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covery on the other; a cause of action for injury being for the benefit of the party injured, and, if death ensued, then the amount of recovery to be assets of his estate, while a cause of action for death is for the benefit of the dependents entitled thereto."

In an opinion by Federal Judge McPherson in Jacobs v. Glucose, etc., Co. (C. C.) 140 Fed. 767, while reluctantly following the Iowa rule otherwise, observed:

"Plaintiff's counsel contend with much force that under an Iowa statute all causes of action survive, despite the death of the person entitled to the same; and he rightly contends that, had Jacobs survived, he could have maintained the action for pain and suffering. Under this statute I am not able to see why he did not have a cause of action and his estate another. And whether such recoveries would be paid over to the same person in the same right, with or without the same exemptions, in my opinion, is of no importance. The proper probate court would take care of that question. Suppose that at the end of five days, when it was not known that Jacobs would die from his injuries, the attending physician had negligently or willfully given Jacobs a poison, from which he died within a few minutes? Can any lawyer say that the administrator could not maintain an action against the defendant herein for pain and suffering, and another action against the physician for damages to the estate? And if this be so, then by what logic or reasoning can it be said that two actions cannot be brought against one wrongdoer, the one for pain and suffering and the other for damages to the estate? Both are actions for compensatory damages. The one survives to the administrator under one statute, and the other is given to the administrator under another."

As sustaining a recovery, for the benefit of the estate, as distinguished from a recovery on account of pecuniary loss to the family, it was held in the English case of Bradshaw v. Lancashire & Yorkshire Ry. Co., L. R. 10 C. P. 189, that the principle upon which the first-mentioned recovery was allowed was not affected by Lord Campbell's Act. In that section the defendant was a common carrier | on whose road the deceased was a passenger when the injuries were received which resulted in his death. The action seems to have been brought in form ex contractu. Justice Grove said in the opinion:

See, also, as bearing on the point, International & G. N. R. Co. v. Kuehn et al., 70 Tex. 582, 8 S. W. 484; Roach, Adm'r, v. Imperial Mining Co. (C. C.) 7 Fed. 698.

But it is contended, as against the force of authorities cited above, that the case of McCarthy v. C., R. I. & P. Ry. Co., 18 Kan. 46, 26 Am. Rep. 742, decided by the Kansas court in 1877, and the later cases following it, are controlling. It is true in that case the court seems to have held that the section allowing a recovery of pecuniary loss to certain beneficiaries took away the right of the administrator to sue for the benefit of the estate, where death resulted from the injuries. The court reached this conclusion that the general survival section of the statute (our section 5943, supra) must be limited, by construction, so as to permit actions to survive only in cases where the injured person does not die from those particular injuries. We do not believe there is any room for such a construction of this section of the statute; that it is opposed to reason and the generally observed rules of construction, and is against the weight of authority in states statutes. Hutchinson V. having similar Krueger, 34 Okl. 23, 124 Pac. 591, 41 L. R. A. (N. S.) 315; Ex parte Bowes, 8 Okl. Cr. 201, 127 Pac. 20.

It has been pointed out clearly above that most of the states around us, and from which much of our population came, had applied an entirely different construction. Therefore we feel that the statute having come here construed, as it had been by so many states, contrary to the Kansas construction, we are not bound, as a matter of law, to follow the Kansas rule. We are strengthened in this belief when we read the criticism of the Kansas construction in McCarthy v. C., R. I. & P. Ry. Co., supra, announced in Hulbert v. City of Topeka, 34 Fed. 510, by Judge Brewer, who was on the Kansas court at the time, and concurred in the McCarthy decision. Judge Brewer said in the Hulbert Case, in discussing the McCarthy Case, that:

"Does the fact that in this case, besides the "I was a member of the supreme bench of injury to the estate, the testator's death has Kansas at the time this opinion was filed and likewise resulted from the breach of contract concurred in it. I feel constrained to follow make any difference, or does the fact that that decision; and yet I may be permitted to provision has been made in such cases for com- say that examination of this case has led me pensation in respect of the death to certain rel- to doubt the correctness of that conclusion, for atives by Lord Campbell's Act take away any the measure of damages and the basis of reright of action that the executrix would have covery under the two sections are entirely dishad but for that act? It does not seem to tinct. Section 422 gives a new right of action, me that the act has that effect, either express- one not existing before; an action which is ly or by necessary implication. The inten- not founded on survivorship; an action which tion of the act was to give the personal rep-takes no account of the wrong done to the resentative a right to recover compensation as a trustee for children or other relatives left in a worse pecuniary position by reason of the injured person's death, not to affect any existing right belonging to the personal estate in general. There is no reason why the statute should interfere with any right of action an executor would have had at common law. In the case of such right of action he sues as legal owner of the general personal estate which has descended to him in course of law; under the act he sues as trustee in respect of a different right altogether on behalf of particular persons designated in the act."

decedent, but one which gives to the widow or next of kin damages which have been sustained by reason of the wrongful taking away of the life of the decedent. It makes no diference whether the injured party was killed instantly or lived months; whether he suffered lingering pain or not; whether or not he was put to any expense for medical attendance and nursing. None of these matters are to be considered in an action under section 428; and the single question is: How much has the wrongful taking away of his life injured his widow or next of kin? * * * Suppose, as in this case, the decedent lived a long time after

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131 Pac. 686.

[5] 3. The next point made is that there services rendered deceased. The jury, as has was no proof of the value of the medical been observed in stating the facts of this case, itemized the damages allowed in the verdict. The jury allowed $750 for medical attention, etc. There was positive proof that plaintiff had paid $450 for medical attention; beyond this there was no evidence, except by the inference that it costs money to obtain drugs and nursing, and be cared for at a hotel, etc., but the jury cannot award expenses of this kind without some proof of their value or what was paid out on that account. This item is $300 too large under the evidence. This will have to be remitted.

injury, was put to great expense for medical ( on crutches, etc. This evidence was comattendance and nursing; for these matters, petent. Adkins v. Wright et al., 37 Okl. 771, which work a loss to the estate, she had a right of action in her lifetime. This action it is which, by section 420, survives. * It is obvious that both of these causes of action may exist against two different parties, and why may they not exist against the same party? Suppose A. commits an assault and battery on B., a cause of action exists in favor of B. against A. for those injuries which survives by section 420. Suppose, after such action is instituted by B., he should be killed by the wrongful act of C. There certainly would be an action under section 422 against C. for such wrongful death. Would that defeat the first action, or would not that survive, as provided under section 420? If that be true where there, are two wrongdoers, why should it not also be true where there is but one wrongdoer?" We also note that the Kansas Court of Appeals in the M. P. R. Ry. Co. v. Bennett, 5 Kan. App. 231, 47 Pac. 183, took a different view from that announced in the McCarthy Case, although the Supreme Court has continued to hold fast to the original holding.

The Kansas Court held that a cause of action arose under the section allowing damages to the widow, and that decedent's own cause of action for damages for the injuries was not revived, but died with him. Illinois in Holton v. Daley, Adm'r, 106 Ill. 131, takes the view that the statute giving damages to the relatives is a continuation of the common-law action decedent had for his injuries. These two courts reach the same conclusion, that but one recovery can be had in case of death, but the reasoning of the one in reaching it is inconsistent with the reasoning of the other in reaching the same conclusion. This illustrates the uncertain foundation for the holding, which we are constrained to believe the courts came to make out of, in our judgment, the groundless fear that the person or corporation, which wrongfully causes the death of a human being, would be compelled to pay too heavy damages.

The views we have expressed here in no way conflict with the holding in Shawnee Gas & Elec. Co. v. Motzenbocker, 138 Pac. 790. In that case sections 4611, 4612, Stat. 1903 (sections 5945, 5946, Comp. L. 1909; sections 5281, 5282, Stat. 1910), were being considered. [4] 2. The next point urged in the brief is that the court erred in admitting the testimony of the widow of deceased. This point is without merit. The testimony of the witness, after the termination of the marital relation, was as to facts within her knowledge, not to confidential communications from her husband. She testified as to his actual condition after his injury; as to the necessity for attention and nursing; that she took him to Illinois, where he died; how long he lingered there; and that he was able to walk

4. The next objection is that the court erred in refusing to admit in evidence the pleading in the other suit. This evidence was for the evident purpose of establishing the former recovery, on the theory that it was a bar and complete defense in this suit. Having held that it was not, it was therefore immaterial, and its rejection was not error.

5. Complaint is made also as to the damages allowed for loss of business. We think this point is well taken. Defendant in error replies to this contention as follows: the exact amount of loss to the business of de"While there was no definite evidence as to ceased, yet it was apparent that the closing of the factory must, of necessity, have injured the business. If the court is of the opinion that they were not justified in so doing, the same have indicated in reference to the amount alrule would be applicable to this item as we lowed for physicians' services, etc."

We do not think the item of $2,000 allowed in the verdict, evidently on the theory that the small manufacturing plant of deceased was forced to close down at a loss because of the injury and death of Goode, was justified. This sum should be remitted if the judgment is to stand.

[6] 6. The objections urged to the instructions ought not to be sustained. The feature of the instructions most questionable, related to the recovery of certain damages which we will require to be remitted; therefore they worked no injury.

We therefore conclude that if, within 30 days from the rendition hereof, the defendant in error shall file with the clerk of this court a remittitur in the sum of $2,300 to cover the award of improper damages, the judgment as to the remaining sum should be in all things affirmed.

If the remittitur is not made the case to stand reversed, with remand for a new trial.

PER CURIAM. Adopted in whole.

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1. ATTORNEY AND CLIENT (§ 165*) ACTION FOR FEES-PETITION-CONSTRUCTION.

Where a petition of attorneys for the recovery of an unpaid balance of reasonable compensation for their services as such in a prior action by the present defendant, who there sued in his own right in respect to a part of the relief sought and in the right of a corporation in respect to the other relief sought, and who engaged the services of plaintiffs upon his own obligation to pay them for the whole of their services such sum as the same were reasonably worth, alleges that "said suit was expected to and did result in a decree in part beneficial to said" corporation, and "the court trying said cause fixed and adjudged attorney's fees and compensation against said" corporation "in favor of the plaintiffs"; that "the services, so as aforesaid rendered to the defendant, excluding the allowance aforesaid, are of the reasonable value of ten thousand ($10,000) dollars; that the said defendant at the time of the bringing of said suit paid the plaintiff the sum of five hundred dollars ($500); and that the balance, to wit, the sum of nine thousand and five hundred dollars ($9,500) is still due the plaintiffs, and unpaid," etc., where there is no other pertinent allegation, and where the order of the court making such allowance recites that the same is in full of all services beneficial to such corporation, such petition will be construed as demanding such balance after allowing as a credit upon the whole fee to which plaintiffs were originally entitled the amount so allowed by said court according to the terms of the order of such allowance; and plaintiffs are not entitled upon such allegation to recover as such balance additional compensation for any portion of their services beneficial to such corporation, especially where it appears from their own evidence that such order was made at their request and in their own right, and at a time when defendant was represented by other counsel in respect thereto.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 365-367; Dec. Dig. § 165.*]

or is such property out of which the same may be paid.

[Ed. Note. For other cases, see Corporations, Dec. Dig. § 214.*]

On rehearing. Former opinion adhered to.
For former opinion, see 142 Pac. 989.

THACKER, C. [1] We think still that the language of plaintiffs' petition, as quoted in the original opinion, shows that this is an action for a balance after allowing defendant a credit of just what the federal court allowed the plaintiffs plus $500 paid the plaintiffs by the defendant about the time of the commencement of the action in that court. We are unable to construe plaintiffs' petition otherwise than as, by implication at least, admitting that defendant is entitled to such credit allowance according and subject to the terms of the order of the federal court making the same. We refer to the language of the petition, quoted in our original opinion as carrying this implication, as in effect admitting the existence and validity of the order and that plaintiffs are accepting beneficiaries.

In the petition for rehearing, it is stated: "As appears from the evidence in this case, much of the efforts of Curry and Sapp on behalf of the New York Zinc Company, while successful, did not result in the bringing of any fund into court nor the recovery of property, but the cancellation, merely, of unauthorized liens. The federal court, therefore, in making the allowance, could not make any allowance and did not make any allowance for services beneficial to the New York Zinc Company that did not result in recovery of property or the bringing of a fund into court for distribution, but these services were performed and Colley had agreed to pay for them. It is clear, therefore, that the measure of their recovery against Colley is not determined by the measure of recovery Colley was entitled to as against the New York Zinc Company for benefits conferred by the employment of counsel."

We deem it unnecessary to determine 2. CORPORATIONS (§ 214*)-ACTION BY STOCK- whether the cancellation of a lien, a judgHOLDER -- - ATTORNEY'S FEES - RIGHT TO AL-ment, and other claims by the action in the

LOW-AMOUNT.

Where a stockholder, who is not directly injured nor entitled to sue in his own primary right, sues in a federal court in the primary right of his corporation, which had been directly injured, for relief for which such corporation should have sued, and such suit results in benefits direct to such corporation, so that such stockholder and his attorney may properly be regarded as representing such corporation in such suit, the court trying the case has the power to allow, and may rightfully allow, such attorney full compensation for his services, which were successful and resulted in such benefits, out of any corporate funds in its hands or corporate property under its control in such suit, and in fixing the amount of such allowance, where such stockholder employed such attorney upon a contract to pay him the reasonable value of his services, the order of allowance is not necessarily limited to the value of the services which resulted in bringing funds into court or property under the control of the court, but may be for full compensation for all

such services as resulted in such benefits to such corporation, provided there are such funds

federal court, in that case, operated as a "recovery of property" within the rule to which such question relates; but the order imports the existence of facts authorizing the court to make the same, especially as against the accepting beneficiaries.

[2] The statement that the federal court "did not make any allowance for services beneficial to the New York Zinc Company that did not result in the recovery of property or the bringing of a fund into court for distribution," and that "the measure of the recovery Colley was entitled to as against the New York Zinc Company for benefits conferred by the employment of counsel" was not determinable by that court, is certainly not warranted by the terms of the order. The further statement that the federal court could not make such allowance does not seem material, if we are correct in construing

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

are the amount and sation to be recovered and trouble involved, the character and imporcharacter of the services rendered, the labor, time, tance of the litigation in which the services were rendered, the amount of money or the value of the property to be affected, the professional and standing in their profession of the attorneys. skill and experience called for, the character * * * The result secured by the services of the attorneys may be considered as an imporEnc. Law, 420; 4 Cyc. 994." tant element in determining their value.' 3

One of the best considered of the abovecited cases, one upon which the plaintiffs ta & W. P. R. Co., supra. especially rely, is that of Alexander v. AtlanWe do not think that case sustains their contention. While

plaintiffs' petition as demanding only a bal-es to be considered in determining the compenance after in effect admitting such allowance according to its terms; but we are unable to agree to this statement. It should be borne in mind that the New York Zinc Company, against which the order was made and which was a party defendant in that action, is not complaining of the order, and, for aught we know, may have assented to it. The plaintiffs, who upon the trial of the present case and since that time have denied that they are bound by the terms of the order as we have construed the same, asked the federal court in their own right for and are accepting beneficiaries of that order, the defendant being the only other beneficiary. The plaintiffs do not appear to have questioned the order, or the power of the federal court to make same, in that court or in that case. The power of the federal court to make the order in question, if the facts warrant, is, we assume, beyond question. None of the parties to or attorneys in the federal court case appear to have there questioned either the power of the court to make the order or its rightfulness in any respect material to this case; and we do not think plaintiffs can be heard to question the same here.

Assuming, in deference to plaintiffs' contention in this respect and merely for the purpose of discussing the same, that it is material to inquire whether the federal court might properly have made the order in question under the facts in that case, so as to be in full of all services beneficial to the New York Zinc Company, we come now to that question. In support of their contention that the federal court could not and did not "make any allowance beneficial to the New York Zinc Company that did not result in recovery of property or the bringing of a fund into court for distribution," the plaintiffs have directed our attention to and we have examined the following cases: Forrester v. Boston & M. Consol. Copper & Silver Min. Co., 29 Mont. 397, 74 Pac. 1088; Lillard v. Oil, Paint & Drug Co., 70 N. J. Eq. 197, 58 Atl. 188; Davis v. Bay State League, 158 Mass. 434, 33 N. E. 591; Attorney General v. North Am. Life Ins. Co., 91 N. Y. 57, 43 Am. Rep. 648; Davis v. Gemmell (Brydon v. Gemmell) 73 Md. 530, 21 Atl. 712; Alexander v. Atlanta & W. P. R. Co., 113 Ga. 193, 38 S. E. 772, 54 L. R. A. 305. These authorities are cases in which the question was raised in the same case and court in which the order was made; and, further, we think these authorities apparently show that the order, in allowing compensation to the full extent of the services beneficial to the New York Zinc Company, was properly and rightfully made.

it is true that in that case it is stated that
after an examination of numerous cases the
court had found none in which, in the absence
of statute and when no property has been
brought under the control of the court and
no fund has been brought into court for dis-
tribution, such fees have been allowed, we
think it nevertheless appears from that case
that the reason of this rule lies alone in the
following language used by that court:
"The court has nothing within its grasp to
dispose of, which furnishes it the opportunity
and imposes upon it the duty of recognizing and
giving effect to substantial equities and existing
rights."

It thus appears that the awarding of such fees against the corporation, for the benefit of which a stockholder has sued, is denied because the court has no appropriate means and therefore no duty of enforcing payment of same and not because the stockholder is not otherwise rightfully entitled to be reimbursed or compensated for his expenses, including attorney's fees. We think that case clearly shows that wherever the corporation itself is directly injured, as where corporate property or franchises have been taken or wrongfully dealt with and the action is to undo fraud and breaches of trust already committed and restore to the corporation assets thereby wasted, so that the corporation is primarily interested and the right of action is directly in it, a stockholder, who has properly been permitted in such case to bring an action, which the corporation ought to have brought, for the direct and immediate benefit of the corporation itself, and not of such stockholder, is entitled to reimbursement out of corporate assets for all his proper expenses, including reasonable attorney's, fees in such of his efforts as resulted in benefits to the corporation. In other words, we think that case shows that the right to such allowances as attorney's fees arises out of the fact that both the suing stockholder and his attorney are regard

In Forrester v. Boston & M. Consol. Copper ed as representing the corporation itself in & Silver Min. Co., supra, it is said:

such cases. The fact that their efforts were "The authorities are unanimous in holding successful is material and necessary to show that the plaintiffs are entitled to recover a that they may properly be so regarded as reasonable attorney fee, and for the purpose of determining the amount of such fee the follow-representing the corporation. The fact that ing rule has been laid down: The circumstanc- there are funds in hand or property within

favor of the plaintiff in the sum of $250, to reverse which this proceeding in error was commenced.

[1] It is contended, on the part of the

control of the court is only important as giving the court the opportunity and imposing upon it the duty of recognizing and giving effect to the rights and equities arising out of the expenditures of the stock-plaintiff in error, that there is no evidence holder and the services of his attorney in such a case, and is in no sense a basis of the right to reimbursement or compensation or the measure of the value of the same.

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1. INSURANCE (§ 665*) CONSTRUCTION OF POLICY-CHANGE OF INTEREST-LEASEHOLD. Record examined and held: (1) That there was no such change in the title or interest as to constitute a violation of the clause of the policy which provides in effect that, in case any change shall take place in the title or interest or possession of the property insured, the policy shall be null and void; (2) that the interest of the assured was a leasehold; (3) that such interest is insurable.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 1555, 1707-1728; Dec. Dig. $ 665.*]

2. INSURANCE (§ 115*)-INTEREST OF INSURED. Any legal or equitable estate, or any right which may be prejudicially affected, or any liability which may be brought into operation, by a fire, will confer an insurable interest.

tending to support the judgment of the court below, (1) because the evidence shows such change in the title or interest of the assured as to constitute a violation of a certain clause of the policy which provides in effect that, in case any change shall take place in the title or interest or possession of the property insured, the policy shall be null and void; (2) that, at the time the fire occurred, the assured had no insurable interest in the property destroyed. We are unable to agree with counsel for plaintiff in error. It seems that the house destroyed was erected upon an Indian allotment by the assured, pursuant to the terms of a certain lease, which had been duly assigned to him within two or three months prior to the date of its expiration. The lease contained the following provision:

from any houses, buildings, fences, or other improvements erected thereon during the time for which said land is hereby leased by him, but said houses, buildings, fences or other improvements shall remain a part of said land and become the property of the party of the first part as a portion of the consideration for this lease in addition to the other considerations herein named, and that he will surrender and return said land and premises at the expiration of this lease in as good condition as when received, ordinary wear and tear in the proper use of the same for the purpose herein indicated and unavoidable accidents excepted."

"That he (the lessee) will not remove there

This lease was in force and the assured was in possession of the premises thereunder at the time the policy of insurance was written. The lessee was bound to surrender the premises on January 1, 1910, with the buildings thereon.

The uncontradicted evidence shows that an application for a renewal of the lease had been made by the assured prior to the issuance of the policy, and that said renewal was granted, and that, immediately upon the expiration of the first lease, the new lease, containing a provision identical in effect with the one above quoted from the old lease, became effective. ing the new lease, counsel contend, wrought the change in title which made the policy void. They say in their brief:

Tak

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 139-157, 177; Dec. Dig. § 115.*]| Error from County Court, Comanche County; James H. Wolverton, Judge. Action by J. E. Coker against the Home Insurance Company of New York. Judgment for plaintiff, and defendant brings er- disputed that, during the period for which the "Under the foregoing state of facts, it is unpolicy of insurance was issued, the interest of the assured changed from that of owner to that of a mere tenant. On January 1, 1910, the building insured became the property of another, and, at the time the building was destroyed, the assured had no title or interest therein; the same being the property of the Indian lessor."

ror. Affirmed.

Scothoin, Caldwell & McRill, of Oklahoma City, for plaintiff in error. Stevens & Myers, of Lawton, for defendant in error.

KANE, C. J. This was an action on a fire insurance policy, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Upon trial to the court, there was judgment in

[2] We do not think there was any change of title. The assured never was the unqualified owner of the house. It was erected pursuant to the terms of the first lease, and

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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