negligence of its servants and employés. It follows that there was no error in giving this instruction to the jury.

The next error complained of is that the court erred in its charge to the jury in reference to the measure of damages recoverable in this case. Instruction &, which was given at the request of the plaintiff, is as follows: "If you find from the evidence, under the rules laid down in these instructions, that the plaintiff is entitled to recover damages from the defendant, then you are instructed that, in estimating the damages which you will award the plaintiff, you are entitled to take into consideration the extent of plaintiff's injuries, if any were suffered by him, the physical and mental pain and suffering which he has endured, and which were the natural and proximate result of such injuries, and also that pain and suffering which is reasonably certain that he will suffer in the future as the natural and proximate result of such injuries. You may also consider his loss of capacity, physical and mental, to attend to his usual business or perform the kind of labor for which he is fitted. You may also consider his loss of time from his business or occupation and that which is reasonably certain to result in the future as the natural, direct, and proximate result of his injuries. You may also take into consideration the necessary medical and other expenses incurred by him in endeavoring to effect a cure or alleviate his condition. To recover for such expenses the plaintiff must show either that he had paid for such services or become liable to pay for the same. He may also recover for such future expenses for medical and other expenses as it is reasonably certain that he will be compelled to incur for such treatment and care as are regarded necessary and imperative in his behalf as the direct and proximate result of the injuries from which he is suffering." It is earnestly contended by counsel for plaintiff in error that this instruction is erroneous, and ground for reversal of the cause, for the reason that, in stating the elements of damage, the court assumed the existence. of injuries which were not warranted by the evidence. The general doctrine is well settled that a charge which, in effect, assumes the existence and proof of disputed facts, or which restricts or interferes with the discretion of the jury is erroneous. and, if it is of such a character as to mislead the jury, it is ground for reversal of the cause. But, after a careful analysis of the instruction, we do not think that it is subject to these objections. On the contrary, we think when the instruction is carefully considered, it fairly and correctly states the various elements of damages recoverable, if the jury find the issues in favor of the plaintiff. It will be observed that the instruction stated at the very outset, "if you find from the evidence under the rules laid down in these instructions that the plaintiff is entitled to

recover damages from the defendant, then you are instructed that, in estimating the damages which you will award the plaintiff, you are entitled to take into consideration the extent of plaintiff's injuries, if any were suffered by him." (The italics are ours.) Then follows a statement of the different elements of damages that are recoverable in an action of this kind. And it seems to us that it was not necessary to repeat the phrases, "if you find from the evidence," and, "if any were suffered by him,' in stating the subse-quent elements of damages referred to in the same instruction; and that these various elements necessarily related back to, and were qualified by, the first part of the instruction, which stated under what circumstances the plaintiff could recover.

Nor do we think instruction 7, in reference to the measure of damages recoverable for physical and mental pain and suffering, is subject to serious objection or criticism. While some of the language used in the instruction was perhaps not as felicitous as it should have been, yet we are of the opinion that the instruction did not confuse or mislead the jury, and that this instruction, when considered with the other instructions in reference to the measure of damages, fairly stated the law, and that the charge, as a whole, is in accord with the adjudicated cases. In Railroad Company v. Barron, 72 U. S. 105, 18 L. Ed. 591, Mr. Justice Nelson, speaking for the court, said: "The damages in these cases, whether the suit is in the name of the injured party, or, in case of his death, under the statute, by the legal representative, must depend very much on the good sense and sound judgment of the jury upon all the facts and circumstances of the particular case. If the suit is brought by the party, there can be no fixed measure of compensation for the pain and anguish of body and mind, nor for the loss of time and care in business, or the permanent injury to health and body." In the case of the "City of Panama," 101 U. S. 453, 25 L. Ed. 1061, this doctrine was reiterated and approved by the court. In Vicksburg, etc., Railroad Co. v. Putman, 118 U. S. 554, 7 Sup. Ct. 1, 30 L. Ed. 257, Mr. Justice Gray, speaking for the court says: "In an action for a personal injury, the plaintiff is entitled to recover compensation, so far as it is susceptible of an estimate in money, for the loss and damage caused to him by the defendant's negligence, including, not only expenses incurred for medical attendance, and a reasonable sum for his pain and suffering, but also a fair recompense for the loss of what he could otherwise have earned in his trade or profession, and has been deprived of the capacity of earning, by the wrongful act of the defendant. Wade v. Leroy, 20 How. 34, 15 L. Ed. 813; Nebraska City v. Campbell, 2 Black (U. S.) 590, 17 L. Ed. 271; Ballou v. Farnum, 11 Allen (Mass.) 73; New Jersey Express Co. v. Nichols, 32 N. J. Law, 166, 33

N. J. Law, 434, 97 Am. Dec. 722; Phillips v. London & Southwestern Railway, 4 Q. B. D. 406, 5 Q. B. D. 78, 5 C. P. D. 280; S. C., 49 Law Journal (Q. B.) 233." In Davidson v. Southern Pac. Co. (C. C.) 44 Fed. 481, the following charge was approved: "In reference to the question of damages, you are instructed that that law furnishes no fixed or defined standard for the guidance of the jury in awarding compensation in cases of this kind for the injuries sustained by the injured party, and the amount of damages to be awarded must be left, in view of the testimony, to the sense of right and justice of the jury. The plaintiff, if your finding be in his favor, should be fairly and justly compensated for the injuries he has sustained. In making your estimate of such damages, you are authorized to consider: (1) Such special expenses as may be shown by the testimony to have been incurred by the plaintiff by reason of his injuries during the period of his disability, while confined; (2) the value of the time lost by him during the period in which he was disabled, from his injuries, to work and labor, taking into consideration the nature of his business, and the value of his services in conducting the same; (3) fair compensation for the mental and physical suffering caused by the injury; and (4) the probable effect of the injury in future upon his health, and the use of his injured hand, and his ability to labor and attend to his affairs, and, generally, any reduction of his power and capacity to labor and earn money, and pursue the course of life which he might otherwise have done." Measured by the rule laid down in these authorities, we are of the opinion that there was no material error in the charge to the jury which would justify a reversal of the

cause.

It is next contended that the court erred in admitting the testimony of the plaintiff in regard to the damages that were recoverable for loss of time. It seems that after the plaintiff had testified that his occupation was that of a farmer, a stock raiser, and a well driller, he was permitted to state what his earning capacity was reasonably worth per month prior to the time he sustained the injuries which were the subject of this controversy. To this ruling the defendant excepted. We are of the opinion that the evidence was admissible; and hence that there was no error in this ruling. In Murdock v. New York & B. Despatch Ex. Co. (Mass.) 46 N. E. 57, the Supreme Judicial Court of Massachusetts held that, "in an action for personal injuries which prevented plaintiff from working, his loss of earnings is a proper element of damages, and evidence of his average monthly earnings is admissible." In Braithwaite v. Hall, 168 Mass. 39, 46 N. E.

398, this rule is clearly stated by Mr. Justice Holmes, then Associate Justice of the Supreme Judicial Court of Massachusetts, and now one of the Justices of the Supreme Court of the United States, as follows: "The ruling as to damages was correct. It is true that, when a man is allowed to prove his average earnings or the wages actually lost by him, they are proved as a measure of the value of the time and power to labor of which he has been deprived, not as themselves recoverable eo nomine. But the distinction does not appear to be material in this case. There is nothing to show that the wages were not reasonable, and a proper measure of the value of the plaintiff's time. It is argued for the defendant that the true measure is the market value of the averages of a man of the plaintiff's average capacity, working in the same employment. But the cases cited do not sustain the position, and there are many decisions adopting the test of the individual's experience. If any distinctions in the value of men's time are admitted, there is no reason why the whole actual difference should not be recognized." In Wade v. Leroy, 61 U. S. 34, 15 L. Ed. 813, "in an action against the owners of a ferryboat, for personal injuries sustained by the negligence of its officers, it was held that the plaintiff might show that he was engaged in a particular business, and had been incapacitated from attending to it as exhibiting the extent of the injury, and that it had occasioned expense, suffering and loss of time which had value to him, although the nature of his occupation was not set forth in the declaration." And in Nebraska City v. Campbell, 67 U. S. 590, 17 L. Ed. 271, it was held that, in an action for damages sustained by the negligence of a municipal corporation, evidence showing the business in which the plaintiff was engaged, its extent, and the consequent loss arising to him from his inability to prosecute it, is relevant and pertinent, as enabling the jury to fix, with some certainty, the direct and necessary damages resulting from his injuries. So, in the case under consideration, we think it was proper for the plaintiff to state that his time, prior to the accident, was reasonably worth from $100 to $150 a month. And, in the light of all the evidence, we are of the opinion that the amount allowed for loss of time and diminution of earning capacity was not excessive.

Upon a careful examination and consideration of the entire record, we are of the opinion that no error was committed which would require a reversal of this cause, and, believing that the verdict of the jury is fully sustained by the evidence, and that the judgment of the court is in consonance with right and justice, the cause is hereby affirmed. All the Justices concurring.

(17 Okl. 82)

PERKINS v. TERRITORY. (Supreme Court of Oklahoma. Sept. 4, 1906.) CRIMINAL CASE--FAILURE OF DEFENDANT TO TESTIFY COMMENT THEREON-REVERSIBLE ERROR.

Where a defendant is on trial charged with the commission of a crime, and fails to testify in his own behalf, and the prosecuting oflicer comments upon such failure to the jury, such comments constitute reversible error.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1672.]

(Syllabus by the Court.)

territory, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him, nor be mentioned on the trial: if commented upon by counsel it shall be ground for a new trial." This statute is plain and unambiguous, and, where its terms are violated, the court has no discretion, but must grant a new trial. The language used was clearly a comment upon the fact that the defendant had not taken the stand and explained his possession of the cattle. It is

BURWELL, J. The defendant was indicted jointly with his wife for the crime of stealing domestic animals. A severance was had, and the defendant placed on trial first. On this trial his wife was the only witness in his behalf. The defendant did not testify. It was contended by the prosecution that the cattle alleged to have been stolen were found in the defendant's possession. The county attorney, in his closing argument to the jury, used the following language: "Why don't he explain? Why don't they attempt to explain away these circumstançes? Why don't they show you how it was he came into possession of that property, or that he was in

some other country? That it was impossible

for him to have done it? There isn't a word of evidence in explanation. You have just simply the testimony of the state's witnesses. and it is absolutely uncontradicted, in every particular. It shows that this property was stolen, and under these circumstances, this man watching the cattle from where he was plowing, as he told you had been his custom of watching them. keeping them backHere the court interrupted, using these words: "Mr. Loufbourrow, of course, you will not refer to the fact that the defendant did not testify." To which Mr. Loufbourrow replied: "No! No! I didn't desire it to be considered in that way. It is not likely that a bunch of milk cows would stray away a distance of 40 miles. Another thing, the identity of these cattle is not disputed. They were seen 10 miles from where they were taken."

It is insisted that the language on the part of the prosecuting officer was in violation of the provisions of the statutes which pro hibit comment upon the failure of a defendant to testify in his own behalf. Section 5206 of the Statutes of Oklahoma of 1893, provides: "In the trial of all indictments, in

formations, complaints and other proceedings against persons charged with the commission of a crime, offenses and misdemeanors before any court or committing magistrate in this

cumstances, if they are clearly calculated to direct the attention of the jury to the fact that a defendant has not testified in his own behalf, that he might have done so, and that by such failure some inference might be indulged against him. The language used could scarcely fail to have this effect, and the statement of counsel was not in any way corrected by the inquiry of the court in which it said: "Of course, you will not refer to the fact that the defendant did not testify." Where a defendant fails to offer any evidence, the prosecution is not prevented from discussing the evidence against him, and to insist that such evidence is un

disputed; but a prosecuting officer under the statute must refrain from calling attention of the jury to the fact that a defendant has failed to testify in his own behalf. Wilson v. Territory. 9 Okl. 331, 60 Pac. 112.

For the reason stated. the case is hereby reversed, and a new trial granted, at the cost of the territory. All of the Justices concur

ring, except PANCOAST. J., who presided at the trial below, not sitting, and GARBER, J., absent.

(17 Okl. 410)

KEE v. EWING et al. (Supreme Court of Oklahoma. Sept. 6. 1906.) ACKNOWLEDGMENT — MORTGAGES RECORDNOTICE.

A note and mortgage executed and delivered to A.. which mortgage is acknowledged by the parties executing the same before B., a notary public, and there is nothing upon the face of the instrument which discloses any interest therein by any third person. Held, that such mortgage is entitled to record by the register of deeds, notwithstanding the fact that A. is president, and B. cashier and stockholder. of the same bank at that time; and held further that such record operates as notice.

[Ed. Note. For cases in point. see vol. 1, Cent. Dig. Acknowledgment, $$ 104-111.] (Syllabus by the Court.)

Error from District Court, Custer County; before Justice C. F. Irwin.

Action by O. B. Kee against C. J. Ewing and others. Judgment for defendants, and Reversed and replaintiff brings error.

manded.

On July 5, 1901. C. J. Ewing and Hattie Ewing, his wife, executed and delivered to

the Union Trust Company, one of the defendants in error, a real estate mortgage covering certain property in block 34 in the city of Weatherford, Custer county, O. T., which mortgage was filed for record in the office of the register of deeds of said county on the 24th day of March, 1902. On November 27, 1901, defendants Ewing and wife executed and delivered to the plaintiff, O. B. Kee, their note, secured by a mortgage upon the same premises covered by the mortgage to the Union Trust Company, and this mortgage was filed and recorded in the register of deeds office in said county on November 28, 1901. And on the same day they executed and delivered to one Sam Wells their note for $460. This note was thereafter, and before maturity, assigned to plaintiff; and, on the 10th day of March, 1902, Ewing and wife executed and delivered a deed to the premises covered by the two mortgages above mentioned, which deed was filed for record on the 8th day of April, 1902. Both of these instruments running to Kee, to wit: The mortgage recorded November 28, 1901, and the deed recorded April 8, 1902, were acknowledged before one O. H. Cafky, a notary public, who, it is admitted, was at the time the cashier of the National Exchange Bank, and a shareholder therein. The acknowledgments to both the mortgage and deed running to Kee were taken by one O. H. Cafky, a notary public, who, at the time of taking such acknowledgments, was the cashier of, and a stockholder in, said bank. Neither Kee nor the National Exchange Bank had any notice or knowledge of the mortgage to the Union Trust Company until the same was placed on record. This action was commenced by O. B. Kee, on the 26th of June, 1902, to foreclose the mortgage and deed treated as a mortgage given by Ewing and wife to him, and making the Union Trust Company a party defendant. Neither Ewing nor his wife appeared in the case, but the Union Trust Company answered, and filed a cross-petition, setting up their mortgage, and asking to have it declared a first lien on the premises. It is admitted that, at the time of executing these various mortgages, Ewing and wife were the owners of the premises described therein. The cause was tried before a referee, who, after making substantially the foregoing finding of facts, as a conclusion of law, held that the plaintiff, Kee, had a first and second lien upon the premises, by virtue of his mortgage and deed, and the defendant Union Trust Company, a third lien by virtue of its mortgage. On exceptions and objection to the referee's report, and confirmation of the same, the court below held the mortgage and deed of Kee to be improperly of record, because of the financial interest of the notary public who took the acknowledgments to the same, and therefore held the Union Trust Company entitled to the first lien, and Kee a second and third lien, on the premises involved. Plaintiff, Kee, filed his motion for a new trial, which being

by the court overruled, judgment was entered for the respective parties, as above indicated, and from such judgment the cause comes to this court by case-made.

George T. Webster and Ione Webster, for plaintiff in error. Flynn & Ames, for defendants in error.

GILLETTE, J. (after stating the facts). The only question presented by the brief of plaintiff in error is a question arising under the following assignment of error: "The court erred in finding that the mortgage of the Union Trust Company was a first lien, and that Kee had a second and third lien on said property." The facts were found by a referee, from whose finding of facts it appears that the Union Trust Company had a mortgage upon the lands involved, given June 5, 1901, and recorded March 24, 1902, executed by one Ewing and wife. On November 27, 1901, Ewing and wife executed a mortgage to the plaintiff in error, O. B. Kee, which was recorded the following day, November 28, 1901. On March 10, 1902, the plaintiff in error purchased another note of Ewing, which was secured by a deed of Ewing and wife, on the same property and recorded April 8, 1902. At the time of the execution and acknowledgment of the two last-named instruments, the plaintiff in error was president of the National Exchange Bank of Weatherford, O. T., and the notary taking the acknowledgment of Ewing and wife to each of said instruments was O. H. Cafky, who was at that time cashier of, and a stockholder in, said bank. The National Exchange Bank of Weatherford is shown by the record and findings to be interested in the mortgage and deed taken in the name of the plaintiff in error. The findings of the trial court that the mortgage of the Union Trust Company was a first lien, although recorded subsequent to the recording of the mortgage taken in the name of the plaintiff in error, was based upon the fact that such mortgage and deed was acknowledged before O. H. Cafky, an interested person.

It is argued by the plaintiff in error that, under the provisions of section 888, Wilson's Rev. & Ann. St. 1903, which provides: "Except as herein provided, no acknowledgment or recording shall be necessary to the validity of any deed, mortgage, or contract relating to real estate as between the parties thereto; but no deed, mortgage, contract, bond, lease, or other instrument relating to real estate, other than a lease for a period not exceeding one year and accompanied by actual possession, shall be valid as against third persons unless acknowledged and recorded as herein provided; except, actual notice to such third persons shall be equivalent to due acknowledgment and recording"-the laches of the Union Trust Company, in not recording its mortgage, left the record free and clear when Kee took his mortgage, and, in so doing relied