(182 P.) to the trial thereof in the court below filed all that the statute required of him in the con. its disclaimer, and on the rendition of the struction of such bath, there is no primary negfinal judgment, on November 10, 1916, judg-ligence shown. - INJURIES SHOWER BATH-MODE OF CON- ment was rendered for the O. K. Transfer & 2. MASTER AND SERVANT ~94 · PERSONAL Storage Company and M. C. Binion, as sheriff, for costs, from which judgment the defendant W. Bourke appealed by petition in error; the other named parties being made defendants in error. The assignments of error present the following questions: (1) Error of the trial court in its third conclusion of law, that the judgment in case No. 12497 of the district court of Oklahoma county, W. Bourke, plaintiff, v. A. R. Meacham et al., defendants, upon which execution issued and was levied upon automobiles, was dormant, and that plaintiff in error had no right to the machines levied upon under the writ of execution issued out of said cause. (2) Error of the trial court in its judgment against plaintiff in error for the costs of said action below and enjoining execution upon the said judgment in case No. 12497 of the district court. Brief of plaintiffs in error was regularly filed in this court September 17, 1918. Defendant in error failed to file briefs or offer any excuse for not doing so. From the brief filed by plaintiff in error, the propositions relied upon for reversal of the judgment appeared to be well taken. The volume of undisposed business in this court is such that it cannot in justice to other litigants search the records and ascertain the theory on which the judgment was rendered in cases not briefed by counsel as the rules of this court require. Olentine et al. v. Backbone et al., 166 Pac. 127; Flanagan v. Davis, 27 Okl. 423, 112 Pac. 990; Beaver v. Loan Co., 30 Okl. 585, 120 Pac. 943. The judgment of the lower court is therefore reversed, and the cause remanded for a new trial. (75 Okl. 78) ROCK ISLAND COAL MINING CO. v. In an action for injuries sustained by slipping and falling in the basin of a shower bath, alleged to be due to the negligent construction of such basin, it is necessary to show, either that such basin is obviously dangerous for use, or that it is constructed so different from the usual, common, and ordinary manner of constructing such basins as to be dangerous, and, in the absence of such proof, a judgment for | damages will be reversed. Error from District Court, Latimer County; W. H. Brown, Judge. Action by W. F. Taylor against the Rock Island Coal Mining Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded. W. H. Moore, of McAlester, C. O. Blake, of El Reno, K. W. Shartel, of Oklahoma City, and Chas. H. Hudson, of Wilburton, for plaintiff in error. H. H. Smith, of Kansas City, Mo., and I. C. Saunders, of Shawnee, for defendant in error. HARRISON, J. This suit was instituted in the district court of Latimer county, by W. F. Taylor, against the Rock Island Coal Mining Company for damages for personal injuries alleged to have been received by Taylor while taking a shower bath in the company's bathroom. Taylor was employed by the company and engaged in mining coal. The company, pursuant to section 1, c. 125, Session Laws 1913, had erected a bathhouse near the entrance of the mine, in order that the miners after coming out of the mines might bathe and change clothes before going home. On the date of the alleged injuries, the defendant in error, Taylor, in company with four or five colaborers, at the conclusion of their day's work in the mines went into the Supreme Court of Oklahoma. June 17, 1919.) bathhouse to wash and change clothes, and while engaged in bathing, and while standing in the basin and under the shower, which came from above, Taylor claims to have slipped and fallen upon his arm, breaking it and sustaining permanent injuries therefrom. For such injuries this action was brought and judgment obtained for the sum of $7,500, and the coal mining company appeals to this court upon three principal propositions, to wit: (1) That no primary negligence was shown. (2) That the verdict is excessive. Section 1, c. 125, Session Laws 1913, requires all coal mining operators, employing ten or more laborers, to erect a bathhouse, constructed with a shower bath for the use of men working in the mines, and equipped with individual lockers, proper light, heat, hot and cold water, and to maintain same in good and sanitary condition and order. Held, in an action for injuries alleged to be the result of the negligent construction of such bath, where there is no evidence that the operator has failed to do For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 P.-6 (3) That the verdict is contrary to law. In determining whether there was primary negligence, we must look to the statutes to ascertain what duty was required of the nothing about the safety of such a bathroom, coal company toward its employés. but simply provides that it shall be "a suit Section 1, c. 125, Session Laws 1913, pro- able building of sufficient size to accommovides: date all the men employed in said mine, which shall be convenient to the principal entrance of such mine, equipped with individual lockers, proper light, heat, hot and cold water, and shower baths, and to maintain the same in good and sanitary condition and order." "It shall be the duty of every person, corporation or company, and of his or its agents, officers, representatives or other persons or person in charge, owning and operating or operating as lessee any coal mine within the state of Oklahoma, wherein ten or more miners are employed in digging coal, to provide within six months Hence when the company had erected a after the approval of this act, a suitable build-house of sufficient size, and provided it with ing of sufficient size to accommodate all the men employed in said mine, which shall be convenient to the principal entrance of such mine, equipped with individual lockers, proper light, heat, hot and cold water, and shower baths, and to maintain the same in good and sanitary condition and order, for the use of persons employed in such mine as a place for washing and bathing themselves, and changing clothing when going to and returning from the mine. The baths and lockers for the negroes shall be separate from the white race, but may be in the same building. The said employés shall furnish their own towels, soap and lock for lockers and shall exercise control over and be responsible for all property by them left therein." In determining the question of liability under the above statute, and the facts and circumstances in this particular case, two elements enter into the consideration which do not enter in ordinary actions for negligence: First. That the duty of the master is prescribed by statute. Second. That the employés in availing themselves of the benefit of this bathroom were not acting under the orders nor directions of the master, but were acting wholly upon their own accord and upon their own judgment as it pleased them to do. [1] It does not appear from the records just what the size of the bathhouse was, that is the interior of the entire bathroom; but it appears that the entire floor of the bathroom was laid with concrete, and that in the center of the bathroom there was a basin about six feet square, gradually sloping toward the center, and being about six inches lower in the center than at the outer edge. In the center of this basin there was a drainpipe for the purpose of draining the basin, the contrivance for letting on the shower being immediately over the center of the basin. This is substantially the description given by the witnesses for the plaintiff. It must be observed that the statutes say proper lights, heat, lockers, and shower bath, as required by statute, and had maintained same in good and sanitary condition and order it had discharged its duty under the law, provided such basin was so constructed as to be reasonably safe to an ordinarily prudent person, and free from the appearances of danger to an ordinarily prudent person using such basin, and provided, further, that its construction was not materially different from the ordinary manner of constructing such basins, and not more dangerous than basins constructed in the usual manner. [2] This being true, then the question of actionable negligence must rest upon the margin of difference between a basin of just exactly enough slope to make it sanitary, by draining off the water and soap, and the slope which it had, and the question as to whether it was more dangerous than the usual character of such basin, if constructed different from the usual method. There was no testimony that this basin was essentially different in construction to the ordinary manner of constructing such basins, nor that it was more dangerous than the ordinary basin, if different from the ordinary character of basin, nor was there any testimony that it was any steeper than was required by statute to make it sanitary. These being the essential questions upon which primary negligence in this action must be founded, and there being no testimony upon such questions, nor any testimony that the defendants had failed to comply with the statutes in the construction of such basin, we are compelled to hold that no primary negligence is shown. Judgment therefore is reversed, and cause remanded. OWEN, C. J., and KANE and JOHNSON, JJ., concur. RAINEY, J., concurs in the conclusion. (75 Okl. 75) (182 P.) MURPHY v. ESTLE et al. (No. 8605.) (Supreme Court of Oklahoma. June 17, 1919.) (Syllabus by the Court.) 1. BILLS AND NOTES 341 BONA FIDE HOLDER-KNOWLEDGE OF STOCKHOLDER. Where the trial court gives the following instruction to the jury: "You are further instructed that if you should find from the evidence that the plaintiff Murphy was a stockholder in the Independent Harvester Company at the time he purchased the original note, of which the one now in suit was a renewal, that then he, as a stockholder in said company, is chargeable with notice of the condition of the said company and of the manner in which its business was conducted, including the sale of the stock in question to the defendants"-it is held error for the reason that the stockholder is not chargeable with such notice. Harvester Company and assigned by the latter to the plaintiff before maturity. The trial resulted in judgment in favor of the defendants. The assignments of error are varied and numerous. We have neither the time, nor do we deem it necessary, to pass upon each and every assignment. The instructions given by the trial court to the jury were voluminous, and it would have been extremely doubtful if a Marshall or a Story could have given instructions of the number and length of those given by the trial court without committing some error either grave or technical. [3] In the second instruction, the jury is instructed as to the burden of proof. We have carefully examined this instruction and conclude that the plaintiff is not prejudiced thereby. In the third instruction, the court defines the preponderance of evidence by stating that by the term "preponderance of 2. COMMERCIAL PAPER-QUALIFIED INDORSE- evidence" is meant that kind and quality of MENT-FORM-EFFECT. evidence which is more satisfactory, satA qualified indorsement constitutes the in- isfying, and convincing to the minds of the dorser a mere assignor of the title to the in- jurors. Had all the instructions given by strument. It may be made by adding to the the court been as succinct and clear as this indorser's signature the words "without re-instruction, then probably the plaintiff would course," or any words of similar import. Such not have had so many causes for complaint. an indorsement does not impair the negotiable While we realize there are many definitions character of the instrument. Error from County Court, Woodward County; Clyde H. Wyand, Judge. Action by J. H. Murphy against F. J. Estle and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded. as to just what is meant by "preponderance of evidence," however, we are mindful of the fact that it is almost as difficult to define what is meant by this term as it is to define "reasonable doubt." We fail to see any error in this instruction. The same may be said as to instruction No. 5. [1] Instruction No. 6 is as follows: "You are further instructed that if you should find from the evidence that the plaintiff Murphy was a stockholder in the Independchased the original note, of which the one now ent Harvester Company at the time he purin suit was a renewal, that then he, as a stockholder in said company, is chargeable with notice of the condition of the said company, and of the manner in which its business was conducted, including the sale of the stock in question to the defendants." It appears from the evidence that the Independent Harvester Company had sold stock in the company to the defendants, the defendants executing their joint note therefor. The harvester company hypothecated S. E. Galbreath and S. M. Smith, both of this note, with many others executed for Woodward, for plaintiff in error. shares in the company, to the plaintiff to se Swindall & Wybrant, of Woodward, for cure a large sum of money borrowed from defendants in error. the plaintiff. The evidence is not at all clear as to whether or not the plaintiff was PITCHFORD, J. This is an appeal from a stockholder; but, assuming that he was, the county court of Woodward county, where- we should be compelled to hold this instrucin the plaintiff in error had brought an ac- tion erroneous. To charge the jury that the tion against the defendants in error, seeking plaintiff, merely by being a stockholder in to recover judgment upon a promissory note the corporation, would be chargeable with executed by defendants to the Independent notice of the condition of the corporation For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes If this We have gone over the evidence in the case and fail to discover any evidence that would have justified a judgment in favor of the defendants even had the action been brought by the Independent Harvester Company. There is an entire absence of any evidence establishing fraud in the dealings with the harvester company and the defendants. and the manner in which its business was [ment or defect in the title of the person negoconducted, including the sale of the stock in tiating it." question to the defendants, thereby allowing the defendants the same defense against a bona fide purchaser as they would have against the harvester company, to say the least, would be very inconsistent. knowledge is imputed to the plaintiff being a stockholder, why would not the same notice be imputed to the defendants who were stockholders? Therefore, under this instruction, whatever knowledge the plaintiff had would also be imputed to the defendants. One being merely a stockholder is not required to possess the knowledge stated in the instruction. The business of a corporation is not conducted by the stockholders, but by the board of directors, elected, it is true, by the stockholders. We have been unable to find any decision, nor has counsel cited us to any, holding that a stockholder is chargeable with this knowledge. In Hardin v. Dale, 45 Okl. 695, 146 Pac. 717, L. R. A. 1915D, 1099, it was held that a director of an industrial corporation is chargeable with knowledge of everything it is his duty to know concerning commercial paper belonging to the corporation which he undertakes, as a director, to sell. To the same effect is Producers' National Bank v. Elrod, 173 Pac. 659, L. R. A. 1918F, 1016. See, also, 21 Am. & Eng. Cyc. of Law, p. 896. By this instruction, the jury was practically told to return a verdict in favor of the defendants. The instruction is clearly er roneous. [2,4] Plaintiff also complains of instruction No. 7, as follows: "The court instructs the jury that, where a party purchases a note which is indorsed to him 'without recourse,' he takes the same as a mere assignor, subject to all of the equities and defenses existing between the original parties to the note which existed at the time of the assignment, or which may arise afterwards, and of which the maker did not have notice or knowledge at the time of the assignment." It would appear that the object and purposes in the minds of all the parties at the time of the execution of the original note herein were in good faith. The matters set up by the defendants as a defense could not prevail against the original payee. There is nothing to indicate that any fraud or misrepresentation was used at the time. It might be, and no doubt was true, that the enterprise did not realize the expectations of the promoters. This probably is true in the great majority of enterprises launched by individuals; but evidence to substantiate fraud is lacking. There is nothing to indicate that the plaintiff did not take the note from the harvester company against the defendants in absolute good faith. was taken before due and for a valuable consideration. It In the case of First State Bank of Oklahoma City v. Tobin, 39 Okl. 96, 134 Pac. 395, Mr. Commissioner Sharp said: "The owner of a negotiable promissory note, who obtains it before maturity for a valuable consideration, without knowledge of any defect of title, and in good faith, holds it by a title valid against all the world." In Farmers' Bank of Roff v. Nichols, 25 Okl. 547, 106 Pac. 834, 138 Am. St. Rep. 931, 21 Ann. Cas. 1160, Mr. Justice Hayes said: "A negotiable promissory note was executed in payment of the premium on some life insurance policies. At the time of the delivery of the note to payee, who was agent for the insurance company, the payee executed a written agreement that, if the maker of the note within a stipulated time investigated the comsented, the note or the amount thereof in cash would be refunded to the maker by the payee. Held, that the contemporaneous agreement did not constitute the delivery of the note a conditional delivery or deny to the payee the right to transfer the same, and that one who purchased the note in due course of business, before maturity, for a valuable consideration, could recover in an action thereon, although Section 4088, R. L. 1910, is as follows: "Qualified indorsement constitutes the in-pany and found it not satisfactory or as repredorser a mere assignor of the title to the instrument. It may be made by adding to the indorser's signature the words 'without recourse,' or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument." Section 4102, Id.: "A holder in due course is a holder who has taken the instrument under the following conditions: First. That it is complete and regular upon its face. Second. That he became the holder of it before it was overdue, and with out notice that it had been previously dishonored, if such was the fact. Third. That he took it in good faith and for value. Fourth. That at the time it was negotiated to him he had no notice of any infirmity in the instru at the time of the transfer he had notice of the contemporaneous agreement." To the same effect, see Conqueror Trust Co. v. Simmon, 162 Pac. 1098; Showalter V. Webb, 42 Okl. 297, 141 Pac. 439. Were we to let the judgment in this case stand under the proof adduced at the trial, then we would, in effect, say of all law, (182 P.) so far as the same concerned negotiable | cates of stock, to the purchaser of shares of its paper, that it might as well be swept aside. stock at attachment sale. Evidently after it was discovered that the enterprise inaugurated by the Independent Harvester Company had failed to realize the promises of its promoters, the stockholders, as would be natural, became dissatisfied, and, whether fleeced or not, no doubt conceived themselves to be, and then sought to repudiate the obligations they had executed for stock in the company. We gather from the evidence that the harvester company erected a very expensive plant. There is nothing to show that any of the promoters were actuated by bad faith. Under the proof in the case, it was really the duty of the trial court, upon the conclusion of the evidence, to instruct a verdict in favor of the plaintiff. Under all the authorities that we have been able to examine, the defense in this action completely failed to measure up to the requirements of the law. Westlake V. Cooper, 171 Pac. 859, L. R. A. 1918D, 522; Cedar Rapids Nat. Bank v. Bashara, 39 Okl. 482, 135 Pac. 1051; Citizens' Savings Bank V. Landis, 37 Okl. 530, 132 Pac. 1101; Security Trust & Savings Bank of Charles City, Iowa, v. Gleichmann, 50 Okl. 441, 150 Pac. 908, L. R. A. 1915F, 1203. It is not necessary to notice the other assignments of error, as we do not believe the substantial rights of the plaintiff were, or could have been, affected thereby. The judgment of the trial court is reversed, and the cause remanded. (Additional Syllabus by Editorial Staff.) 4. ATTACHMENT 56-PROPERTY SUBJECTCERTIFICATES OF STOCK-"GOODS AND EFFECTS." tent, be regarded as property, they are distinct from the holder's interest in the capital stock of the corporation, and are not "goods and effects" within the meaning of Rev. Laws 1910, § 4815, relating to attachment. While certificates of stock may, to some ex [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Effects.] Error from District Court, Muskogee County; R. P. De Graffenried, Judge. Action by G. K. Harris against the MidContinent Life Insurance Company and H. C. King and R. W. Reece, its president and secretary. Judgment for defendants, and plaintiff brings error. Affirmed. Geo. T. Webster, of Miami, for plaintiff in error. Blakeney & Maxey, of Tulsa, for defendants in error. KANE, J. This was an action commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendants below, for the purpose of recovering damages for the refusal of the corporation to issue certificates of stock to the plaintiff for certain shares of its stock purchased by him at judicial sale held pursuant to an order issu OWEN, C. J., and HIGGINS, SHARP, and ed in an attachment proceeding. Hereafter, MCNEILL, JJ., concur. (75 Okl. 105) Upon for convenience, the parties will be designated HARRIS v. MID-CONTINENT LIFE INS. in error for the purpose of reviewing the ac CO. et al. (No. 7894.) tion of the trial court. The petition alleged, in substance, that one W. W. Beasley, a res (Supreme Court of Oklahoma. June 24, 1919.) ident of the state of Tennessee, was shown (Syllabus by the Court.) 1. ATTACHMENT 56 - PROPERTY SUBJECT – CORPORATE STOCK. The laws of this state provide for the taking and sale of shares of corporate stock by proceedings in attachment. 2. ATTACHMENT 73 EXECUTION 29SITUS OF SHARES OF Corporate STOCK. For purposes of execution or attachment, the situs of shares of stock is within the state where the corporation resides, and they may lawfully be levied on in such state, though owned by a nonresident. 3. TROVER AND CONVERSION 2-RIGHT OF ACTION-REFUSAL TO ISSUE CERTIFICATES or STOCK. Conversion will not lie against a corporation and its officers for their refusal to issue certifi by the books of the Mid-Continent Life Insurance Company to be the owner of certain shares of its capital stock, certificates of stock therefor having been issued to him which were in his possession in the state of Tennessee; that the plaintiff in the present action sued Beasley for the recovery of money, securing service on him by publication, and at the same time sued out a writ of attachment, under which the sheriff attached the shares of stock belonging to Beasley by going to the office of the corporation and taking from the stubs of the stock books the data relating to such certificates and leaving a notice with the corporate officers that he attached the defendant's stock in that corporation. The plaintiff also filed an affidavit in garnishment, the validity of which it will not be necessary to consider. The defendant For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |