(230 P.) ord convinces us that the finding and ruling of the trial court was correct, and that the judgment of the lower court should be affirmed. LABRIER v. LEEDY. (No. 14671.) (Supreme Court of Oklahoma. Sept. 30, 1924. Rehearing Denied Nov. 12, 1924.) : (Syllabus by the Court.) Taxation 527-"Payment" of taxes by bank check held not sufficient to discharge taxpayer from liability until check actually paid. Under the provisions of section 9651, Compiled Oklahoma Statutes 1921, the employment by a taxpayer of a bank check as a medium of payment of taxes assessed against him is not a valid payment so as to discharge such taxpayer from liability for said taxes until the check has been actually paid to the treasurer; and the statute is not satisfied merely by payment under such circumstances as would constitute a valid payment and discharge the taxpayer from liability, if the transaction had occurred between private individuals. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Payment.] Commissioners' Opinion, Division No. 5. Appeal from District Court, Cimarron County. The cause was submitted to the trial court and tried upon the following agreed statement of facts: "Comes now the parties hereto and agree that the following are and shall be taken as a true and correct statement of the facts in this trial: That "That the plaintiff, H. C. Labrier, was duly assessed for the year 1921 for taxable purposes, and his personal property and the real estate described in his petition were duly run on the tax roll of Cimarron county, state of Oklahoma, for the year 1921. That the taxes on all of said property amounted to $428.03. That on May 19, 1922, plaintiff paid said taxes to the defendant, W. H. Shepherd, as county treasurer of Cimarron county, state of Okiahoma, giving his personal check drawn on the Citizens' State Bank of Lamar, Colo., therefor, in said sum of $428.03. That defendant was at all times mentioned in said petition, and is now duly qualified and acting county treasurer of Cimarron county, state of Oklahoma, and that said defendant accepted said check in payment of said taxes, and issued tax receipt No. 1777 of the 1921 series therefor. said defendant indorsed said check and deposited the same with the First State Bank of Boise City, Okl. That said bank, in process of collection, forwarded said check to the Fourth National Bank of Wichita, Kan., and that said bank last named sent same to the First National Bank of Wichita, Kan. That said check, with other items for collection, was sent by said First National Bank of Wichita, Kan., to the said Citizens' State Bank Mandamus by H. C. Labrier against W. of Lamar, Colo., and said check was marked H. Shepherd, Treasurer of Cimarron Coun- paid and charged to plaintiff's account and dety, revived in the name of A. F. Leedy, check was presented to the said Citizens' State That at the time said livered to plaintiff. successor in office of defendant. From a Bank of Lamar, Colo., said bank was solvent judgment denying the writ, plaintiff and doing business as a bank and plaintiff had sufficient funds on deposit in said bank to pay said check. That when said check was presented for payment, or soon thereafter, said Citizens' State Bank of Lamar, Colo., drew a draft on the Central Savings Bank & Trust Company of Denver, Colo., in favor of said First National Bank of Wichita, Kan., as a remittance for said check and other items for collection, and that before said draft was paid said Citizens' State Bank of Lamar, Colo., failed and closed its doors and said draft was not paid. That thereafter First National Bank of Wichita, Kan., charged back to the Fourth National Bank of Wichita, Kan., the amount of said check in the sum of $428.03, and said bank charged said amount back to the First State Bank of Boise City, Okl., which last-named bank charged same back to the account of the defendant, W. H. Shepherd, as county treasurer of Cimarron county, state of Oklahoma, and that said defendant on April 30, 1923, canceled the copy of said tax receipt, held by him in his office, and marked said taxes on the property described in said petition as unpaid, and notified plaintiff that his tax receipt had been canceled and declared null and void, and notified plaintiff to again pay the amount of said taxes, and that said check with which said taxes were paid is hereto attached and marked 'Exhibit A.'" Affirmed. appeals. E. B. McMahan, of Boise City, for plaintiff in error. Geo. F. Short, Atty. Gen., and M. W. McKenzie, Asst. Atty. Gen., for defendant in error. FOSTER, C. This appeal is prosecuted to reverse a judgment of the district court of Cimarron county, denying an application for a peremptory writ of mandamus filed by H. C. Labrier, plaintiff in error, plaintiff below, against W. H. Shepherd, as county treasurer of Cimarron county, requiring said treasurer to restore tax receipt No. 1777 of 1921 series, issued to plaintiff in error in payment of taxes assessed against him for the year of 1921, and requiring the treasurer to mark such taxes "paid" on the 1921 roll. The term of office for the said W. H. Shepherd expired July 2, 1923, and said cause has been revived in the name of A. F. Leedy, the successor in office of W. H. Shepherd, who is the defendant in error here. Parties will be hereinafter referred to as they appeared in the trial court. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes check had not been paid on account of the failure of the drawee bank, occurring after the original check had been marked paid and charged to the account of the taxpayer. Judgment was rendered in favor of the, agent of the tax collector which substituted defendant denying plaintiff's application for a peremptory writ of mandamus. Motion for a new trial was filed and overruled, and the plaintiff brings the cause regularly upon appeal to this court upon petition in error and case-made. It is contended that the action of the trial court in denying and refusing a peremptory writ of mandamus was not sustained by sufficient evidence and was contrary to law. The vital question for determination on this appeal is the proper construction to be placed upon section 9651, Compiled Oklahoma Statutes 1921, which provides: "All state, county, township, school district, city, town, road, bridge or other taxes shall be paid to the county treasurer either in the lawful currency or by check or draft upon a bank therein stated, or by post office or express order; and it shall be unlawful for any county treasurer hereafter to receive in payment of any taxes to be collected by him, state, county, township, school district, city or town warrants: Provided, that no treasurer shall be required to execute a tax receipt for any taxes except those paid in lawful money, until the check, draft, post office or express order has been actually paid to him. And in case any such check, draft, post office or express order should prove to be worthless, it shall not operate as a payment of the tax for the payment of which it was given and any tax receipt or other receipt given therefor is hereby declared illegal and void." No case has been cited by the counsel on either side in which the statute quoted has been construed by the Supreme Court of this state as it applies to the medium payment employed by a taxpayer for the payment of his taxes. An examination of such statute, however, in the light of judicial expressions by courts of other states under similar but not identical statutes, leads us to the conclusion that it was the primary intent of the Legislature to enact a law by which the state or any political subdivision thereof could be placed in possession of its cash revenues supplied by public taxation without assuming any of the usual risks and liabilities resulting from the employment by the taxpayer for his own convenience of a bank check as a medium of payment. The statute under consideration does not contemplate that a payment by the taxpayer of his taxes to the revenue collector by means of a check would constitute a valid payment where the circumstances under which the check was paid would ordinarily discharge the taxpayer from liability if the transaction had occurred between private individuals; but the statute, we think, contemplates that the proceeds of said check must be actually paid to the tax collector, whether such proceeds had been remitted to him in cash or by a substituted check drawn If, in the instant case, the bank check drawn by the plaintiff had been presented by the First National Bank of Wichita, Kan., to the drawee bank and paid in cash to the First National Bank of Wichita instead of by means of a substituted check, and if the First National Bank of Wichita had undertaken to make a personal delivery of the cash to the First State Bank of Boise City and had lost the money while en route so that the cash never actually reached the possession of the defendant, it would not have constituted such payment to the defendant as would satisfy the requirements of the statute. The statute contemplates actual payment to the tax collector, not payment under such circumstances as would discharge the taxpayer from liability if the transaction had occurred between private individuals. While the statute under consideration recognizes the right of a taxpayer to employ a bank check as a medium of payment of taxes assessed against him, such right, we think, was given for the personal convenience of the taxpayer only, and he assumes the risk of negligence on the part of agents of the tax collector in collecting and forwarding the proceeds of such check to the tax collector after the check has been marked "paid" and charged on the records of the drawee bank to the account of the taxpayer. It is true that this statute may appear to work a hardship upon the individual taxpayer, but this hardship, however great it may appear to be, must not be permitted to weigh against the larger interests of the state in the collection of its public revenue. In the case of Skinner v. Mitchell, 188 Kan. 861, 197 P. 569, it is said: "The public is not bound by anything the treasurer does toward the acceptance of a check on a bank for the amount of the drawer's taxes, which is, at most, only a conditional payment. "Whatever might be the rule as between individuals, no estoppel can be urged against the county, and as the tax money belongs to the county, no acts or representations of the treasurer would estop the county until the money actually came into his possession and control." In 26 R. C. L. p. 376, § 335, it is said: "A check is not payment of a tax, until the check is paid, even if received by the collector as payment, and if the collector neglects to present the check for payment for several days and in the meantime the bank on which it be collected from the taxpayer." was drawn becomes insolvent, the tax may still In 37 Cyc. p. 1164, it is said: "The acceptance of a check on a bank for the We think that the statute was intended to protect the collectors of revenue in the different counties of the state against checks that might not be paid to them, to the end that disputes as to payment of taxes would not be likely to arise, whatever might be the medium of payment employed. It follows from the plain provisions of the statute under consideration that the authorities cited and relied upon by the plaintiff have no application. Whatever may be the rule governing the discharge of a drawer of a bank check as between individuals where the check has been presented and paid, by a solvent drawee bank in which the drawer had sufficient funds to meet the check by charging same to the account of the drawer and the employment of a substituted check as a medium of payment in lieu of cash, such rule can have no application where the transaction is between a taxpayer and a collector of public revenue, acting on behalf of the county. We are therefore of the opinion that the judgment of the trial court denying the peremptory writ of mandamus is correct, and the same is hereby affirmed. PEEVIEHOUSE v. PEEVIEHOUSE. (No. 14963.) 2. Insufficiency of evidence. Record examined, and held, that the defendant failed to sustain this burden of proof. Commissioners' Opinion, Division No. 2. Appeal from District Court, Okmulgee County; John L. Norman, Judge. Action by Sarah Peeviehouse against Wade Peeviehouse. From a judgment for plaintiff, defendant appeals. Affirmed. Fred M. Carter and C. M. Gordon, both of Okmulgee, for plaintiff in error. Steele & Boatman, of Drumright, and Creekmore Wallace, of Sapulpa, for defend ant in error. JARMAN, C. This was an action in the district court of Okmulgee county by Sarah Peeviehouse against Wade Peeviehouse to cancel a deed and quiet title to certain real estate. Judgment was for the plaintiff, and the defendant brings error. The plaintiff and the defendant were married in 1909 and resided on the allotment of plaintiff; she being a duly enrolled full blood Creek Indian. Later this allotment was sold and a portion of the proceeds was invested in a house and lot in the city of Okmulgee, the property in controversy, as their home, where the plaintiff and defendant resided for some time. On July 11, 1921, the plaintiff filed a divorce suit against the defendant, and on February 27, 1922, a decree of divorce was granted the plaintiff, and also the custody of the two minor children of plaintiff and defendant. The evidence discloses that after the divorce suit was filed the plaintiff and the defendant lived together and cohabited as husband and wife at intervals, and a few days before the deed in question was executed, which was on February 20, 1922, the defendant went for the plaintiff and carried her back to their home, where they lived and cohabited as husband and wife, and, while there, the plaintiff executed a deed to said property to the defendant, pursuant to an agreement that the defendant would not appear and make any defense and oppose the granting of a divorce to the plaintiff, and (Supreme Court of Oklahoma. Oct. 28, 1924.) that the defendant would take charge of, (Syllabus by the Court.) 1. Deeds 195, 196(2)-Husband has bur. den of showing consideration and good faith in procurement of deed from wife. In a suit by the wife against the husband to set aside and cancel a deed executed by her to him, while the confidential relation of husband and wife existed between the parties, on the ground of fraud, duress or failure of consideration, the burden of proof is on the husband to show that the transaction in procuring the deed was in good faith and for a valid consideration, and that the confidential relation of husband and wife did not influence the transaction. maintain, and support the two minor children. There was no other consideration for the deed. The deed was executed and left in the hands of the notary public, who took the acknowledgment, with the understanding that the same was not to be delivered until the divorce was granted, which was accordingly done. The trial court canceled the deed, upon the ground that the same was executed without any consideration therefor. The defendant discusses the several assignments of error under two heads: First, that the judg ment of the lower court is clearly against For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the weight of evidence; it being insisted | 3. Damages 131(1)-Street railroads that the undisputed evidence shows that there was a consideration for the deed, although there was no monetary consideration; second, that mere inadequacy of consideration is not sufficient to justify the canceling and setting aside of a deed. 114(7)-Evidence held to sustain judgment for personal injuries; $1,000 for personal injuries held not excessive. [1] Not only was there no consideration for the deed, as found by the trial court, but the entire transaction smacks of fraud. In the first place, the divorce was procured by collusion of the parties, and the agreement, entered into between the plaintiff and the defendant, whereby the plaintiff was to deed the property in question to the defendant, if he would not resist the divorce action, and would maintain and support the minor children, is null and void. Besides, at the time this deed was executed the confidential relation of husband and wife existed between the parties, and, under such circumstances, the burden of proof was on the defendant to show that the transaction in procuring the deed was in good faith and for a valid consideration, and that the confidential relation of husband and wife did not influence the transaction. Montgomery v. Montgomery, 41 Okl. 581, 139 P. 288; Board of Com'rs v. Hazelwood, 79 Okl. 185, 192 P. 217, 11 A. L. R. 709. [2] The defendant failed to sustain this burden of proof, and the judgment of the trial court should be affirmed. PITTSBURG COUNTY RY. CO. v. (Supreme Court of Oklahoma. Sept. 16, 1924. (Syllabus by the Court.) "Contributory negli In this case the evidence shows that the motorman saw the plaintiff something like 100 feet, and that her horse at the time had being and kicking and had gotten beyond the concome frightened and was rearing and plungtrol of the plaintiff, and finally commenced backing towards the car, and the motorman on said car failed to stop his car, but kept it going until it struck plaintiff's horse and knocked it down and injured her (the plaintiff). Under such circumstances, there is no place for the application of contributory negligence, in this case examined, and held, that the injury or the doctrine of last clear chance. Record to plaintiff was caused solely by the negligence of the motorman operating the street car that injured plaintiff, and that the verdict of $1,000, rendered under the verdict of the jury as sustained by the evidence, is not excessive and will not be disturbed on appeal. 4. Appeal and error 1067-Judgment not reversed for refusal of defendant's requested remote instructions where facts and law fairly covered by given charge. Where the general charge of the court covers the law of the case clearly and fairly, the case will not be reversed on account of the refusal to give certain instructions asked by the defendant, which only had a remote application to the facts and the law of the case. Commissioners' Opinion, Division No. 1. Appeal from District Court, Pittsburg County; Harve L. Melton, Judge. Action by Clara F. Palmer against the Pittsburg County Railway Company. From a judgment for plaintiff, defendant appeals. Athrmed. This action was commenced on May 5, 1920, by Clara F. Palmer, who was the plain1. Negligence 68 tiff below, and the Pittsburg Railway Comgence" defined. pany who was defendant below. The par"Contributory negligence" is such negli-ties will be designated as they appeared in gence on the part of the plaintiff as helped to the trial court. produce the injury complained of, or, in other words, "contributory negligence" is the failure on the part of the plaintiff to exercise that ordinary care and diligence which would be expected of a reasonably prudent person under like circumstances to avoid injury to himself. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Contributory Negligence.] The plaintiff alleged in her petition her cause of action against the defendant, wherein she states that on the 17th day of January, 1920, the defendant was operating a street railway system occupied and used conjointly with the traveling public along the center of North Main street in the city of McAlester to North McAlester, extending from the main business section of North McAlester south along said North Main street for more than a block beyond where the same crosses or intersects with the Missouri, Kansas & Texas Railway Company's right of way; that on said date in said street about 75 feet south of the Missouri, Kansas & Texas Railway's crossing, said defendant, in the operation of one of its street cars, carelessly, recklessly, and negligently run upon and against the plaintiff, thereby causing great (230 P.) and permanent injury to her; that at the time she was injured, she was riding horseback along said Main street going south, using and occupying that portion of the street along and to the right of the defendant's car tracks, and immediately after crossing the Missouri, Kansas & Texas right of way, the horse which plaintiff was riding, and which had theretofore at all times been gentle and in no wise vicious, suddenly became frightened and whirled and commenced backing parallel with and close to defendant's street car tracks, and was practically unmanageable for a distance of approximately 50 feet, and backed upon the tracks of the defendant and was there struck by the car of the defendant, throwing plaintiff from said horse and in front of the car of the defendant, injuring her as aforesaid; that plaintiff was exercising due care and caution and using every effort and means with in her power to avoid injury to herself; that said injuries were due to the carelessness and negligence of the employees and servants of the defendant, in that the motorman in charge failed to keep a lookout ahead of the car, as the same was crossing the Missouri, Kansas & Texas tracks, and as the same was approaching the point where the plaintiff was endeavoring to gain control of her horse; and that said motorman did not stop or slacken the speed of said car when he saw, or could have seen by the exercise of ordinary care, the dangerous position of the plaintiff. She further alleges that she suffered painful and permanent injuries as follows: Bruises and abrasions on and about the head; musculo-spiral nerve in right arm crushed; ligaments of both knees lascerated and great and serious nervous shock to her system. That by reason of the injuries aforesaid plaintiff suffered great and excruciating pain, and was confined to her home for several weeks, and has been incapacitated from the date of said injury up to the time of the filing of this suit from pursuing her profession as a practicing physician, and that she has been damaged in the sum of $5,000, for which she prays judgment. Defendant answered by way of general denial, admitting its corporate existence, and that it was operating a street railway system in the city of McAlester at the time of the accident complained of. For a separate defense the defendant sets up that if it was guilty of negligence, that just prior to and at the time of said accident the plaintiff was guilty of negligence and carelessness which contributed to said accident, in that she did carelessly and negligently ride, manage, and control her horse so that the horse became unruly and backed into the car of this defendant, thus causing her injuries. Plaintiff replied to the answer of the defendant and denied that she was guilty of negligence and carelessness, and denied that she was guilty 230 P.-17 of contributory negligence in any respect whatever. On the issues thus joined, the case went to trial before the court and a jury. The evidence tends to show that just prior to and at the time of the accident the plaintiff was riding south from North McAlester along the street in which said street car company operated its cars, and that about the time she was crossing the right of way of the Missouri, Kansas & Texas Railway Company her horse took fright at an engine, standing on the tracks of the Missouri, Kansas & Texas Railway Company, which was popping off steam at the time, and commenced rearing and plunging down the street, and she was using the bridle in trying to control said horse and had gotten some distance ahead of the street car, which was going in the same direction. The motorman on the street car states that just after he had crossed over the right of way of the Missouri, Kansas & Texas Railway, he discovered the plaintiff about 85 or 90 feet in front of him; that her horse was rearing and kicking, and she was jerking on the bridle trying to get him under control; that he was going about 10 or 12 miles an hour on the car; that the horse finally commenced backing towards the street car track, and he slowed down the speed of the car, and that the horse backed 25 or 30 feet and finally backed against the front end of his car and was knocked down, and the car passed over him, and he was 5 or 6 feet under the car when he got the car stopped; that when the horse was knocked down the plaintiff was thrown off to one side in the street and injured as she complained of in her petition. There is some slight controversy between the testimony of the motorman and Mrs. Palmer, but the difference is too slight to be noticed. We think that both parties were somewhat frightened at the time and did not remember just what occurred, but the testimony shows that the injury occurred just about as above stated. There were other witnesses testified in the case, but their testimony throws very little light on the facts of just how the ac cident occurred, because each witness sav the accident from his viewpoint, and there is always a difference in the testimony given under such circumstances. There were a number of instructions requested by the defendant, some of which were refused, and some of which were given, and some modified and given. The court delivered quite an extensive set of general instructions. Exceptions were saved by defendant to the instructions requested and modified and to nearly all of the instructions given by the court. After the argument of counsel, the jury retired and returned a verdict in favor of the plaintiff. Defendant filed a motion for new trial, which was overruled, time taken to prepare and serve case-made, |