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nesses, including physicians at the Coffey- the intervening negligence or carelessness of ville hospital, who testified that his left leg the employer's selected physician would be was about four inches shorter than his right, to defeat one of the purposes of the act. with his toes turned toward his ankle; that Under workmen's compensation acts an emthe upper end of the fractured femur was ployer is liable for all legitimate consequencdrawn out and the lower femur was drawn es following an accident, including unskillfulup, thereby causing the shortening of the leg. ness or error of judgment of a physician furThese physicians also testified that their ex- nished the injured employé as required by amination of the fractured leg disclosed it section 4 of our Compensation Act. See Sams had not been rebroken since it was first set. v. Komas & Dorros, 2 Cal. Ind. Acc. Com. [1, 3] The commission, in its opinion, held 203; Schofield v. Contractors Mutual Liabilthat if the claimant's leg was properly set ity Ins. Co., 1 Mass. Ind. Acc. Bd. 95; Johnat the Bartlesville hospital by the respond- son v. Pacific Surety Co., 1 Cal. Ind. Acc. ent's physician and he left the hospital pre- Com. (Part 2) 560; Stockwell v. E. M. Waymaturely without the consent of said physi- mire, 1 Cal. Ind. Acc. Com. (Part 2) 225; cian or authorities in charge, and that such Shirt v. Calico Printers' Association (Eng.) action aggravated the injury and resulted in 78 L. J. K. B. 528, (1909) 2 K. B. 51, 100 L. the rebreaking of his leg, he would not be T. 740, 25 T. L. R. 451, 53 Sol. Jo. 430, 2 B. entitled to recover the compensation fixed by 342, c. a.; Dunnigan v. Cavan, (1911) S. C. the law for the loss of a leg; but that, if the 579, 48 S. L. R. 459, 4 B. 386; Beadle v. Milclaimant's leg was improperly set by petition- ton & Others, (1903) 114 L. T. 550, 5 W. C. C. ers' physicians and a vicious union resulted 55; Harrison v. Ford, (1915) Eng. Ct. of Aptherefrom, the loss of the leg would be upon peal, 8 B. W. C. C. 429; Bradbury's Workthe respondents. mens' Compensation, 3d Ed. (1917) pages 407-410; Dawbarn on Employers' Liability (4th Ed. 1911) pp. 104-111; Beverley's Workmen's Compensation Cases, § 20, pp. 103–105; Dawbarn's Workmen's Compensation Appeals 1910–1912, § 1, and 1912–13, § 1.

But it is urged by petitioners that the commission erroneously overruled its motion to quash the depositions of certain witnesses taken at Coffeyville, Kan., and considered the testimony therein contained in making its findings of fact to the prejudice of petitioner's rights.

We agree with this view. It is true that an injured workman cannot recover compensation for an increase of disability where he himself caused the aggravation. See Pacific Coast Casualty Co. v. Pillsbury-Industrial Accident Comm., 171 Cal. 319, 153 Pac. 24, and cases cited therein. This is on the theory that the increase of disability was a subsequent injury occasioned by the negligence of the injured person himself and therefore the employer is not liable. But this doctrine has no application to this case, for, after a full hearing, as above stated, the commission found that the amputation of claimant's leg commission is authorized to cause the deposi[2] Under article 3, § 12, of the act, the resulted from his injury aggravated by im- tions of witnesses residing within or without proper treatment by petitioners' physicians, the state to be taken in the manner prescriband that his leaving the hospital prematurely ed by law for depositions in civil actions in

did not affect his condition. This was a question of fact determinable by the commission under the Workmen's Compensation Act, and its finding is conclusive. Section 10, art. 2, c. 246, Session Laws 1915; Raulerson V. State Industrial Commission et al., 76 Okl.

8, 183 Pac. 880; Board of Com'rs of Cleveland County v. Barr et al., 173 Pac. 206.

courts of record, and counsel for petitioners say that sufficient notice was not given of the taking of said depositions of the witnessRevised Laws 1910. In order for us to suses at Coffeyville, as provided by section 5079, tain this contention, we would have to take judicial notice of the schedule time of the departure of the trains from the place where the notice was served and their arrival at the place designated in the notice for the taking of said depositions. This we cannot do. Coverdale v. Boatman, 193 Pac. decided September 14, 1920, not yet officially reported.

We are aware that, in negligence cases not arising under compensation acts, many courts hold that the master's liability ceases when he exercises reasonable care in selecting competent physicians or surgeons. But workmen's compensation acts are a departure from cases of liability resulting from negligence and fix specific amounts of recovery for specific results of accidents. To deny recovery for the ultimate result of the accident where the disability has been increased by NEILL, HIGGINS, and BAILEY, JJ., concur.

The award of the commission is affirmed.

KANE, PITCHFORD, JOHNSON, Mc

(193 P.)

(79 Okl. 271) and John Watkins, all of Muskogee, for deMUSKOGEE ELECTRIC TRACTION CO. v. fendant in error. COOPER. (No. 9758.)

The plaintiff for her cause of action against the defendant alleged, in substance, that she was a passenger riding on one of the street cars of the defendant company; that while attempting to depart from the said car at her destination and that while plaintiff was leaving said car as carefully and diliWhere the evidence is sharply conflicting, gently as possible said defendant's agent, the credibility of witnesses being a matter ly- servant, and employê in charge of the same ing peculiarly within the province of the trial suddenly and in an unexpected manner startcourt and the jury, the Supreme Court can-ed the car, jerking the plaintiff furiously, not pass thereon on appeal without invading carelessly, and negligently, thereby throwing the province of the trial court and the jury.

It is quite true, as counsel contend, that there is no evidence in the record specifically stating that the plaintiff used due diligence in leaving the car. There is evidence, however, tending to show exactly what the plaintiff did, and in our opinion this evidence rea

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

sonably tends to show that the plaintiff used due diligence in alighting. Counsel for de fendant in their brief summarize the testimony of the plaintiff on this point as follows:

"The car stopped; I got up and started out of the car; had a bucket of lard and a package of turnip greens and some ham in my hand; walked out on the step and got hold of the car and got on the step; took hold of the handle with my left hand. This was near the front end of the right-hand side of the car. just got on the step, and then the car started and threw me, and that is the last I remember."

that where the law applicable to the facts material to the issues joined by the pleadings in an action is fairly and fully submitted to the jury by the court, the verdict of the jury, based upon conflicting testimony, will not be disturbed if it is reasonably supported by the testimony in the case. A. T. & S. F. Ry. Co. v. Eldridge, 41 Okl. 463, 139 Pac. 254, 48 L. R. A. (N. S.) 509; Texas Co. v. Collins, 42 Okl. 374, 141 Pac. 783; Lowenstein v. Holmes, 140 Okl. 33, 135 Pac. 727; St. L. & S. F. Ry. Co. v. Kerns, 41 Okl. 167, 136 Pac. 169; Avants v. Bruner, 39 Okl. 730, 136 Pac. 593; St. Paul Fire & Marine Ins. Co. v. Peck, 40 Okl. 396, 129 Pac. 117; Cummings v. Bridges, 42 Okl. 200, 140 Pac. 1146; City of Guthrie v. Snyder, 43 Okl. 334, 143 Pac. 8; Smith v. Bell, 44 Okl. 370, 144 Pac. 1058.

This, we think, made a case for the plaintiff on the point now under consideration. The defendant tried its case upon the theory that the plaintiff alighted from the car in safety, and thereafter stepped in a hole in the street near the car line and was injured. On the question of the diligence of the plaintiff in leaving the car and the manner of injury, the testimony of the motorman, as summarized by counsel for defendant in their brief, was as follows:

[2] Counsel for defendant in their brief complain that the plaintiffs trumped up a case against their client, and succeeded in sustaining it by false testimony. The testimony of the witnesses for the respective parties was, as we have seen, in sharp conflict, and undoubtedly one side or the other was "When I opened the door the plaintiff got stretching the truth. But as the question, up and walked to the door, took her bundles, Which side was it? involves passing upon the and stepped out in the usual manner. The car credibility of the witnesses, a matter pecuwas standing still, and was not in motion when liarly within the province of the trial court she stepped off. I saw her after she had got-and the jury, we cannot, without encroaching ten on the ground. I never paid any further attention to her then. She was three or four feet away from the car when I last saw her. She was standing up, and she didn't fall at that time, and there was no accident at that time. I drove the car on out to the end of the line, and when I came along past this place, coming back, I heard some one hollow, and I stopped my car and went back to see what was the matter, or who it was. She was lying on her side about four or five steps from the tracks, about halfway sitting up. I asked her what was the matter, and she said she had sprained her ankle. I asked her how she came to sprain it, and she said she stepped in a hole or siding place," etc.

When the testimony of the plaintiff and the motorman are compared it will be seen that there is no conflict between them on the precise question raised by the first assignment of error. The motorman testified:

"When I opened the door the plaintiff got up, walked to the door, took her bundles, and stepped out in the usual manner."

This evidence we think was sufficient to take the case to the jury on the question of the plaintiff's diligence in alighting.

The foregoing excerpts from the evidence conclusively show that there was a sharp conflict in the evidence as to the manner of the plaintiff's injury.

upon the province of the trial court and the jury, enter that field. See Quapaw Mining Co. v. Cogburn, 78 Okl. 227, 190 Pac. 416.

[3-5] We have examined the instruction complained of, and believe that it fairly states the law applicable to the issues joined by the pleadings and the evidence. Moreover, there being a sharp conflict in the evidence, and the jury finding in favor of the plaintiff upon sufficient evidence, we are not willing to say, after an examination of the entire record, that giving the instruction complained of probably resulted in a miscarriage of justice.

Section 6005, R. L. 1910, provides:

"No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error com- . plained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."

For the reasons stated, the judgment of the court below is affirmed.

All the Justices concur, except RAMSEY,

[1] It is well settled in this jurisdiction | J.. not participating.

(79 Okl. 267)

(193 P.)

SINGER v. CITIZENS' BANK OF
HEADRICK. (No. 9737.)

plaintiff tends to establish facts, which may be briefly summarized as follows:

On the 6th day of July, 1916, one Byrum,

(Supreme Court of Oklahoma. Oct. 12, 1920.) who was engaged in the business of buying

(Syllabus by the Court.)

1. Trial 156(3)-Demurrer to evidence admits facts which evidence tends to prove.

In passing upon a demurrer to the evidence the court does not weigh the evidence. The demurrer admits every fact which the evidence in the slightest degree tends to prove and all inferences and conclusions that may be reasonably and logically drawn from the same; and, where there is any conflict in the plaintiff's evidence that would make any part of it unfavorable to plaintiff or sustains the defense, the court, in passing upon such demurrer, should

consider such evidence withdrawn.

and selling cattle, made, executed, and delivered to the plaintiff his check drawn on the defendant bank in payment for the purchase price of 25 head of cattle. On the same date the plaintiff called up an officer of the bank by telephone, and told him that he had sold Byrum 25 head of cattle for $830, and that he had received Byrum's check in payment for the same, but that he would not turn over the cattle to Byrum unless he was assured that the check would be paid when presented for that purpose; that in this telephone conversation the officer of the bank told the plaintiff that Byrum was a customer of the bank; that the check was good, and would be paid upon presentation; and that it was perfectly safe to deliver the cattle to Byrum. On the following day the plaintiff, acting from which an inference favorable to the plain-made by the officer of the bank, delivered upon the statements and representations tiff may be reasonably, although not necessarily, drawn, the court will not invade the province the cattle to Byrum, who immediately sold of the jury by withdrawing from it the right the same to Baker & Taylor, receiving payto pass on the fact to be deduced from such ment therefor by check, which on the 8th inference. day of July, 1916, was deposited to the account of Byrum in the defendant bank. The plaintiff deposited the Byrum check received by him in his local bank; that said check, after passing through the ordinary

2. Trial 142-Demurrer to plaintiff's evidence not sustained, where there are inferences favorable to plaintiff.

Where, after disregarding all evidence tending to sustain the defense, there is any evidence

3. Banks and banking 143(6)—Sustaining of demurrer to plaintiff's evidence held errone

ous.

Record examined and held, that the trial court erred in sustaining the demurrer to plain-routine as a cash item, was in due course tiff's evidence.

presented to the defendant bank for payment on the 19th day of July, 1916, and payment

check was protested and returned to the local

Appeal from District Court, Jackson Coun- refused for want of funds, whereupon said ty; Frank Mathews, Judge. Action by A. R. Singer against the Citibank, where it was taken up by the plainzens' Bank of Headrick. Demurrer to plaintiff's evidence sustained, and judgment of costs in favor of defendant, and plaintiff appeals. Reversed, and cause remanded, with directions.

tiff, who paid the protest charges, amounting to $1.35. It further appears that Byrum had been a customer of the bank for some time, and that it was his practice to buy cattle in small lots from farmers and others, giving his check in payment thereof as. Geo. L. Zink, of Hobart, for plaintiff in in the case at bar, and immediately sell the

error.

same and deposit the proceeds in the deJohn D. Rogers, of Topeka, Kan., for de- fendant bank; that up to the time of this fendant in error.

transaction Byrum's checks had been paid upon presentation. It further appeared that at the time of the conversation between the plaintiff and the officer of the bank Byrum's account was overdrawn something over $200, and that thereafter his indebtedness grew to something like $1,000, and that after By

KANE, J. This was an action for the recovery of money, commenced by the plaintiff in error, plaintiff below, against the defendant in error, defendant below. Hereafter, for convenience, the parties will be designated "plaintiff" and "defendant," respec- rum made the last deposit herein mentioned tively, as they appeared in the trial court.

the bank applied the same toward paying and discharging the indebtedness of Byrum to the bank; that about this time Byrum became wholly insolvent, and disappeared from that part of the country, leaving consideraable indebtedness to various persons unpaid. A statement of the account of W. Byrum at The direct evidence introduced by the the Citizens' Bank of Headrick, Okl., was

After the plaintiff had introduced his evidence and rested, the trial court sustained a demurrer thereto, and rendered judgment for costs in favor of the defendant, to reverse which this proceeding in error was commenced.

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

he at once resells, delivering the proceeds to the bank, the holder of such checks can maintain an action for their amount against the bank, notwithstanding he did not know of the said at the time the deposit was made, about agreement, and notwithstanding nothing was the agreement or the application of the funds."

made up from the individual ledger, and by, tomer issues checks in payment for stock which agreement read into the record. This statement shows that during the month of July, 1916, Byrum had never had to his credit in the bank a sum to exceed $11.21 at any time up to July 6, 1916; that on July 6, 1916, his account was overdrawn to the extent of $202.23; that at no time was the balance to his credit in said bank sufficient to have Counsel seem to concede that there was paid the $870 check given by Byrum to the no direct evidence that there was a contract plaintiff; that on July 8, 1916, the proceeds between Byrum and the bank such as was · of the Baker & Taylor check, $957.25, was found to exist in the Kansas case, supra, credited to Byrum's account, which, after but they contend that the existence of such discharging his overdraft, left a balance to a contract could be fairly inferred from a his credit of $658.52, The daybook or blot- consideration of all the evidence. On the ter disclosed the following bank items. charg- other hand, counsel for the defendant say: ed to the account of Byrum, in addition to "Plaintiff urges that such inference might be the $202.23 overdraft taken out of the Bak-drawn from the evidence submitted herein; but er & Taylor check; No. 6204, W. Byrum, we do not understand the rule of law to be $12.25; No. 6266, W. Byrum, $220.00; and that a case can be established by inferences, No. 6383, W. Byrum, $20. The bills receiva- but the proof must be clear and convincing." ble record showed these items under such bank numbers to be as follows: No. 6204, note of W. Byrum to bank, dated March 25, 1916, payable November 1, 1916; No. 6266, note of W. Byrum to bank dated April

27, 1916, payable on demand; No. 6383, note of W. H. Jones, dated July 6, 1916, due September 5, 1915, indorsed by Byrum.

It is conceded by the parties that this is not an action upon the check and that the question of the oral acceptance of the check within the meaning of the word "acceptance," under the Negotiable Instrument Act, is not within the issues of the case.

Counsel for plaintiff contends that the evidence is sufficient to support the plaintiff's recovery from the defendant bank upon two theories, which he states as follows:

"(1) The first is, under the theory of an arrangement with the bank by a stock buyer, who bought live stock of the plaintiff, giving his check on the bank, selling the stock and de

positing the proceeds to meet the check.

"(2) If a bank officer in the apparent scope of his duty makes false and fraudulent assertions in reliance upon which a person acts to his injury, the bank is responsible therefor under the rules of equity, public policy, and sound morals."

On the first proposition counsel for plaintiff contends that the evidence was sufficient to bring his case within the rule announced in Ballard v. Home National Bank of Arkansas City, 91 Kan. 91, 136 Pac. 935, L. R. A. 1916C, 161, and Wood v. Same, 91 Kan. 91, 136 Pac. 935, L..R. A. 1916C, 161, wherein it was held that

"Where a national bank through its president agrees with a customer, who is indebted to it, that if he purchases live stock, and in payment therefor gives checks on the bank, the checks will be paid, provided that by the time they are presented the drawer shall have resold the stock and deposited the proceeds with the bank,

[1, 2] Ordinarily in a civil action tried upon the merits the plaintiff must establish his case by a preponderance of the evidence tions of fact by considering all the facts and and the court or jury must determine ques

where the evidence is weighed by the court circumstances of the case. This is the rule or jury. But in passing upon a demurrer to the evidence the court does not weigh the evidence. The demurrer admits every fact which the evidence in the slightest degree tends to prove and all inferences and conclusions that may be reasonably and logically drawn from the same, and where there is any conflict in the plaintiff's evidence that would make any part of it unfavorable to plaintiff or sustains the defense the court ín passing upon such demurrer, should consider such evidence withdrawn. In other words, when, after disregarding all evidence tending to sustain the defense, there is any

evidence from which an inference favorable to the plaintiff may be reasonably, although not necessarily, drawn, the court will not invade the province of the jury by withdrawing from it the right to pass on the fact to be deduced from such inference. Wm. Cameron & Co. v. Henderson, 40 Okl. 648, 140 Pac. 404; St. L. & S. F. Ry. Co. v. Snowden, 48 Okl. 115, 149 Pac. 1083; Sartin v. Walker et al., 60 Okl. 258, 159 Pac. 1096; Ziska v. Ziska, 20 Okl. 634, 95 Pac. 254, 23 L. R. A. (N. S.) 1; Miller v. Marriott, 48 Okl. 179,

149 Pac. 1164.

[3] Applying these rules to the case at bar, we think it may be reasonably inferred from the evidence that an agreement existed between Byrum and the bank something similar to the agreement shown in the Kansas case. Byrum was engaged in buying cattle from farmers and others, immediately selling the cattle again, and depositing the proceeds derived therefrom in the bank, presumedly to