compelling the attendance of witnesses without compensation for their services, is a question not involved in this case. Syllabus by the court.) ELLEN M. SHARP v. CHOCTAW RY & LIGHT Co. This court winot reverse the ruling of the trial court granting a new trial, unless it can be seen, beyond all reasonable doubt, that the trial court has manifestly and materially erred with respect to some pure, simple and unmixed question of law, and that, except for such error the ruling of the trial court would not have been so made. The Supreme Court will very seldom and very reluctantly reverse the decision or order of the trial court which grants a new trial. Legal Record J. H. BETTIS v. A. C. CARGILE. When a case is brought to this court by case-made, and the case-made was not served within the three days prescribed by the statute (Comp. Laws 1909, Sec. 6074), and no order was secured extending the time, and when the case-made does not contain an averment, by way of recital, that it contains all the evidence, and when no motion for new trial was filed or presented to the trial court, motion to dismiss will be sustained. WESTERN UNION TEL. COMPANY, VS. A. P. SIGHTS and WM. JORGESON. (Legal Record.) Error from District Court of Custer County. Hon. Jas. R. Tolbert, trial Judge. No. 1880 Affirmed 1. On motion to dismiss for the reason that the casemade was not served within the time prescribed by the order of the court, where it appears from an examination of the record that the only date.referred to in the Journal entry is not the date on which the motion for new trial was overruled and the time given, the words "from this date" in the journal entry will be construed as applying to the date on which it is filed, and not the date on which the trial was commenced. 2. In an action against a telegraph company to recover for the negligent non-delivery of message containing an offer to make a contract, evidence that if the message had been delivered the offer would have been accepted, is competent. 3. Compensatory damages may be recovered from a telegraph company for failure to deliver a message containing an offer to enter into a contract, where there is competent evidence establishing the proper measure of damages. 4. Under Sec. 9 of Art. 23, of the Constitution, which provides, that Any provision of any contract or agreement, express or implied, stipulating for notice or demand other than such as may be provided by law as a condition precedent to establish any claim, demand, or liability, shall be null and void," a condition printed on the back of a telegram message, which provides that the "company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within 60 days after the message is filed with the company for transmission," is not binding. (Syllabus by the Court.) J. W. GARDNER, Plaintiff in Error, VS. No. 1961 SCHOOL DISTRICT No. 87 of KAY County, Okla. Error from District Court of Kay County. Affirmed 1. Bonds issued for the purpose of refunding outstanding legal warrant indebtedness under the act of 1895, were required to be issued under article one chap. 7, of Sess. Laws of 1895, p. 63, as amended by article one, chap. 5, of Sess. Laws of 1897, p. 74, and not art. 2, chap. 7, of Sess. Laws of 1895. 2. A statute which is enacted for the primary purpose of permitting refunding bonds to be issued, and which prescribes the terms and conditions upon which they may be issued and the form and manner of their execution, supersedes a general statute which does not refer to refunding bonds, but which does contain language which might be broad enough to cover them if the special statute was not in existence. 3. Where there are two provisions of the statutes, one of which is special and particular and clearly includes the matter in controversy, and where the special statute covering the subject prescribes different rules and procedure from those in the general statute, it will be held that the special statute applies to the subject-matter and that the general statute does not apply. 4. When negotiable bonds are issued by officers who have no authority under the law, they are not the valid obligation of a municipality for which the officers purport to act. 5. It is within the power of a State to prescribe the form in which municipal bonds shall be executed and the officers who shall execute them, and if they are not executed in the manner prescribed, they impose no liability upon the municipality. 6. When negotiable bonds have been unlawfully issued by unauthorized officers of a municipality, and have passed into the hand of innocent purchasers, the municipality is not estopped from asserting their invalidity when the bonds disclose upon their face the purpose for which they were issued, and the absence of the signature of the officer who is required by law to execute them. 7. Those dealing with a municipality do so with notice of its powers, and purchasers of municipal bonds are charged with notice of the laws of the State granting power to take the bonds they find on the market. (Syllabus by the Court.) WESTERN UNION TEL. COMPANY, vs. CLAUDE REEVES. Error from District Court of Choctaw County, Malice or Fraud for Exemplary Damages. No. 1910 1. Exemplary or punitive damages are not recoverable from a telegraph company for breach of contract to to promptly deliver messages. 2. To authorize a judgment for exemplary damages in an action sounding in tort, the proof must show some element of fraud, malice or oppression. The act which constitutes the cause of action must be actuated by or accompanied with some evil intent, or must be the result of such gross negligence-such disregard of anothers right as is deemed equivalent to intent. Where there is a want of any of these elements, the damages recoverable are confined to the loss sustained and nothing more. 3. While by statute telegraph companies are made com mon carriers and required to use the utmost diligence in the delivery of messages transmitted by them, the failure so to do does not alone render such carrier liable for exemplary or punitive damages, as distinguished from compensatory damages. 4. Failure to exercise the degree of care enjoined by statute will subject the carrier in default to liability for the loss sustained, but not for exemplary damages unless there also exists the additional elements necessary to constitute such latter character of damages. Gross negligence is the want of slight care and diligence. (See Comp. L. 1909, sec. 2491.) 6. Where there is uncontradicted evidence of a bonafide attempt to deliver a telegram, exemplary damages for willfulness and wantonness cannot be recovered. (Syllabus by the court.) INSURANCE CASES. (This Important Division of the Law will hereafter occupy a special Department in this Journal. It has often been called to our attention not only by lawyers but by Insurance Companies and their local agents who are readers and desire the latest rulings of the Courts on all Insurance Questions.) Authority of an Agent.-A clause in a fire insurance policy placing a limitation upon the power of an officer, agent or other representative of the insurance company as to manner of waiver of any provision or condition in the policy may itself be waived. An Insurance company cannot make its local agent the medium through which all the benefits of a policy flow from the insured to it, and then deny that he has authority to represent it when the benefits of the insured are involved. Hartford Fire Insurance Co. vs. Brown, 53 So. R., 828 INSURANCE-What is Riot, and when Available as a Defense to Insurer. The question of the liability of an insurance company for the destruction of a building burned to secure a fugitive from justice was considered, apparently for the first in a recent Kentucky case. The Court holding that the unauthorized burning of a building by a deputy United States marshal, to effect the arrest of persons who had taken refuge therein and were holding the authorities at bay with firearms, does not come within a provision of a policy of insurance upon the building, exempting the insurer from liability for loss caused by directly or indirectly by riot or by order of any civil authority, for although the fugitives were guilty of a riot, their acts were not the cause of the loss, which was due to the unlawful acts of the marshal. For the full opinion see, Am. CenInsurance Co. vs. Stearns Lumber Co., N. S. 36 L. R. A. 566. |