[1] As heretofore stated, the facts found by the court are sufficient to a full understanding of the material allegations in the petition, and from a reading of the record we cannot say that the court's finding as to any material fact is against the weight of the evidence. Nor do we perceive any substantial error in the court's conclusions of law and judgment. In such case the finding and judgment will not be disturbed. Rush Springs v. Bentley, 75 Okl. 119, 182 Pac. 664; Nelson v. Golden, 84 Okl. 29, 202 Pac. 308; Hines v. Olsen, 78 Okl. 259, 190 Pac. 266. [2] From a reading of the record, it is our conclusion that the findings of fact are not against the weight of the evidence, and that the conclusions of law and judgment are applicable to, and responsive to, the facts found. The judgment is affirmed. Pardue & Davis, of Wilson, and Moore & West, of Ardmore, for defendant in error. JONES, C. This suit was instituted in the district court of Carter county, state of Oklahoma, on June 8, 1921, by the appellee, plaintiff in the trial court against the appellant, defendant in the trial court to recover judg ment in the sum of $20,000 as damages to his farm consisting of 130 acres of land adjoining the town site of the city of Wilson. Plaintiff alleges that in the year 1917 the defendant constructed and installed a septic tank and sewerage system for said town of Wilson; that said septic tank and sewerage system was carelessly and negligently constructed and negligently operated by the defendant; that by reason of the manner of operating same the septic tank frequently overflowed and the sewerage permitted to flow out over the plaintiff's farm and pollut MCNEILL, C. J., and BRANSON, JOHN-ed the air, and the stream flowing through SON, and GORDON, JJ., concur. CITY OF WILSON v. FULTON. (No. 13903.) (Supreme Court of Oklahoma. Sept. 16, 1924.) (Syllabus by the Court.) 1. Appeal and error 1005(2)-Approved verdict reasonably supported by evidence not disturbed. In a law action, where there is any evidence which reasonably tends to support the verdict of the jury, and such verdict has received the approval of the trial court, it will not be disturbed on appeal. 2. Sufficiency of evidence. The record examined, and held, that there is evidence which reasonably tends to support the verdict of the jury. 3. Appeal and error 933 (1)-Trial court presumed to have carefully considered and weighed evidence and approved verdict in passing in motion for new trial. Where the trial judge before whom a jury trial was had passes upon a motion for a new trial, which, among other things, challenges the sufficiency of the evidence to support the verdict of the jury, this court will presume that the trial judge carefully considered and weighed the evidence, and in overruling said motion for a new trial the verdict of the jury received his judicial approval. Commissioners' Opinion, Division No. 3. Appeal from District Court, Carter County; Thos. W. Champion, Judge. son. Suit by W. L. Fulton against City of WilVerdict for plaintiff, and from an order overruling motion for new trial defendant appeals. Affirmed. N. E. Ticer, City Atty., of Wilson, and J. A. Bass and Champion & George, all of Ardmore, for plaintiff in error. and across plaintiff's farm, making it unfit for stock water for which it was used; that said premises were in a high state of cultivation, well improved, and, by reason of being not only for farm purposes, but for town site adjacent to the city of Wilson, were valuable, purposes, and that by reason of the construction and manner of operating said sewerage system and septic tank the plaintiff's premises were made uninhabitable on account of the obnoxious and sickening stench and odors caused thereby, and that the vegetation and fruit trees in the locality over which the discharge from said septic tank ran were killed and destroyed, and that he lost a number of live stock by reason of the pollution of the water, and that members of his immediate family were caused to be sick, and that he was damaged in the sum of $100, the value of live stock lost, and in the sum of $400, the value of the service lost to him by reason of the sickness of his wife and two sons, and in the sum of $500 incurred by reason of said sickness as medicine and doctor bills, and that he has sustained a general damage to his land on account thereof by reason of the deterioration in value in the sum of $10,000, wherefore he prays judgment for the total sum of $20,000-to which petition the defendant, the city of Wilson, answered by a gen eral denial. On March 24, 1922, the case was called for trial, and resulted in the rendition of a verdict by the jury in favor of the plaintiff for $1,300; motion for a new trial was filed and overruled, from which order and judgment the defendant appeals and sets forth various assignments of error, but bases its right to a reversal of this case on two propositions: First, that the evidence was not sufficient to sustain the judgment; and, second, that the damages, if any, sustained by the plaintiff | were occasioned in part by the plaintiff himself, which precludes a recovery by the plaintiff. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (229 P.) The facts, as disclosed by the record, show that the premises involved was an ordinary farm, rolling in character, with moderate improvements erected thereon, in which the plaintiff lived, and that the septic tank was located on or near his land and within about 300 yards of his residence. It is also evident that the sewerage system and septic tank was defective in some manner, which caused the septic tank to overflow and permit the offal or sewerage to escape and flow over the surface of the premises of the plaintiff, and that, while in the winter season it seems that it was not specially objectionable, and at times no odors or fumes escaped which were perceptible, yet that during the summer season the stench and odor caused by reason of the overflow of the septic tank became very obnoxious and unpleasant, and according to some of the testimony offered was sufficient to, and did, greatly reduce the value of plaintiff's property. [2] The appellant makes the contention that there is no proof which would justify a recovery for the loss of animals charged to have died from having drunk of the polluted waters or to establish the allegations that the sickness of plaintiff's family was caused by reason of the conditions complained of. In this particular we are inclined to agree with counsel for appellant, but we cannot assent to the contention that there is no evidence to sustain the judgment. The verdict of the jury was general in its nature, and we are unable to determine just what item or element of damages the jury may have had in mind when rendering their verdict, but there is evidence tending to establish the allegations of plaintiff of damages to his premises generally, and, we think, sufficient to sustain the verdict of the jury and the judgment of the court based thereon. [1, 3] Appellee cites the case of Jensen v. Harless, 87 Okl. 197, 209 Pac. 740, wherein this court said: The rule announced, we think, is applicable to the case at bar, and should control the court in determining same. The second proposition urged by appellant is that the damages, if any, sustained by the plaintiff were the result of his own negligence and occasioned by the plaintiff himself, and in support of this theory the appellant in the trial of the case introduced evidence showing that the plaintiff maintained his lots and pigpen and outhouse near his residence, and in close proximity to the well from which he procured his drinking water, but the condition, as disclosed by the record, showed about the ordinary condition which exists in and about the average farmhouse and nothing of sufficient magnitude to deteriorate the value of the property or to produce such conditions as are here complained of and shown to exist and such as might be brought about by the installation and maintenance of a sewerage system and septic tank, where the sewerage and offal from a city of several thousand inhabitants was received and permitted to overflow plaintiff's premises. The two propositions heretofore discussed are the only questions presented to this court on appeal, and, as we view it, present purely questions of fact which so far as the record discloses were submitted to the court under proper instructions, and no contention is made that the judgment is excessive; and, in keeping with the authorities cited and the rule therein announced which has been uniformly followed by this court, we are inclined to the opinion that the judgment should be affirmed, and so recommend. BANK OF PICHER v. HARRIS. (No. 13460.) (Supreme Court of Oklahoma. Sept. 16, 1924.) (Syllabus by the Court.) Pledges 27-Pledgee entitled to reasonable expenses in subjecting property to purposes of pledge. If a debtor assigns evidence of indebtedness, as a pledge to his creditor to secure further the payment of certain indebtedness owing to the creditor, the creditor in the absence of fraud or wrongdoing will be entitled to the allowance of necessary expenses and reasonable costs and attorney's fee, arising in the course of an action to subject the property to the purposes of the pledge. "We have examined the record, and find there. is evidence which reasonably tends to support the verdict of the jury; and, in fact, the defendant does not contend that there is not any evidence to support the verdict, but contends that the evidence is not sufficient, and that the evidence as a whole preponderates in favor of the defendant. We feel compelled to follow the long line of decisions in which this court has laid down this rule: 'In a law action, where there is any evidence which reasonably tends to support the verdict of the jury, and such verdict has received the approval of the trial court, it will not be disturbed on appeal.' 'It is a well-settled rule of this court that where the testimony on any material issue is conflicting, and there is any competent evidence in the record reasonably tending to support the finding of the jury, this court will not review the evidence to ascertain where the weight lies, nor interfere with such finding.' Yukon Mills & Grain Co. v. Imperial Roller Mills Co., 34 Okl. 817, 127 Pac. 422." 2. Pledges ~31(1), 58(1)—Creditor may sue on pledged collateral on debtor's refusal; debtor jeopardizing right of recovery bound by creditor's compromise of action on pledged collateral in absence of fraud. If the debtor refuses to commence suit to recover on the pledged collateral, if it be his duty to do so, the creditor is authorized to commence an action thereon. If in the course of the litigation the debtor files an answer For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The original consideration for the pledged collateral will not support the alleged assignment of the same by the debtor in settlement of the original obligation. The assignment does not carry with it any rights or values therein, in addition to those existing by and through the original pledge of the property. There is no consideration for the creditor to assume the burden and costs of the liquidation of the collateral, which in the first instance was the expense of the debtor. 4. Insufficiency and sufficiency of evidence. answer in the cause disclaimed any interest in the policy, and further set forth that if the proof of loss purported to be sworn to by him it was without his authority or direction. Among the several grounds upon which the company denied liability, was the further claim of the failure of the insured to make and furnish sworn proof of loss as required by the terms of the policy. The action of the defendant put in jeopardy the plaintiff's right to recover on the policy, and made recovery uncertain. The plaintiff settled and compromised the suit later for $600 by reason of the conduct of the defendant. The plaintiff incurred a necessary expense of $35 in the action on the policy. The plaintiff deducted the expenses and a charge of $150 as attorney's fees from the agreed judgment, and credited the balance of $415 on the note and interest, and commenced its action against the defendant for the balance due on the note. The defendant alleged that after the loss he assigned the insurance policy to the plaintiff in full settlement of the indebtedness. The defendant further alleged that, if the assignment was insufficient, that the plaintiff was unauthorized to compromise and settle the suit for less than $750, and that he was entitled to a set-off for this sum against the amount sought to be recovered on the note. As a further counterclaim, the defendant pleaded usury in the loan. In the trial of the cause the jury found that the defendant made an assignment of the Action by Bank of Picher against I. Har- policy to the plaintiff in settlement of the ris. From a judgment for defendant, plain-indebtedness, and returned a verdict in fatiff appeals. Affirmed in part and reversed vor of the defendant on the issue of usury, in part. and for attorney's fees. The court approved J. G. Austin, of Miami, for plaintiff in er- the verdict on usury for $20 and for $25 as Record examined, and held to be insufficient to support judgment on the alleged assignment of the pledge in settlement of the debt. Record held to be sufficient to support judgment on the issue of usury and for attorney's fee in favor of the plaintiff. Commissioners' Opinion. Division No. 4. Appeal from District Court, Ottawa County; A. C. Brewster, Judge. ror. attorney's fee. Among the several errors as Frank Nesbitt, of Miami, for defendant signed by the plaintiff for reversal are: in error. STEPHENSON, C. The defendant executed and delivered his promissory note to the plaintiff in the principal sum of $750, with interest at the rate or 10 per cent. per annum, and gave his mortgage on certain real estate improvements to secure the payment. As a part of the original transaction, the defendant caused an insurance policy to be issued on the improvements, with a loss and payable clause in favor of the plaintiff, and pledged the policy with the plaintiff as additional security. The defendant made default in payment of the note and mortgage. Later the improvements were destroyed by fire, and the defendant made sworn proof of loss, and delivered same to the company. The insurance company refused to pay the loss according to the terms of the policy. The defendant refused to take any action for the collection of the policy for the plaintiff. The plaintiff commenced its action against the insurance company on the policy, and joined the defendant. The defendant by his First, that a certain part of the sum charged the defendant for the loan was for incidental expenses in the transaction; and second, that the alleged assignment pleaded by the defendant was without consideration and not binding on the plaintiff. [1, 3] The lender in making a loan may charge a reasonable sum for the preparation of necessary papers and for inspection of collateral by agreement with the debtor. If these charges are made by agreement such items will not be considered in determining whether the lender has charged a usurious rate of interest. First Natl. Bank of Ada v. Phares, 70 Okl. 255, 174 Pac. 519, 21 A. L. R. 793. But the defendant disputed the plaintiff's claim that a portion of the sum charged was for expenses incidental to the loan. This made a question of fact to go to the jury, and there is ample testimony to support the verdict of the jury in this respect. The insurance policy was pledged to the plaintiff as a part of the original consideration for the loan, and so continued as a pledge until the loss of the property. As For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (229 P.) Fire Ins. Co. v. King, 31 Tex. Civ. App. 636, 73 S. W. 71. The defendant fails upon a further and additional ground. He was a party defendant in the case against the insurance company, and had entered his appearance by answer. The court had jurisdiction of the defendant and the subjectmatter, which gave the court jurisdiction to make final disposition of all questions. The court had jurisdiction to enter an agreed judgment in the cause between the plaintiff and the insurance company. The defendant was bound to take notice of the agreed judgment entered in the case, and unappealed from, is binding on the pledgor. The defendant cannot collaterally attack or question the agreed judgment as entered in this case. Hartford Fire Ins. Co. v. King, supra. This record does not entitle the defendant to a recovery for the difference between the amount for which the policy was compromised and the face value thereof. The plaintiff incurred a necessary expense of $35 in the collection of the policy. The facts in regard to the expense and litigation in connection with the policy are not disputed. The matter of allowing the expenses and determining the allowance for attorney's fee are questions for the court. We think on the record as disclosed a charge of $100 as attorney's fee in the action on the policy would be reasonable. The plaintiff is entitled to an allowance of the necessary expense incurred in the sum of $35, with the sum of $100 as attorney's fee. the defendant refused to collect the policy | v. Day, 136 N. Y. 152, 32 N. E. 612, 18 L after the loss, the plaintiff was authorized R. A. 120, 32 Am. St. Rep. 704; Hartford to proceed with the collection of the claim, and charge the debtor with the necessary and reasonable expenses including an attorney's fee. Gregory v. Pike, 67 Fed. 837, 15 C. C. A. 33; Furness v. Union Nat. Bank, 147 Ill. 570, 35 N. E. 624; Hanover Nat. Bank v. Brown (Tenn.) 53 S. W. 206; Ruberg v. Brown, 71 S. C. 287, 51 S. E. 96. By the alleged assignment on the part of the defendant, the plaintiff did not acquire any rights in addition to those created by the pledge of the property. The plaintiff did not receive any consideration for incurring the burden of collecting the pledge at his cost and expense. The original consideration for the pledge will not support the assignment. There must be some new or additional consideration to support the alleged assignment of the pledged property in full settlement of the debt. State v. Sapulpa, 58 Okl. 550, 160 Pac. 489; Wright v. Tacoma, 87 Wash. 334, 151 Pac. 837; Jobes v. Wilson, 140 Mo. App. 281, 124 S. W. 548; McDevitt v. Stokes, 174 Ky. 515, 192 S. W. 681, L. R. A. 1917D, 1100; Abbott v. Doane, 163 Mass. 433, 40 N. E. 197, 34 L. R. A. 33, 47 Am. St. Rep. 465. The plaintiff was entitled to an instructed verdict on the question of the assignment of the policy in satisfaction of the indebtedness. Ordinarily the creditor is not authorized to settle or compromise claims in connection with pledged collateral for less than its face value, and if he makes settlement for less than face value, he will be liable to the pledgor for the difference. Griggs v. Day, 136 N. Y. 152, 32 N. E. 612, 18 L. R. A. 120, 32 Am. St. Rep. 704; Moses v. Grainger, 106 Tenn. 7, 58 S. W. 1067, 53 L. R. A. 857; MansurTebbetts Imp. Co. v. Carey, 1 Ind. T. 572, 45 S. W. 120. [4] It is recommended that the judgment for usury and attorney's fee in the total of $45 in favor of the defendant be affirmed with 6 per cent. interest, from the date of its rendition. In all other respects it is recommended that the judgment be reversed and remanded, with directions for the court to allow the plaintiff the expense of $135 in the recovery on the policy. The balance of the judgment should be credited on the note. The plaintiff should be allowed interest at 10 per cent. on the $750 from Decem [2] But if the sum which ought to be paid on the pledged collateral becomes disputed or denied, and the debtor fails and refuses to take steps for its collection, if it be his duty to do so, or to commence an action for recovery, the pledgee is authorized to take such steps for the protection of his rights.ber 27, 1919, to the date of the payment of If the conduct of the debtor prior to and during the suit for recovery by the creditor has been such as to threaten plaintiff's right of recovery, and to make recovery uncertain, the pledgee may settle and compromise the litigation for less than the face value of the claim. Under such circumstances the pledgee will not be liable to the debtor for the difference between the amount settled for and the face value of the claim. In order for the debtor to hold the creditor for the difference, he must be free from wrong in the discharge of such duties as rested upon him in aiding the creditor to collect the pledge if it was his duty to do so. Exeter Bank v. Gordon, 8 N. H. 66; Nelson v. First Nat. Bank, 69 Fed. 798, 16 C. C. A. 425; Griggs | cur. the judgment on the policy. The plaintiff should then be allowed interest at the rate of 10 per cent. per annum on the balance of the principal of the note after the remainder of the insurance judgment is credited thereon, until the rendition of the judgment. The court should render judgment in favor of the plaintiff, and against the defendant for the two items of interest so calculated, and the remainder of the principal of the note after receiving the credit from the insurance company judgment, less the $45 with interest at the rate of 6 per cent. per annum, from the date of its rendition. SHACKELFORD and DICKSON, CC., con MILLER v. BAIN. (No. 13660.) (Supreme Court of Oklahoma. May 13, 1924. Rehearing Denied June 24, 1924. Application for Leave to File Second Petition for Rehearing Denied Sept. 23, 1924.) (Syllabus by the Court.) 1. Master and servant 89(3)—Employee obeying orders not beyond scope of employment. An employé who obeys the orders of the manager of his employer, and does necessary work in defendant's services, cannot be considered in a legal sense one engaged in work beyond the scope of his employment. 2. Appeal and error 889 (3)-Where petition amendable to conform with proof allowable, judgment not reversed for variance; allowable amendment to petition to conform with proof not formally made below is considered made on appeal. Where there is a variance between the allegations of the petition and the facts proved on the trial, yet, if it be a case where an amendment to the petition ought to be allowed to conform to the facts proved, the judgment will not be reversed on account of such variance. In such case, though no formal amendment was made, it will be considered as made by this court. 3. Master and servant 201(1)-Concurring negligence of master and fellow servant actionable. Where the master fails in his duty to the injured servant of furnishing reasonably safe premises, machinery, or tools, and this failure is the proximate cause of the injury, the fact that the negligence of a fellow servant also commingles with it as the proximate cause will not exonerate the master from liability. 4. Sufficiency of evidence; record held without prejudicial error. After an examination of the entire record, held, that the evidence reasonably supports the verdict and judgment in favor of the plaintiff; that the errors complained of, including the giving or refusing to give instructions, have not affected any substantial right of the de fendant. (Additional Syllabus by Editorial Staff.) PINKHAM, C. This was an action commenced in the district court of Creek county against the plaintiff in error, as defendant, by the defendant in error, as plaintiff, to recover damages for personal injuries alleged to have been sustained by the plaintiff while in the employ of the defendant. The parties will be referred to as they appeared in the trial court. The petition of the plaintiff alleged that on the date of the accident he was in the employ of the defendant, working in the warehouse of the defendant's business; that defendant was also the employer of one Jesse Adrianson, who was the owner of a team and wagon, and who was hired by the defendant to deliver goods of the defendant with his team; that the said team was a dangerous one and in the habit of running away, which the defendant well knew; that at the date of the accident the wagon was defective, in that the fifth wheel was broken; that plaintiff was employed to do the work in the warehouse only, and the said Jesse Adrianson was employed to deliver goods; that the defendant ordered plaintiff to go with Adrianson to assist in the delivery of goods on the afternoon of the accident; that plaintiff objected, but was told that he must either make said trip or lose his position; that Adrianson and the plaintiff then started on the trip; that because of the defective condition of the wagon in turning a corner of the street the fifth wheel caught, and caused said wagon "to slew sideways," thereby frightening the team, which ran away and overturned the wagon; that plaintiff's injuries were caused by the negligence of the defendant in furnishing said unsafe and runaway team and defective wagon. For answer defendant admits that he had in his employ Adrianson, but denies that he had any control over the team or that said team was employed by him in any way; that plaintiff for a long time prior to the accident had been in the habit of getting upon said wagon voluntarily and riding to and from his place of employment, and that upon 5. Master and servant 284 (3)-Scope of the occasion of the accident he voluntarily manager's authority for jury. went upon the wagon without any instruc Question of extent and scope of manager's tions from defendant; that plaintiff volunauthority is for the jury. Commissioners' Opinion, Division No. 5. Appeal from District Court, Creek County; Lucien B. Wright, Judge. tarily assumed the risk, and that plaintiff knew of the defective condition of the wagon and that the team was unsafe, but that defendant did not know either that the wag on was defective or that the team was un Mil-safe; that by reason of the fact that the plaintiff voluntarily assumed the risk, if any existed, he is guilty of contributory negligence. For reply the plaintiff denies all Action by S. A. Bain against B. F. ler. From a judgment for plaintiff, defendant appeals. Affirmed. Hughes, Foster & Ellinghausen, of Sa- the material allegations in the answer. pulpa, for plaintiff in error. The case was tried to a jury on the 25th L. H. Taylor, of Skiatook, for defendant day of October, 1921. After the testimony in chief of the plaintiff was closed, the de in error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |