bound to do. The appellant says that the attorney ought to have informed him of his rights, but surely it would not only have been improper but would have been presumptious on the part of the attorney to advise him concerning his business after he had refused to accept his offer of employment. The charge against the administrator is not made clear by either the brief or the evidence, but we think there is no cause for the complaint that he misled the appellant. On the contrary, he not only gave the notices required by law to be given, but went to the appellant personally, told him he had been appointed administrator of his mother's estate, and that, in order to have his judgment adjusted, It would be necessary to present it as a claim against the estate. It would hardly seem that good conscience or honesty required more.

We conclude, therefore, that the appellant has lost his right to collect his judgment by reason of his own laches, and not through any fault of the respondents. The judgment will stand affirmed.

MOUNT, a J., and RUDKIN, HADLEY, ROOT, CROW, and DUNBAR, JJ., concur.

(17 Okl. 383)

BETZ v. WILSON. (Supreme Court of Oklahoma. Sept. 6, 1906.) 1. LIMITATION OF ACTIONS-PLEADING.

Where the pleadings on their face do not show that the cause of action is barred by the statute of limitations, the statute is not available as a defense to the action unless it is specially pleaded.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, 678.]

2. EVIDENCE-PRESUMPTIONS-LAWS OF ANOTHER STATE.

Where a party desires to avail himself of the usury laws of another state, he must plead and prove the laws of such state: and in the absence of such pleading and proof the court will presume the laws of such statc are the same as the laws of this territory.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 380; vol. 20, Evidence, § 101.] (Syllabus by the Court.)

Error from District Court, Lincoln County; before Justice John II. Burford.

Action by W. W. Wilson against F. L. Fackler and J. A. Betz. Judgment for plaintiff, and defendant Betz brings error. Affirmed..

J. B. A. Robertson, for plaintiff in error. Hoffman & Embry, for defendant in error.

HAINER, J. This was an action brought by the defendant in error, W. W. Wilson, plaintiff in the court below, against F. L. Fackler and J. A. Betz, to recover a balance alleged to be due on a promissory note executed by the defendants to the plaintiff in the state of Iowa. No service was had on the defendant Fackler, and the issues be

tween the plaintiff and the defendant J. A. Betz were tried to a jury, and at the conclusion of the evidence the court sustained a motion to direct a verdict in favor of the plaintiff, and judgment was rendered for the plaintiff for the sum of $304. From this judgment the defendant Betz appeals.

It is contended that the court erred in holding that the defendant's amended answer was not properly verified. There was no error in this ruling of the court. The verification purported to have been taken by T. A. Neal, clerk of the district court, but the evidence clearly and conclusively establishes that the jurat to the purported oath was not signed by T. A. Neal, that it was merely attached by the typewriter, and that no oath was in fact administered to the defendant. The plaintiff in error was present at the time of the ruling of the court on this question, and he did not ask leave of court to verify the amended answer. Had he desired to put in issue the execution of the note, he should have obtained leave of court to verify his amended answer. Having failed to do so, he clearly waived his right to put in issue the execution of the note.

It is contended that the court erred in overruling the defendant's demurrer to the evidence, on the ground that the action was barred by the statute of limitations. This objection is not tenable, for the reason that the defendant failed to plead that the action was barred by the statute of limitations. And since it did not appear on the face of the petition that the action was barred, it could not be raised by demurrer to the petltion, or by demurrer to the evidence, and was not available as a defense. Where the statute of limitations is relied upon as a defense to an action, it must be pleaded, unless the action appears to be barred upon the face of the petition. In Chellis v. Coble, 15 Pac. 505, the Supreme Court of Kansas held that, where the pleadings do not on their face show that the cause of action or the relief sought is barred by the statute of limitations, the statute must be specially pleaded, in order that it may be available as a defense to the action. In Mitchell v. Ripley (Kan. App.) 49 Pac. 153, it is said: "The question of statutory bars is a matter of defense, and, unless the pleadings show upon their face that the cause of action cannot be maintained, they must be specially pleaded." In Davis v. Millikan (Kan. App.) 54 Pac. 512, it was said: "The statute of limitations was not pleaded, and therefore was not available as a defense. We hold that this question was not raised by the demurrers to the evidence."

It is next contended by the plaintiff in error that the note was usurious under the laws of the state of Iowa, and that therefore the court erred in sustaining the motion to direct a verdict. It appears that

the note sued on in this action was executed in the state of Iowa, and it bore interest at the rate of 8 per cent. per annum until maturity, and after maturity it provided that it should bear interest at the rate of 10 per cent. per annum. But this defense was not available to the defendant, for the reason that he failed to plead the usury laws of the state of Iowa. Before the defendant could avail himself of this defense, it was necessary to plead and prove the statutes of The state of Iowa. And, where a party fails to plead the statutes of another state, the court will presume the laws of such state are the same as the laws of this territory. Greenville National Bank v. Evans-Snyder-Buel Co., 9 Okl. 353, 60 Pac. 249.

The defendant failed to plead or prove a defense to the plaintiff's cause of action, and hence the court properly sustained the motion of the plaintiff to direct the jury to return a verdict for the plaintiff. We find no error in the record which would justify a reversal of this cause.

The judgment of the court below is affirmed.

BURFORD, C. J., having presided in the court below, not sitting. All the other Justices concurring.

117 Okl. 204)

CHAMPION v. KIETH. (Supreme Court of Oklahoma. Sept. 5, 1906.) 1. PHYSICIANS AND SURGEONS RULE OF RESPONSIBILITY.

A physician or surgeon is never considered as warranting a cure, unless under special contract for that purpose. His contract as implied by law is that he possesses that reasonable degree of learning, skill,' and experience which is ordinarily possessed by others of his profession, that he will use reasonable and ordinary care and diligence in the treatment of the case which he undertakes, and that he will use his best judgment in all cases of doubt as to the proper course of treatment. He is not responsible for damages for want of success, unless it is shown to be the result of want of ordinary skill and learning, such as ordinarily possessed by others of his profession, or for want of ordinary care and attention. He is not presumed to engage for extraordinary skill or for extraordinary diligence or care, nor can he be made responsible in damages for errors in judgment, or mere mistakes in matters of reasonable doubt or uncertainty.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 39, Physicians and Surgeons, §§ 21-30, 32.] 2. SAME EVIDENCE INSUFFCIENT-WHEN.

On the trial of an action against a physician and surgeon for damages for negligent treatment and want of ordinary care and attention, where it appears that such surgeon attended a patient suffering from an injury to the hip joint, and at the time called another physician of experience and standing to aid him in consultation and making an examination of the injury, and the two make a thorough examination, and arrive at the conclusion therefrom that the thigh is dislocated, and thereupon set the same, and place it in a plaster of paris cast, and afterwards both physicians visit the patient continuously until he moves away from the city, and where, in making the diagnosis as

to the injury sustained and the subsequent treatment thereof, every precaution is taken and every method used which other surgeons possessed of a reasonable degree of learning, skill, and experience would have used under like cir cumstances, but the treatment is not successful, and results unsatisfactorily, held, that such evidence does not establish a case of negligence on the part of the attending physician, and does not show a failure on his part to use ordinary skili, care, and attention; and, further, held. that, under such circumstances, such surgeon is not responsible in damages for want of success. [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Physicians and Surgeons, § 43.]

(Syllabus by the Court.)

Error from District Court. Garfield County; before Justice James K. Beauchamp.

Action by Perry Kieth against C. F. Champion. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

This was an action brought by the defendant in error against the plaintiff in error to recover damages for injuries alleged to be the result of negligence and improper treatment of the defendant in error while under the care of the plaintiff in error, as a surgeon. The record discloses that the defendant in error on the 5th day of February, 1903, while handling a sack of grain in a flouring mill in the city of Enid, where he was working, turned suddenly, and his hip gave away; that the plaintiff in error was called to attend him. and, upon answering the call, went to the mill and found the defendant in error lying on the floor. It being too cold to operate there, the surgeon had the defendant in error removed to a nearby office. He then undertook to examine the hip. but the defendant in error complained that it hurt him, and that he could not stand to have it examined. The plaintiff in error gave the patient chloroform, and called Dr. H. C. Bowers to assist him in the operation. When Dr. Bowers arrived, they examined the patient, as the record discloses, very thoroughly, and arrived at the conclusion that the thigh was dislocated They set it, and put it in a plaster of paris cast, had the patient taken home, and afterwards both visited him three or four times until he left the city of Enid. As to the care and treatment that was given the patient, there seems to be no dispute, the evidence on this subject being that of the plaintiff in error and his assistant, Dr. H. C. Bowers, their testimony being uncontradicted. The evidence also discloses that the plaintiff in error was a practicing physician and surgeon of 14 years' experience, a graduate of the Louisville Medical College, of Louisville, Ky., having taken several postgraduate courses; that Dr. H. C. Bowers is also a reputable surgeon of several years' experience, a graduate of the University of Louisville, having attended the college of St. Bartholomew at London, England, and having had experience in treating a large number of cases of similar character. As shown by his testimony, he had treated some 30 or 40 cases of hip dislocation and fracture. The

record also discloses that some time prior to the injury the defendant in error had been kicked on the hip by a horse, and at the time of the treatment of the injury here that the flesh about the hip was yet discolored from the effects of the kick. The defendant in error, at the time of the trial, had not fully recovered from the injury, and was unable to perform any great amount of manual labor. It was the contention of the defendant in error at the trial that the injury, instead of being a dislocation of the hip joint, as diagnosed by the physicians at the time of treatment, was in fact a fracture of the surgical neck of the femur, and that the negligence consisted not in the fact that the plaintiff in error was not a physician of ordinary skill, but in that he did not use the ordinary care necessary to make a correct diagnosis of the injury, and in not giving the patient treatment for the injury actually sustained, viz., that of fracture, but, on the contrary, treating the patient for dislocation, the result being that the plaintiff failed to recover. A large number of expert witnesses were called and examined, and, as is usual in such cases, the testimony covered a broad field. To maintain the case of the defendant in error at the trial, several medical witnesses were produced, who had made examination of the patient long after the injury, and from their diagnoses they seemed to be of the opinion that the injury was a fracture of the surgical neck of the femur, and that they could discover no dislocation. This, briefly, states the facts of the case. The remaining facts appear in the opinion.

Robberts & Curran, for plaintiff in error. H. J. Sturgis, Manatt & Sturgis, and W. H. Hill, for defendant in error.

PANCOAST, J. (after stating the facts). A number of errors are alleged in the petition in error, but only one is argued in the brief: that is, that the evidence at the trial failed to establish negligence or want of care. At the outset it might be well to state the rule of responsibility governing practicing physicians and surgeons under such circumstances. It is that: "He is never considered as warranting a cure, unless under a special contract for that purpose. His contract, as implied by law, is that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by others of his profession, that he will use reasonable and ordinary care and diligence in the treatment of the case which he undertakes, and that he will use his best judgment in all cases of doubt as to the proper course of treatment. He is not responsible for damages for want of success, unless it is shown. to be the result of want of ordinary skill and learning, such as ordinarily possessed by others of his profession, or for want of ordinary care and attention. He is not presumed to engage for extraordinary skill or for extra

ordinary diligence or care, nor can he be made responsible in damages for errors in judgment, or mere mistake in matters of reasonable doubt or uncertainty." Tefft v. Wilcox, 6 Kan. 61; Branner v. Stormont, 9 Kan. 51; Bigney v. Fisher (R. I.) 59 Atl. 72: Ewing v. Goode (C. C.) 78 Fed. 442; State v. Housekeeper (Md.) 16 Atl. 382, 2 L. R. A. 587, 14 Am. St. Rep. 340; Cayford v. Wilbur (Me.) 29 Atl. 1117; O'Hara v. Wells (Neb.) 15 N. W. 722; Langford v. Jones (Or.) 22 Pac. 1069; Martin v. Courtney (Minn.) 77 N. W. 815. This rule of responsibility is treated in many different ways, but the one above quoted, we think, substantially gives the rule in a succinct form.

Now, applying the rule to the evidence in this case, is the evidence sufficient to establish a case against the plaintiff in error? There was no attempt to show that the plaintiff in error did not possess that reasonable degree of learning, skill, and experience which is ordinarily possessed by others of his profession. The effort was to show that he did not use reasonable and ordinary care and diligence in the treatment of the case: in other words, that he did not properly diagnose the case, and treated it as one for dislocation, when he should have observed that there was a fracture, and treated it as such. The testimony of the plaintiff in error, and of his assistant, Dr. Bowers, abundantly shows that there was a dislocation. It seems from their testimony that the dislocation was easily determined. There was, however, some little apprehension that there might be a fracture, but from the extended examination made it could not be determined; but, in order to be doubly sure, they placed the injured limb in a plaster of paris cast, which they claim would have been proper treatment not only for dislocation, but for fracture as well. There is nothing in the record that indicates that the plaintiff in error and his assistant did not use all methods at their command to make a correct diagnosis of the injury.

It is claimed, if there had been a fracture, that while in many cases it might be difficult to diagnose, yet ordinarily the fact could have easily been ascertained. The plaintiff in error in this case, according to the testimony of both physicians, did make an effort to determine whether or not there was a fracture, and failing, as they say, to determine any indications thereof, proceeded as for a dislocation. On the trial below all the witnesses for the defendant in error conceded that a fracture of the neck of the femur was hard to detect, and that the best surgeons sometimes found it impossible to determine, stating that some of the best medical authorities declared that it is sometimes very hard to distinguish between dislocations and fractures of the surgical neck of the femur. The evidence also abundantly shows that injuries to the hip, whether that of fracture or dislocation, even under the most

skillful treatment, often result very unsatisfactorily, and in diseased conditions more or less permanent in their character.

To establish the claim of unskillful and negligent treatment, Dr. Baker was called by the defendant in error. It appears that he had examined the patient several months after the injury, and from his examination testified, among other things, as follows: "There was no dislocation that I could determine. We arrived at the conclusion it was a fracture. The fracture was of the surgical neck of the femur. In my opinion, if it wasn't a fracture-I don't say positively it was; I don't think I said positively it was a fracture; I could have been mistaken in regard to it being a fracture, but my opinion was it was a fracture."

Dr. Way, being called by the defendant in error, testified, among other things, as follows: "We partially made a diagnosis of fracture of the neck of the femur, but, as has already been testified to here on the witness stand, there were other things necessary to make the examination complete; I mean the X-ray photograph." Being asked to tell the jury whether or not such a fracture as an unimpacted fracture of the neck of the femur would or would not have been easily detected, he answered: "Well, I would say that it is hard to detect, because our best writers claim sometimes it is impossible for us to detect it. Wythe is one of our best He claims it is hard sometimes to distinguish between dislocation and fracture of the neck of the femur."

As stated before, the testimony covered a wide range, but the above just quoted is that bearing directly upon the point under discussion. The testimony of other witnesses is practically the same. The question now arises, was there negligence in the treatment of this case? If so, where is the evidence that shows it? Even admitting that there was a mistake in the diagnosis of the case, still the evidence, in our opinion, fails to establish negligence. It might be here observed that even if the testimony of the defendant in error showed that there was in fact a fracture, which we do not think it does to any reasonable degree of certainty, still the examination having been made long after the injury, and at the time when all of the witnesses admit that a better and more satisfactory examination could be made than at the time of the injury, it would be the subject of some criticism upon that ground. Not a single witness testified with any reasonable degree of certainty that a fracture actually did exist.

The testimony also shows that several attempts had been made to take a photograph with an X-ray machine, and while the testimony of the witnesses shows that that is the only method that can be employed to determine with reasonable certainty whether or not a fracture or dislocation exists, yet that is not always satisfactory, as a proper photo

graph cannot always be had, owing to the thickness of the parts and the shadows of the large bones, and it is only with the very best of these machines that a correct photograph can be obtained. It might be noticed here that the testimony of expert witnesses, in cases of this kind, is only at best opinionative; there is usually nothing in it very definite or conclusive. Opinionative testimony is never more than merely persuasive.

Counsel for the defendant in error refer to a rule often laid down by this court, that the verdict of a jury which is reasonably supported by the evidence will not be disturbed on appeal, but that is not the question before The question is whether there is any evidence to support the verdict; in other words, wherein does the evidence show carelessness and negligence, either in diagnosing the case or in treating it afterward? Even admitting that there was a fracture of the neck of the femur, what could have been done to determine such injury other than what was done? It does not follow, because the treatment resulted unsatisfactorily, that therefore the surgeon was negligent. There is no claim that the examination was not thorough and carefully made, nor that the physician lacked the knowledge necessary to treat such cases; and we think it is a matter of common knowledge that in very many cases of like injuries, as well as others, under the most skillful treatment, nature fails to respond properly, and the result is permanent injury. We also know that some persons recover readily from injuries that are the most serious, in fact cases that seem at first to be almost if not quite hopeless, while others fail to recover from very slight injuries. This is not because of any want of skill or of the negligence of the surgeon, but it is because of the inherent recuperative power in the patient on the one hand, and the lack thereof on the other.

In the trial of cases such as the one before us, courts should proceed with great care, as frequently there is liability that prejudice will creep into the minds of the jurors, and ofttimes a jury is liable to arrive at unwarranted conclusions; and from a reading of the entire record it would seem that such is the case here, as the record discloses that the plaintiff in error is a reputable surgeon, possessing the ordinary skill and ability required, that he used the precaution of calling in an assistant with perhaps even more skill and knowledge than he himself possessed, that their examination was very thorough, that all precautions and appliances at their command were used, that the treatment given was proper and skillfully applied, and that the attendance afterwards was diligent on the part of both surgeons, the result alone, however, being unsatisfactory. To hold the plaintiff in error liable in damages under such conditions would amount to a warranty of a cure, and this, too, in a case treated on his part as one of

charity, without any expectation of a fee or an intent to charge one.

Having reached the conclusion that the evidence fails to sustain the verdict, the judgment of the court below must be reversed, and the cause remanded for new trial. It is so ordered. All the Justices concurring, except GARBER, J., not sitting.

(17 Okt. 295)

NORTON et al. v. STROUD STATE BANK. (Supreme Court of Oklahoma. Sept. 5, 1906.) 1. VENDOR AND PURCHASER FAILURE OF TITLE-REMEDIES OF VENDEE.

In the absence of fraud or warranty, the purchaser of real property takes the title at his own risk, and, if he has not taken the precaution to secure himself by covenants, he has no remedy for his money, even on failure of title.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, $$ 965-972.] 2. GUARDIAN AND WARD-LEASE OF WARD'S PROPERTY-PRESUMPTIONS.

Where a guardian, who has been duly and legally appointed by a competent court having jurisdiction of the subject, makes a lease of the premises of his ward, in the absence of proof to the contrary, the court will presume that all necessary legal steps have been taken, and that the guardian has secured all necessary orders to authorize him to make such lease, and the burden is upon the party attacking the validity of the lease to establish the facts necessary to show its illegality.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Guardian and Ward, §§ 192-195, 447, 448.]

3. BILLS AND NOTES-ACTIONS-DEFENSESRENT.

Where the lease is made and entered into under the laws of Arkansas, and where that law provides that, "when any minor shall be the owner of any improved lands. it shall be the duty of the guardian of such minor, annually, to rent such land to the highest bidder, giving ten days' previous public notice of the time. and place of renting the same," and where a party takes a lease of the lands of a minor, through the guardian of said minor, without the law as to the giving of public notice, and as to the highest bidder, being complied with, and then assigns said lease to a third party, who enters into possession under said lease, and has actual, uninterrupted, peaceable possession, and receives the benefit of the leased premises, such third party cannot set up, the invalidity of the lease as a defense to a note given in consideration of the assignment of the lease.

4. SAME.

In an action on a note given in consideration of an assignment of a lease, without warranty, in the absence of fraud, the assignee cannot set up a defect of title. He stands like a purchaser under a quitclaim deed.

(Syllabus by the Court.)

Error from District Court, Payne County; before Justice Bayard T. Hainer.

Action by the Stroud State Bank against Albert Norton and F. A. Norton. Judgment for plaintiff. Defendants bring error. firmed.

This was an action brought in the district court of Payne county to recover on a certain promissory note held by the defendant in error as collateral security. The case was tried on a stipulation of facts agreed to by

the parties. By the terms of said stipulation, the following facts are admitted: On the 20th day of February, 1903, M. W. Lynch entered into a rental contract with Will H. Jones, the legal guardian of Willie Davis, a minor eight years old, and a citizen of the Creek Nation, for the southwest quarter of section twenty-eight (28), township seventeen (17) north, of range seven (7) cast, in the Creek Nation of the Indian Territory, for a period of five years from the date of the lease. Said lease was afterwards' assigned by said Lynch to Albert Norton and F. A. Norton, plaintiffs in error herein, and they, in consideration of the assignment of said lease, executed their note for $150 to Lynch, and the plaintiff below, defendant in error here, received said note from said Lynch as collateral security to secure a debt of $300 owing by said Lynch to the Stroud State Bank, defendant in error here, and that the land leased was cultivated and improved land, and had 15 or 20 acres in cultivation, and the remainder was wild land, with one house. The note sued on is as follows: "$150.00

Stroud, Oklahoma, 3-20-1903.

"Nov. 15th days, without grace, after date, for value received, we, as principal, promise to pay to the order of M. W. Lynch of Stroud one hundred and fifty dollars, with interest at one per cent. per month from date, interest to become as principal when due and bear the same rate of interest.

"The makers and endorsers of this note hereby severally waive presentment for payment, notice of payment, protest and notice of protest, and all exemptions that may be allowed by law, and valuation and appraisement laws waived, and each signer and endorser makes the other an agent to extend the time of this note; and if this note should be placed in the hands of an attorney or collected, we, or either of us, agree to pay $ attorney's fees, and all other

It was agreed by the parties in said stipulation as follows, omitting the caption as to court and title: "It is stipulated by the parties hereto that all the allegations of plaintiff's pleadings are true. That section No. 3498 of Mansfield's Digest of the Laws of Arkansas was, before the execution of the contract herein, extended to and put in force in the Indian Territory, except in so far as it was and is locally inapplicable, or in conflict with the several acts of Congress and treaties made with the Creek Indians, all of which acts of Congress and treaties with such Indians, so far as the parties hereto may desire, are admitted and in evidence. That the land in controversy is 160