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COURTS.-Continued.
6. Same. The courts of Oklahoma will not aid in the enforcement of

foreign contracts contrary to the penal laws and public policy
of Oklahoma, regardless of the validity of such contracts in
the state where they were made. Idem ..

394

('ROPS--See "Railroads."

('URTESY—See “Irdians," 9.

CUSTODIA LEGIS–See "Bankruptcy"; "Courts."
CUSTOMS-See "Divorce."

428

1

428

DAMAGES-See "Appeal and Error," 17; “Assignments"; "Carriers" ;

* Conspiracy”; Contracts”; “ Corporations"; * Counties";
“Death"; "Evidence,” 13, 14; “Fraud"; "Highways"; "Interest" ;
"Limitation of Actions"; "Malicious Prosecution"; "Master and
Servart”; “Negligence"; "Pleading," 1; “Railroads"; "Sales" :

"Trial," 5, 8, 9.
1. Injury to Servant-Causal Connection-Burden of Proof.

In an
action for recovery of damages for negligence, if it be shown
by the evidence there was negligence, there can be no recovery
unless the evidence, by a preponderance, also shows causal con-
nection between the negligence proved and the damages sustained.

Sallisaw Cotton Oil Co. v. Holland....
2. Same—Allegation and Proof-Direction of Verdict. In an action

for damages for negligence, if the evidence fails to show causal
connection between the negligence averred and the injuries suf-
ferred, the court, upon proper request, should direct a verdict

for the defendant. Idem. ....
3. Personal Injury-Assessment of Damages-Instructions.

sonal injury case, instruction leaving jury to judge what are
proper elements of damage is erroneous. Ft. Smith & W. R. Co.

v. Green....
4. Measure of Damages-Destruction of Property. Measure of dam-

ages for destruction of property is reasonable market value at
the time it was destroyed, but, if it has no market value, then its
value in view of use to which it was to be put. Wichita Falls

& N. W. Ry. Co. v. Gant....
5. Exemplary Damages—When Recoverable. Exemplary damages can

only be recovered where defendant has been actuated by malice
or fraud, or has been guilty of oppression or such gross negli-

yence as amounts to malice. Chicago, R. I. & P. Ry. Co. y. Wells.
LEATH-See Abatement and Revival"; "Limitation of Actions."
1. Action for Wrongful Death-Negligence—Proximate Cause. To

sustain verdict for causing death, plaintiff must not only prove
negligence, but also that negligence was proximate cause of
cleath. Clinton & 0. W. Ry. Co. v. Dunlap....

In per

585

727

599

755

DEATH.—Continued.
2. Same-Evidence. Generally it is impossible to prove that negli-

gence was proximate cause of death by direct evidence, and it
is sufficient to show circumstances and surroundings if inference
therefrom is reasonable one. Idem. .

755

DECEIT-See “Fraud."
DEEDS–See “Cancellation of Instruments"; "Champerty and Main-

tenance”; “Estoppel"; "Homestead"; "Indians"; "Vendor and

Purchaser."
DEFAULT JUDGMENT-See "Justices of the Peace.” 6-8.

DELAY-See “Contracts."
DEMAND-See "Usury.".

DEMURRER-See “Pleading."
DEPARTURE-See “Pleading," 2.
DEPOSITARIES:
1. Money Deposited-Escrow Agreement — Diversion from Purpose.

Money deposited in escrow for a certain fixed and definite purpose
cannot be applied to the use or benefit of either party to the
escrow agreement until the objects for which same are deposited
have been fully discharged, unless by the consent of the parties.

Comanche State Bank v. Watkins....
2. Same-Wrongful Diversion-Sufficiency of Evidence. Evidence held

to show conclusively that the purpose for which money was de-
posited had not been discharged, and that it fails to show any
right in the holder of the same to apply the same to its own use
and benefit. Idem.

348

348

DEPOSITIONS:
Notice to Take-Sufficiency. A notice to take depositions need not set

out the names of the witnesses. Dietrich v. Dr. Koch Vegetable
Tea Co...

636

DEPOSITS-See "Banks and Banking."
DEPOSITS FOR COSTS-See "Courts"; "Justices of the Peace," 9.

DESCENT AND DISTRIBUTION-See “Indians."
1. Inheritance by Mother-Construction of Statute. Sess. Laws 1909,

chap. 35, sec. 1, subd. 2, held to put the mother on equality with
the father in inheriting from a deceased son, though, by inad.
vertence following the words "If there be no father" the words

“or mother” were omitted. Squint Eye v. Crooked Arm....
2. Same. In view of Sess. Laws 1909, chap. 35, sec. 1, subd. 2, re-

lating to succession, held that there was no field for the operation
of subd. 4, relative to inheritance by decedent's mother, but that

69
69

DESCENT AND DISTRIBUTION.-Continued.

such provision, having been taken from an existing statute and

inadvertently re-enacted, should be deemed surplusage. Idem..
3. Same. Where decedent leaves no wife, issue nor father, but leaves a

mother and half brothers and sisters and children of a deceased
half-sister, the mother takes the entire estate to the exclusion
of the others. Idem ....

69

DESCRIPTION-See “Chattel Mortgages."

DETECTIVES-See "Counties."

DIRECTION OF VERDICT-See “Bills and Notes," 5; “Brokers" ;

"Damages"; "Trial,' 1, 2.

DISCOUNT-See "Bills and Notes," 3. 4.

DISCRETIONARY RULINGS–See "Appeal and Error,” 31-38; "New

Trial"; “Pleading,” 5.
DISMISSAL-See "Abatement and Revival"; "Appeal and Error," 7,

16, 18, 20; “Courts"; "Justices of the Peace," 9; "Limitation
of Actions."

DIVORCE-See "Marriage."
Marriage Indian Customs. Marriages, contracted between tribal In-

dians according to the usages and customs of their tribe, at a
time when the tribal government and relations are existing, will
be upheld by the courts, in the absence of a federal law render-
ing invalid the laws and customs of the tribe; and a dissolution
of the marriage contract, according to such tribal laws, usages,
and customs will be likewise upheld by the courts. James v.
Adams.

450

DORMANT JUDGMENT-See "Judgment," 8-10.

DURESS--See “Cancellation of Instruments."

EJECTMENT:
Title—Recovery by Plaintiff. Plaintiff in ejectment must recover on

the strength of his own title. Aldridge v. Whitten...
ELECTIONS–See "Schools and School Districts.”

694

ELECTRICITY—See “Master and Servant," 7.

of

Actions";

IMPLOYERS' LIABILITY ACT--See “Limitation

“Master and Servant," 8, 9.

EMPLOYMENT—See "Master and Servant."

EQUITY—See "Appeal and Ferror," 31, 32; "Cancellation of Instru-

ments”; “Estoppel" ; "Fraudulent Conveyances" ; "Specific Per-
formance."

188

Was

750

ESCROWS-See "Depositaries."
ESTATES-See "Descent and Distribution”; “Mechanics' Liens."
ESTOPPEL-See “Appeal and Error," 43; "Corporations"; "Home-

stead" ; "Insurance," 2.
1. "Waiver" Distinguished. “Estoppel" is the inhibition to assert a

right which the law places on one as a consequence of his con-
duct which has resulted in injury or detriment to another, while
"waiver" is a voluntary surrender of a right. Northwestern

Nat. Life Ins, Co. v. Ward..
2. Necessity of Plea-Action for Freight Charges Defense-Contracts.

In action for freight, contract of consignor and consignee as to
payment of freight cannot be pleaded as defense, in absence of
plea raising estoppel, to which such contract germane.

Indiana Harbor Belt R. Co. v. Britton...
3. Estoppel in Pais-Silence. Only where the conduct of one who kept

silent when he should have spoken has misled another or preju-
dicially affected another's conduct may the latter successfully
plead an estoppel in pais against the former, Madill State Bank

v. Weaver.
4. Same. In order for the silence of a party to constitute an estoppel

against him, it must have occurred under such circumstances as
to have made it his imperative duty to speak, and the party in
whose favor the estoppel is invoked must have been misled into
doing that which he would not have done but for such silence.

Heckman v. Davis.
5. Same. Where B., the holder of the record title to land, proposes to

sell to C., who agrees to buy if the title is good ; and A., who is
B.'s record grantor, is advised of the deal between B. and C., and
remains silent as to his ownership; and C. afterwards buys the
land of B., taking his conveyance therefor-held, that A. is
estopped by his silence when he should have spoken, and cannot
show, to defeat ('i's title, that his deed to B. was forgery. Idem

183

483

483

EVIDENCE-See “Accord and Satisfaction" ; "Acknowledgment";

"Appeal and Error,"' 14-16, 21-33, 36, 42-44; “Attachment":
“Brokers"; "Cancellation of Instruments"; "Carriers"; "Con-
spiracy"; "Corporations" ; "Damages" ; "Death" ; "Depositaries" ;
"Depositions”; “Exchange of Property"; "Fraud"; "Fraudulent
('onveyances"; "Gaming"; "Indians,” 5, 12-14; "Malicious Prose-
(ution"; "Master and Servant”; “Mechanics' Liens”; “Negli-
gence"; "New Trial" ; "Railroads": "Sales" ; "Schools and School

Districts"; "Trial," 7, 11; "['se and Occupation"; "Wills.'
1. Judicial Notice-Development of the Telephone.. Improvement in

communication which telephone has made, its nature, operation
and ordinary uses, are facts of general scientific knowledge of
which courts will take judicial notice as part of public contem-
porary history. Heckman v. Davis..

483

201

483

483

483

636

636

EVIDENCE.Continued.
2. Burden of Proof-Determination from Pleadings. Whether the bur-

den of proof rests on plaintiff or on defendant is to be determined
from the pleadings. Congdon v. McAlester Carriage & Wagon

Factory.
3. Telephone Conservations. Evidence of conversation over telephone

is not inadmissible because it is uncertain, unreliable, and easily

manufactured. Heckman v. Davis.....
4. Same. That a party testifying to telephone conversation could not

identify voice of person speaking, does not render conversation

incompetent. Idem..
5. Same. Telephone conversation may be received in evidence, though

witness is not identified positively as the person speaking, the

uncertainty going only to weight of evidence. Idem. ...
6. Declaration of Principal-Admissibility Against Surety-Res Gestae.

Declarations and conduct of the principal become part of the res
gestae and admissible against a surety, where they were made
during the transaction of the business for which the surety is

bound, but not otherwise. Dietrich v. Dr. Koch Vegetable Tea Co.
7. Same. Ordinarily, no act, conduct, declaration or statement of the

principal done or made prior to execution of the obligation can

bind the obligors on a surety bond. Idem. ..
8. Offer to ('ompromise. Evidence of a proposed compromise and set-

tlement of a claim, which was not accepted, cannot be legally
admitted in evidence in a trial in which the claim offered to be
compromised is the subject matter of the suit. Chicago. R. I.

& P. Ry. Co. v. Forsythe & Templar..
9. Parol Evidence-Incomplete Written Contract. Where an oral con-

tract is partially reduced to writing, and the writing evidencing
it is not a complete and final statement of the entire transaction,
parol evidence not inconsistent with such written contract is ad-

missible to show the full agreement. Smith v. Bond...
10. Parol_Mistake in Signature. Parol evidence is admissible to show

that a signature to a bond was misplaced by mistake. Craig v.

Spencer.
11. Parol-Construction of Note. In an action on a note, made payable

to a trustee, where the beneficiary is specifically named therein.
and there is no doubt or ambiguity as to the identity of such
beneficiary, it is error to admit parol evidence to vary the terms
of such instrument to show that another was intended as such

beneficiary. Roberts v. Morgan....
12. Parol-Ambiguous Instrument. As a general rule parol evidence

is not admissible to vary the terms of a written instrument, but
the general rule is subject to the exception that where anything
appears upon the face of the instrument which suggests a doubt
or ambiguity as to the party bound, or the character in which
any of the persons who signed the instrument acted, parol teg-

26

112

259

513

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