment and personal care, they can protect themselves, but take time and use the means necessary to, in all enjoins upon them and demands that they shall cases, do their duty in safety.

"Rule No. 636. It is alike dangerous to assume that signals given to the engineman or fireman have been seen, and if seen will be obeyed-when obedience to those signals on the part of the engineman or fireman is essential to the safety of an employé in the performance of his duty. He must know that the signal has been seen, understood and obeyed, before placing himself in a dangerous position-otherwise, without such knowledge he assumes all risks of danger arising from any misunderstanding or disregard of signals.

"Rule No. 637. Employés are forbidden to stand on track and jump on engine or cars as they approach them, and are warned not to jump on or off trains or engines moving at a tion to uncouple them, or to follow other danhigh rate of speed or to go between cars in mogerous practices."

After the evidence was in, the court charged the jury, and among its instructions excepted to are the following:

"(4) You are instructed that under the federal law it is further provided that any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from liability from negligence of the kind here charged by the plaintiff against the defendant, shall to that extent be void; but you are instructed that if, in fact, the said B. F. Clampitt knew, or by the use of ordinary care should have known, of the risks and hazards in question that resulted in his injury or death, if any, then the plaintiff Clampitt's death resulted from the ordinary dancould not recover. Nor could she recover if gers of his occupation, as these risks he assumed; but any peril due to the neglect and carelessness of the defendant and of which the said Clampitt could not learn by the use of ordinary care were not assumed by him.

"No. 5. Before you can find for the plaintiff it must appear from the evidence that the said B. F. Clampitt did not assume, as herein explained, any of the risks or dangers that resulted in his injury and death, and that at the time of such irjury and death, the said B. F. Clampitt was injured and killed as the result of a defective platform of defendant's as charged, while assisting the defendant railroad company in carrying on interstate traffic, that is, traffic between one or more states, and in maintaining and operating an interstate railway belonging to defendant; that is, a railway extending continuously from one state to another, including the state of Oklahoma, and upon which the defendant was engaged in carrying on an interstate business as charged."

"No. 2. You are instructed that by virtue of an act relating to the liability of common carriers of a railroad to their employés enacted by

the Senate and House of Representatives of the United States of America, it is provided that every common carrier by railroad, while engaged in commerce between any of the several states of the Union, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, or other equipment; and it is further enacted that the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages (in case of plaintiff's recovery) shall be diminished by the jury in proportion to the amount of negligence attributable to such employé. Now, so far as the foregoing law applies to the rights of plaintiff to recover herein, you are instructed that the railway company was required to use ordinary care to furnish its employés a reasonably safe place in which to perform their work; and, in this connection, you are instructed that, if you find from a preponderance of the evidence that at the time and place of the alleged injury to and death of the said B. F. Clampitt, the defendant's said depot platform at Thomas, Okl., was, and for some weeks prior thereto had been, to the knowledge of the defendant, defective and ursafe for ordinary use by defendant's brakeman and employés while rightfully engaged in the performance of their duties, because of loose boards therein, containing rotten places and protruding nails at the particular places in question, as charged, and that the defendant was negligent, as charged, in so maintaining said platform in said condition, and that such negligence directly, proximately, and materially contributed to the death of said Clampitt, as charged, then you may find for the plaintiff and against the defendant, subject, however, to all of the other instructions herein given you."

The plaintiff in error also requested the following instructions, which were refused, and their refusal is assigned as error:

"One who voluntarily enters the employ of another assumes all of the ordinary risks incident to such employment and if injured while so employed by reason of a risk assumed, he cannot recover; neither can his personal representative recover in the event of his death."

"In entering the employ of the defendant, the deceased impliedly agreed, aside from his written agreement, to assume all of the risks inci

dent to his employment as a brakeman. If the station platform at Thomas was in a defective condition at the time the deceased was injured and he knew of its being in such condition, or by the exercise of ordinary care he should have known of such condition, and he voluntarily remained in the service of defendant, then he assumed the risk of being injured therefrom and, if injured while so employed, the plaintiff herein cannot recover."

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ous, and he adopts the dangerous way and is injured, he is held to have assumed the risk of being injured thereby, and cannot recover. If you believe from the evidence in this case, therefore, that the deceased had two ways of performing his work at the station of Thomas on the day he was injured, one of them comparatively safe and the other dangerous, and that he adopted the dangerous way and was thereby injured, then the plaintiff is not entitled to recover herein and your verdict must be for the defendant."

At the close of the evidence the plaintiff requested certain special interrogatories to be submitted to the jury in addition to their general verdict, which was refused and exceptions saved.

W. F. Evans, of St. Louis, Mo., and R. A. Klienschmidt and J. H. Grant, both of Oklahoma City, for plaintiff in error. J. D. Houston and C. H. Brooks, both of Wichita, Kan.,. and C. H. Parker and P. C. Simons, both of Enid, for defendant in error.

DEVEREUX, C. (after stating the facts as above). [1] The first assignment of error is that, owing to irregularity in the proceedings and conduct of the court, the defendant was prevented from having a fair trial. This assignment of error is based on the cross-examination of several of the defendant's witnesses by the court, but it is not necessary to set the cross-examination out at large. But we are not prepared to say that it constitutes reversible error. The practice of the trial court taking charge of a witness and indulging in a long cross-examination is not to be commended. In N. Y. Transportation Co. v. Garside, 157 Fed. 521, 85 C. C. A. 285, it is held:

"It must be admitted that a continual interposition by the trial judge in the examination of claimed. Still the trial judge has a right, and, witnesses may prejudice the jury to the extent indeed, it is his duty, to see that the facts of the case are brought intelligibly to the attention of the jury, and to what extent he will interfere, for this end is a matter of discretion."

In commenting on this case in BerwindWhite Coal Mining Co. v. Firment, 170 Fed. 151, 95 C. C. A. 1, the Circuit Court of Appeals for the Second Circuit, says:

"We found no abuse of discretion in that case. In the case at bar the cross-examination by the court was much more extended, and, presumably through some errors either in the stenographic report or in its transcription into the case on appeal, there are passages where it is difficult to tell whether a particular statement is made by a witness in response to the court's questions, "In this connection, gentlemen of the jury, or is a summary by the court of what he underyou are further instructed that, even though stood the witness to have already testified to. you believe that the station platform at Thomas Nevertheless, on a careful study of the record, was defective, and believe that the defendant we do not feel warranted in reversing on this was negligent in the maintenance of same, still exception. It may be proper, however, to exyour verdict should be for the defendant unless pand somewhat the statement made in the Garyou find, by a fair preponderance of the evidence, side Case. Cases occasionally present themthat the negligence of the defendant, with re- selves where a plaintiff or defendant is represpect thereto, was the direct and proximate sented by incompetent counsel, and where the cause of the death of deceased. You cannot re- ends of justice require the trial judge to secure, turn a verdict against the defendant upon mere so far as he can, a fair and full presentation speculation or conjecture-your verdict must be of the case, so that the party who came into the based upon the facts disclosed by the evidence." court, expecting to have a full, fair, and just ex"You are further instructed that if a servant amination of the facts in controversy, will find has two ways of performing his work, one a his expectation realized. But where a party is

ed therewith and there is no direct proof as to how the accident occurred, the manner of its occurrence may be shown by circumstantial evidence from which the jury may infer the manner and cause of the accident if the inference is a reasonable, although not" a necessary, one.

And this case was affirmed on writ of error by the Supreme Court of the United States in 212 U. S. 159, 29 Sup. Ct. 270, 53 L. Ed. 453. In Hayes v. Williams, 17 Colo. 465, 30 Pac. 352, it is held that what is the proximate cause of an injury, whether it be the original negligence of one party or the intermediate negligence of another party, is ordinarily a question for the jury, to be de

and oral argument demonstrate this plaintiff was-it would seem that the conduct of his side of the case had better be left to his own counsel. It is not unreasonable to assume that such counsel's study of the case and the information he possesses as to the personal equation of the different witnesses called against his client may make him a more competent cross-examiner than the trial judge, who never knew of the issues in the case till the pleadings were opened. Indeed, it might sometimes happen that a well-laid plan to discredit a hostile and unfair witness would be disarranged and rendered futile by premature cross-examination. The safer course would seem to allow the examination by counsel direct, cross, redirect, and recross-to conclude, and then, if anything is obscure, if some point seems to be overlooked, or if suspecting false swearing, * *the judge can, and indeed ought to, in-termined from the minor associated facts and tervene so that the ends of justice may be subserved. Where, however, he takes the crossexamination out of the hands of competent counsel, there is danger that the jury, from this fact alone, may draw conclusions unfavorable to the witness and to the party on whose behalf the witness is called."

* *

*

circumstances. In Booker Tobacco Co. v.
Walker, 38 Okl. 47, 131 Pac. 537, it is held:
ferences that the jury could
"It is only when the evidence, with all the in-
from it, will be insufficient to support a verdict
draw
for plaintiff that the court is authorized to di-
rect a verdict for defendant; and, unless the
conclusion follows, as matter of law, that no
properly taken of the facts which the evidence
recovery can be had upon any view that can be
tends to establish, the case should be left to
the jury under proper instructions."

And see Creek Bank & Trust Co. v. Johnson, 33 Okl. 696, 127 Pac. 480, and St. L. & S. F. R. Co. v. Long, 41 Okl. 177, on page 212, 137 Pac. 1156, Ann. Cas. 1915C, 432.

We think the above is the sound rule on this question; and, while trial judges have the undoubted right to interrogate witnesses, and in certain cases it is their duty so to do, yet care should be taken to frame the questions in such a manner as not to intimate to the jury that the judge has any opinion as to the facts of the case or the credibility of the witness. While much of the evidence brought out by the court in its examination [3, 4] Applying the principle decided by was not pertinent to the issues in the case, these cases, it cannot be said that there was yet we cannot say, from an inspection of the no evidence to go to the jury in this case. record, and especially from the charge, that The plaintiffs' evidence tended to prove that it probably resulted in a miscarriage of jus- the platform was out of repair; that at the tice, or constituted a substantial violation place where plaintiff's intestate alighted from of a constitutional or statutory right. Rev. the train there were nails protruding above Laws 1910, § 6005. Plaintiff in error relies the surface of the platform; that some of on the city of Newkirk v. Dimmers, 17 Okl. the boards had holes in them; some would 525, 87 Pac. 603, but that case is distinguish-spring when trodden upon, and some were able from the case at bar, as there the trial rotten at the edge next to the track. judge clearly intimated that the testimony of absence of direct evidence as to what caused the witness was false, and that she had been the plaintiff's intestate to fall, it was within procured by the plaintiff in error to falsely the province of the jury to consider this evitestify, but the record before us does not dis- dence, and the inference drawn by them that close matter to bring the case within the it was these defects that caused the accident rule established by that decision. is not an improbable one.

The next assignment of error is that the court erred in overruling the demurrer to the evidence, and under this assignment we will also consider the refusal of the court to di

rect a verdict.

In the

the admission of certain testimony. Among [5] The next assignment of error is to other things the plaintiff was allowed to show that it was the habitual practice of brakemen to get on and off moving trains at stations, and this was admitted on the ground that the practice was so open and notorious that the superior officers of the corporation must have known of it. evidence was competent, because it was in evidence that it was not practicable to do

This

[2] The question is not presented that the happening of an accident, in case of an employé, raises a presumption of negligence, and consequently the case of Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, does not apply, for while there is no direct evidence showing what caused the deceased to fall, there was evidence show-switching around stations, without the brakeing the condition of the platform, from which the jury might draw the inference that it was the condition of the platform that was the proximate cause of the death of the plaintiff's intestate. In Waters-Pierce Oil Co. v. Deselms, 18 Okl. 107, 89 Pac. 212, it is held: "Where an accident has occurred resulting in the death of all the persons immediately connect

man getting on and off moving trains, and the rule of the plaintiff in error, introduced in evidence, only prohibits employés getting on and off trains or engines moving at a high rate of speed. The evidence was clearly admissible. In U. P. Railway Co. v. Springstwen, 41 Kan. 724, 21 Pac. 774, it is held:

AS. (No. 4750.)

(53 Okl. 11)

"A railway company by a rule prohibited conductors and engineers from making flying switch- AMERICAN BANKERS' INS. CO. v. THOMes. The deceased, a brakeman, working under the direction of an engineer, was not guilty of contributory negligence when the manner of switching by which he was killed had been the usual and customary way of doing the same, though he knew of the rule."

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(Supreme Court of Oklahoma. Oct. 12, 1915. Rehearing Denied Jan. 11, 1916.)

(Syllabus by the Court.)

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1. INSURANCE 136 LIFE INSURANCE DELIVERY OF POLICY WAIVER OF CONDITION.

plication in writing to defendant at S., through On December 5, 1910, the insured made ap

its special agent, for the policies sued on, therein representing his health to be good. The special agent recommended the acceptance of the risk, sent the same to the home office at Chicago, where policies issued and were sent to the bank at S., pursuant to an arrangement with the

[6] Other evidence objected to was that the plaintiff below was allowed to show that it was not practical to do switching at depots, unless the brakeman got on and off moving trains, and that plaintiff was allow-bank to turn them over to any one having the ed to show the condition of the platform three weeks after the accident, there being no evidence that its condition had changed, except the natural depreciation from the elements. No extended discussion is necessary to show that this evidence was competent, nor do the other exceptions to the admission of evidence require extended notice, for, even admitting the violation of the rules, if there was any under the express words of the rule that employés must not alight from trains moving at a high rate of speed, the question was fairly left to the jury.

[7] The next assignment of error is to the charge as given, and also to the refusal to give certain specific instructions asked by

the defendant.

[8, 9] We have carefully examined the entire instructions given by the court to the jury, and also those requested by the defendant, and we find the instructions as giv'en to present the questions fairly and impartially, and, as far as those requested were applicable, they are covered by the instructions given. The court did not commit any error that this court can review in refusing to submit the special interrogatories to the jury in addition to the general verdict. See section 21, art. 7, of the Constitution, construed in King v. Timmons, 23 Okl. 407, 100 Pac. 536; Cook v. State, 35 Okl. 653, 130 Pac, 300.

[10] The last assignment of error is that the jury did not apportion the amount of the recovery between the wife and child of the deceased, but this very question was decided adversely to the plaintiff in error in Central Vermont Ry. Co. v. White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, where it is held:

"A general verdict for the plaintiff may be returned by the jury in an action brought by the administratrix under the federal Employers' Liability Act (35 Stat. at L. c. 149), for the benefit of the widow and minor children of the deceased employé, without apportioning the damages between the beneficiaries.'

We, therefore, recommend that the judgment be affirmed.

PER CURIAM. Adopted in whole.

right to receive them on payment of the preto the account of defendant by the bank as its miums, which, when paid, were to be credited depository. At the time the policies arrived M. was the local soliciting agent of the defendant certain per cent. of the first year's premium on at S., under agreement with defendant for a business written with his aid. Having assisted in securing the business in question, and being entitled to part of the premiums on delivery of knowledge that deceased was in ill health, inthe policies, M., on February 8, 1911, with structed H., a collector for the bank, to turn the policies over to the insured on payment of the premiums if he so desired; whereupon H., with the permission of the cashier, after banking hours entered the bank, left a check for the amount of the premiums, took the policies, and caused them to be delivered to the insured, who died next day. Held, the policies providing that they "shall not take effect until the same shall be issued and delivered by the company, and the first premium paid thereon in full when my health is in the same condition as described in this application," the good health of the insured was a condition precedent to the delivery of the policies. Held, further, that the local soliciting agent was without authority to waive such condition, and that on the facts stated no risk attached under the contract of insurance.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 219-230; Dec. Dig. 136.]

2. INSURANCE 141-LIFE INSURANCE-AC-
TION ON POLICY-DEFENSE-ESTOPPEL.
But where, in addition to the facts stated,
the check given in payment of the premiums was
collected and the proceeds placed to the credit
of defendant, pursuant to a prior arrangement
with the bank, and, being thus received, has
since been retained by defendant with knowledge
of all the facts, held to constitute a waiver of
such condition precedent, and that defendant is
estopped to urge that no risk attached under the

contract of insurance.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §8 75, 253-262; Dec. Dig. 141.]

Error from District Court, Pontotoc County; Tom D. McKeown, Judge.

Action by Belle D. Thomas against the American Bankers' Insurance Company. Judgment for plaintiff, and defendant brings

error. Affirmed.

Frank C. Rogers, of Chicago, Ill., and C. A. Galbraith and Hainer, Burns & Toney, all of Oklahoma City, for plaintiff in error. J. F. McKeel, of Ada, for defendant in error.

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