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DOYLE, P. J. Clifford Rentie, plaintiff in error, was convicted of assault with intent to kill T. L. Dunigan, and was sentenced to imprisonment in the penitentiary for the term of three years. From the judgment an appeal was taken by filing in this court on May 4, 1915, a petition in error with casemade. The errors assigned are:

(1) That the court erred in overruling the motion for a new trial.

(2) That the verdict is contrary to law and the evidence and is based wholly upon passion and prejudice.

(3) That the court erred in giving instruction No. 6 to the jury.

It appears that the plaintiff in error, a negro, assaulted the prosecuting witness Dunigan with a knife, inflicting nine wounds, one of which penetrated the pleural cavity.

No briefs have been filed, and when the case was called for final submission no appearance was made in behalf of the plaintiff in error. The case was thereupon submitted on the record. We have carefully examined the record, and find that it is exceptionally free of error, and we find no reason to think that the verdict was the result of passion or prejudice. No objection was made or exception taken to the instructions given by the court.

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PER CURIAM. Upon rehearing it is urged that the evidence introduced in this cause on behalf of the state is legally of doubtful competency. In fact, all of the direct evidence, under strict adherence to the rules of law governing the introduction of testimony, should probably have been excluded. Taken as a whole, however, and considering all the facts and circumstances introduced in the case, we entertain no doubt that the jury's verdict finding defendant guilty was just.

There are errors of law urged in the brief and argument which are of more or less merit, but sufficient prejudice does not appear to warrant a reversal of this judgment. There is no proof disclosed by the record that the plaintiff in error was ever indicted, or convicted, of a similar offense. There was no proof offered by the plaintiff in error in his defense. He chose to stand on technical errors of law.

Upon a re-examination of the record we are of opinion that the irregularities complained of tended reasonably to prejudice the jury in the matter of assessing the punishment. A fine of $250 was imposed and a jail sentence of 90 days. A new trial in this cause would probably result in another conviction; but, if tried according to law, a lighter punishment would probably be imposed.

It is therefore the judgment of the court that the ends of justice warrant a modification of this judgment by reducing the fine from $250 to $150, and imprisonment from 90 days to 60 days. It is therefore so ordered.

As modified, the judgment, on rehearing, is affirmed. Mandate ordered forthwith.

(12 Okl. Cr. 253)

WINGO v. STATE. (No. A-2457.) (Criminal Court of Appeals of Oklahoma. Feb. 5, 1916.)

(Syllabus by the Court.) CRIMINAL LAW 1172-HARMLESS ERROR

INSTRUCTIONS.

The letter and spirit of the law is that, if the defendant had had a fair trial, and if this

court is satisfied that the verdict against the | zen, when charged with crime, is entitled to defendant was not reached by error, or as the a fair trial according to the due and orderly result of passion or prejudice, the conviction should be affirmed. In this case the erroneous course of the law, but he cannot be heard to instruction was harmless, for the reason that complain if an error is committed that canthe evidence did not leave the guilt of the de- not operate to his prejudice. Cooper v. State, fendant in doubt. No defense was made, and no 12 Okl. Cr. —, 152 Pac. 608. prejudice could have resulted.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3128. 3154-3157, 3159-3163, 3169; Dec. Dig. 1172.]

Appeal from County Court, Grady County; R. E. Davenport, Judge.

Bud Wingo was convicted of a violation of the prohibitory law, and appeals. Affirmed.

Holding & Herr, of Chickasha, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

DOYLE, P. J. The plaintiff in error, Bud Wingo, was convicted in the county court of Grady county on an information charging that in said county on or about the 10th day of November, 1914, he did then and there willfully and unlawfully have in his possession 360 gallons of whisky with the unlawful intent to violate provisions of the prohibitory law. Judgment was rendered on the 13th day of March, 1915, and he was sentenced to pay a fine of $100 and to be confined in the county jail of Grady county for a period of 30 days. From the judgment an appeal was taken by filing in this court on May 10, 1915, a petition in error with case-made.

Upon the undisputed facts and the law as we understand it, the plaintiff in error was rightfully and legally convicted.

The judgment of the county court of Grady county herein is therefore affirmed.

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[Ed. Note.-For other cases, see Trial, Cent. Dig. § 471; Dec. Dig. 2001]

2. TRIAL 260-REFUSAL OF INSTRUCTIONS COVERED.

case.

The evidence for the state shows that the Where the instructions given by the court defendant was found driving through the clearly and fairly cover the law as to a particcountry south of Chickasha with two wag-ular phase of a case, it is not error to refuse ons; he driving one team and his little boy requested instructions on the same phase of the another; that in one wagon was four barrels of whisky, and in the other three barrels and a case of whisky, and, when arrested, the defendant produced what he called a bill of lading purporting to show that the whisky had been delivered to him at Wichita Falls

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.] 3. MASTER AND SERVANT 125 SERVANT-DEFECTIVE MACHINERY-LIABILITY OF MASTER.

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INJURY TO

Where an employé is injured by the breakand consigned to one John Jackson at Hope, ing of defective machinery, the fact that the master purchased the machinery from a repuArk. There was no evidence offered on the table dealer is only one ingredient of evidence on part of the defense. The errors assigned are the question of whether he has exercised reaHe should also resort to such based upon the refusal of the court to give sonable care. certain requested instructions, and on an ex-ering the character of the machinery and the tests as are reasonable and practicable, considdanger connected with its operation.

ception taken to one of the instructions given. The instructions requested were properly refused. The instruction excepted to was incorrect. Similar instructions have been condemned by this court in the case of Huff v. State, 12 Okl. Cr. 152 Pac. 464; Beal v. State, 12 Okl. Cr. —, 152 Pac. 808; and Sellers v. State, 11 Okl. Cr. 588, 149 Pac. 1071. However, upon a consideration of the record, we are of the opinion that on the undisputed facts of this case the defendant could not be prejudiced by the instruction complained of, for the reason that the evidence did not leave the guilt of the defendant in doubt. This court has often held, where the case is clearly made out against the defendant, and the jury has so found, the judgment will not be reversed for errors which do not affect the substantial merits of the case. Every citi

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. & 125.]

On Rehearing.

4. EVIDENCE 244-KNOWLEdge.
ing machine breaks, causing the boom pole to
fall upon an employé and injure him, and there
is evidence that the foreman of the wrecking
crew, immediately after it had broken, remark-
that such remark by the vice principal tends
ed "that he was expecting that to break," held,
to charge the employer with knowledge of the
defective condition of this particular part of
the machine, and that it was proper to submit
ing to show knowledge of this particular de-
this evidence, together with other evidence tend-
fect, to the jury.

Where what is called the U-bolt in a wreck

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. 244.]

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

Commissioners' Opinion, Division No. 2. Error from District Court, Hughes County; John Caruthers, Judge.

Action by Hiram L. Davis against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed and rehearing denied.

The complaint is that this portion of the instruction is inapplicable to the facts in the case; that there was no evidence as to the defective condition of the machinery offered by the plaintiff. But this contention is not supported by the record. One witness without objection testified that, immediately fol

man said:

E. R. Jones and J. C. Wilhoit, both of Mus-lowing the injury of the plaintiff, the forekogee (Arthur Miller, of Kansas City, Mo., of counsel), for plaintiff in error. Crump & Skinner and W. T. Anglin, all of Holdenville, for defendant in error.

"I told them if they did not fix that thing up, somebody would get killed. Q. What was he talking about? A. The wrecker, I reckon; said he told them fellows if they did not fix that, that it was going to kill somebody. Q. What did he say; anything else? A. Yes, sir. He said it come pretty nigh killing somebody last night."

Several other witnesses testified to these same remarks. We think this evidence clearly raised the question of the condition of the machinery, and justified the instruction complained of. But this instruction, among other precautionary admonitions, further charged the jury that:

BRETT, C. This action was commenced in the district court of Hughes county by the defendant in error, Hiram L. Davis, as plaintiff, against the Missouri, Oklahoma & Gulf Railway Company, as defendant, to recover damage for alleged personal injuries. The material facts are: That Hiram L. Davis, the plaintiff in the lower court, was a section hand in the employ of the defendant, and as such was called out in May, 1912, by the de"The railroad company is not to be held as fendant to assist in clearing away a wreck the plaintiff, nor is it bound to furnish the safguaranteeing or warranting absolute safety to which had occurred on defendant's read. est machinery nor to provide the best methods The pleadings and evidence show that at the for its operation in order to save itself from retime the alleged injuries were received plain-If the machinery and appliances used be of or sponsibility to accidents resulting from its use. tiff was acting under the directions of the dinary safe character, properly equipped with foreman of the wrecking crew. While doing reasonably safe appliances, and in sound repair, this the wrecking machine broke, and caused and such as can, with reasonable care be used the injuries complained of. Plaintiff by prop- required, and when it has exercised that degree without danger to its employés, that is all that is er pleadings alleges that the machinery was of prudence and care that an ordinary reasondefective, and charges negligence on the part able prudent man would provide in guarding of the defendant in furnishing dangerous and against accidents or injuries himself under like defective machinery with which to do this the law has imposed upon it to the plaintiff." circumstances, it has exercised all the duty that work. There being no question raised in this court as to the pleadings, it is unnecessary to further set them out. The cause was tried to the court and a jury. The defendant deThe defendant further complains of the murred to plaintiff's evidence, which was court's refusal to give two requested instrucoverruled, and the jury returned a verdict for tions, which are to the effect that the defendthe plaintiff for $1,500, which became a judg-ant is not liable for latent defects, which by ment; and the defendant appeals from this judgment.

The instruction, taken as a whole, we think, the law applicable to the facts in the case. was very clear, accurate, and fairly stated

reasonable diligence could not be detected. But this proposition was fully and clearly covered by No. 3 of the instructions given by the court, and this contention is wholly without merit.

[3] The further complaint is that the court refused requested instruction No. 16, which

is as follows:

There are numerous assignments of error, but the only issue before this court is one of law; as the facts have been passed upon by the jury, and, there being evidence to sustain their verdict, this court, as has often been said, will not attempt to weigh the evidence. [1, 2] The defendant (plaintiff in error) "The court instructs the jury, as a matter of complains of a portion of instruction No. 2, law, that a master who buys machinery, tools, given by the court. That portion of the in-appliances, or materials from a reputable maker struction complained of is the following: and who also uses reasonable care in inspecting "In this case the law imposes upon the defend-use or operation is not liable to an employé and setting the same up and putting them into ant company the positive duty to have used reasonable care in seeing that the derrick and boom pole and the U-bolt, and other attachments of the wrecking machinery were so constructed as to have been in a reasonably safe condition, and it was the positive duty of the defendant company to see that the machinery and appliances used were sound, and the failure of the company to provide sound machinery to do the work of clearing away the wreck and to provide reasonably safe equipments for that purpose, taking into consideration the character of the work to be performed by its employés while engaged in the service of the company, would be negligence, un

for injury resulting from the negligence of the maker of the material or in his doing the work in an improper manner.'

This instruction, we think, imperfectly states the law on the question, and was properly refused. The master cannot rely simply upon the reputation of the dealer from whom he purchases, and "reasonable care in inspecting and setting up the machinery and putting it into operation," but he must also resort to such tests as are practicable, and

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machinery, and the dangers connected with its operation. It is often the case that the mere visual inspection is insufficient, and of but little practical value. As said by Mr. Thompson:

"The fact that the master purchases the machine, tool, or appliance from a reputable manufacturer does not excuse his own negligence in inspecting it, in testing it, and in setting it up, but is a circumstance entering into the general ingredient of evidence, speaking on the question whether or not he has exercised reasonable care in the premises." 4 Thompson on Negligence, §

3990.

boom pole in question and described in the petition, broke, permitting the boom pole to fall upon the back of the plaintiff and injuring him, and if said bolt was defective by reason of some latent or hidden defect, which could not have been known to the defendant or its in time to have avoided the injury, by proper employés by the exercise of reasonable diligence inspection and examination of the machinery from time to time, taking into consideration the character of the work and the strain that caused as the result of the breaking of the Uwas being required of it, and said accident was bolt, under such conditions, then the plaintiff cannot recover, for it would not be such negligence on the defendant's part as the law contemplates which would entitle the plaintiff to

recover.

And we think this is the correct rule, and the fact that the master purchased the machinery from a reputable dealer is only an ingredient of evidence on the question of wheth-question er or not he has exercised reasonable care in the premises. And taking the instruction as a whole, the question of reasonable care was fairly submitted to the jury, and as favorable to the defendant as the law would warrant. Hailey-Ola Coal, Co. v. Parker et al., 32 Okl. 642, 122 Pac. 632, 40 L. R. A. (N. S.) 1120; C., R. I. & P. Ry. Co. v. Wright, 39 Okl. 84, 134 Pac. 427; Rock Island Coal Mining Co. v. Davis, 144 Pac. 600, not yet officially reported.

The evidence is sufficient to sustain the judgment, and we cannot say the judgment is excessive. We, therefore, recommend that the judgment be affirmed.

PER CURIAM. Adopted in whole.

On Rehearing.

BRETT, C. The plaintiff in error in its petition for rehearing insists that there was an utter lack of evidence to show negligence of any kind or character on the part of plaintiff in error to submit to the jury; that there was no evidence that it had knowledge

of the defective condition of the U-bolt which broke, and that the U-bolt was so hidden and concealed that an inspection of it was impossible; and that the doctrine of res ipsa loquitur has no application between the master and servant. This cause

was not tried in the lower court, nor submitted to the jury in that court, upon the doctrine of res ipsa loquitur. Nor was that doctrine suggested or intimated in the original opinion. On the contrary, instruction No. 3, referred to, but not set out, in the original opinion, plainly tells the jury that negligence could not be presumed from the fact that the U-bolt broke, and that the defendant (plaintiff in error) cannot be held liable for latent or hidden defects in

the U-bolt, which could not have been known

to the defendant or its employés by the exer

cise of reasonable diligence. This instruction, quoted verbatim, is the following:

"You are further instructed that you cannot presume that the defendant was negligent from the mere fact that the U-bolt, supporting the|

This instruction squarely presented the to the jury, as to whether or not under the evidence adduced in their hearing, the defect in the U-bolt was, as contended by the defendant, of such a latent or hidden character that it could not be known to the defendant by the exercise of reasonable diligence, and told them plainly that negligence could not be presumed from the fact that the U-bolt broke, and under this instruction and the evidence the jury found against the contention of the defendant.

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At that time

[4] In addition to the evidence set out in the original opinion, tending to show that knowledge of the defective condition of the U-bolt had been brought home to the defendant, the witness Barnes testified that immediately after this U-bolt had broken, the foreman said * that he was expecting that to break, or looked for it, something like that." What would be the reasonable inference to be drawn from this lansomething that had not broken, or to the guage? That the foreman was referring to very thing that had broken? it was manifest that it was the U-bolt that caused the accident; and to insist that this had broken, and that this was what had evidence does not tend to bring home to the tion of the U-bolt, and should not have been defendant knowledge of the defective condisubmitted to the jury, seems to us absurd. That was the very gist of the controversy. If the defendant did not know, and could not by the exercise of reasonable diligence then the plaintiff could not recover, and the have known, that the U-bolt was defective, court so instructed the jury. But if, on the other hand, the defendant did know, or could, by the exercise of reasonable diligence, have known of the defective condition of the Ubolt, then it was liable. And this issue was squarely and fairly submitted to the jury.

had been raised by the pleadings and evidence, and to have refused to submit it to the jury would have been error.

This was purely an issue of fact, which

We recommend that the petition for rehearing be denied.

PER CURIAM. Adopted in whole.

(54 Okl. 626)

MIDLAND SAVINGS & LOAN CO. v.

NEIGHBOR et al. (No. 5636.) (Supreme Court of Oklahoma. Jan. 11, 1916.)

(Syllabus by the Court.) MORTGAGES 275–PURCHASER of MortgaGED PROPERTY-RIGHT TO QUESTION VALID

ITY.

One who purchases real property expressly subject to a mortgage thereon is, in an action to foreclose the same, precluded from asserting the invalidity of such mortgage and defending against it on the ground that it is not fully enforceable against his grantor.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. 88 772-781, 1218; Dec. Dig. 275.1 Commissioners' Opinion, Division No. 3.

Error from District Court, Alfalfa County;
James W. Steen, Judge.

Action by the Midland Savings & Loan Company, a corporation, against Oma J. Neighbor and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.

Geo. W. Partridge, of Cherokee, and A. J. Bryant, of Denver, Colo., for plaintiff in error. Titus & Talbot, of Cherokee, for defendants in error.

ver,

"The Midland Savings & Loan Company, DenColorado-Gentlemen: In accepting lot numbered 3 in block numbered 21 in the town of Cherokee, county of Alfalfa and state of Oklahoma, according to the recorded plat thereof, and the assignment of your certificate numbered 9346, representing thirty-five shares of stock, from Lincoln H. Burr, I accept the same subject to the mortgage held by your company on the said property, and assume and agree to pay said mortgage indebtedness, and to own and carry the said shares of stock, according to the contract of said Lincoln H. Burr, as a part payment of the purchase price of said property. Respectfully, Oma J. Neighbor and witness S. W. Hill."

Subsequently Oma J. Neighbor and J. W. Neighbor conveyed said property to the defendant F. R. Zacharias, subject to said mortgage. Numerous payments were made, apparently in compliance with the provisions of said obligation, by defendants and their predecessors in interest, the last being on August 11, 1911. Defendants having defaulted in the payment of certain installments, due according to the terms of the bond, the association exercised its option to declare the whole amount immediately payable, and, on July 1, 1912, brought this action, claiming the sum of $776.08, including an attorney's fee of $100.

Defendants contended that the bond and mortgage in suit constituted an Oklahoma contract, governed and to be construed by the law of this jurisdiction; that such contract did not comply with the law of this state relative to building and loan associations; that the premiums collected, and sought to be collected, were fixed and exacted by arbitrary rule of the association, and were not determined and accepted as the result of competitive bidding, as required by law; that the contract is usurious; that plaintiff is entitled to collect only the principal sum of $1,000, with the minimum rate of interest thereon, etc. The court found and adjudged:

BLEAKMORE, C. This case presents error from the district court of Alfalfa county. On November 2, 1908, Lincoln H. Burr and wife executed and delivered their bond or note for the principal sum of $1,000 and a mortgage on certain real estate situate in the town of Cherokee, Okl., securing the same, to the Midland Savings & Loan Company, a building and loan association incorporated and existing under the laws of the state of Colorado, and, by compliance with the law, authorized to do business in this state. By the terms of said bond the makers bound themselves to pay to the association, at its office in Denver, Colo., the sum of $24 on or before the last day of each month, of which "That plaintiff had not required bids from its amount $14 was a monthly installment, due stockholders for preference of loan, and that the upon 35 shares of the capital stock of the loan was made without any such bids as required by law, but by an arbitrary rule of the comassociation, $8.33 was monthly interest upon pany, and that premium so paid by the defendthe principal sum, and $1.67 a premium pay- ant was paid on said arbitrary basis, and not able monthly upon said principal, and also as the result of any bidding for said loan, and such fines as should accrue upon delinquent is not entitled to the privileges granted to a the said contract is usurious; and that plaintiff payments for said stock, interest and premi- building and loan association under the laws of um, according to the by-laws of the company, this state; and that by reason thereof plaintif until the principal sum should be paid in is entitled to interest at 6 per cent. on the origfull as provided in the bond and, further, several sums of money paid thereon, as shown inal bond from its date to this day, less the that in the event of default in the payment by plaintiff's petition herein; and the court furof any of said monthly payments, the associa- ther finds that plaintiff took possession of the tion should have its option of declaring the property under foreclosure of this action prior to the 1st day of November, 1912, and has oc principal sum due and payable at once, and cupied the same since, and that the reasonable in case of suit to pay an attorney's fee of rental value thereof is the sum of $20 per month $100. On April 10, 1911, Burr and wife con- for the past nine months, in the sum of $150, veyed the mortgaged property to the defend- and that the same should be credited on the amount found due the plaintiff herein; and the ant Oma J. Neighbor, who, as part of the pur-court finds the total amount due the plaintiff on chase price thereof, expressly assumed the said note and mortgage, after deducting all payobligation of said bond, and agreed to payments and rents as aforesaid, to be the sum of $127.91, to bear interest at 6 per cent. per anthe indebtedness evidenced thereby, said num, and plaintiff is allowed $100 attorney's agreement being as follows: fees, to be taxed as part of the costs of the ac

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