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servation laws and keeping inspectors throughout the state to conserve gas at the wells if approximately 25 per cent. of the gas is to be wasted through the distributing plants. The leakage in the plaintiff's gas plant for the year 1921 was 23.3 per cent. This was excessive, and strongly tends to show inefficiency in the management of the plant. The amount of leakage should be determined by the Commission in each case according as the facts are established by proper testimony, keeping in mind the fact that, where the cost of maintaining the plant is as great or greater than the gas conserve, the Commission may be more liberal in the amount allowed for leakage. By using 10 per cent, leakage as allowed by the Commission and the valuation claimed by the gas company the following is a statement of the result obtained: The rate base value claimed by the plaintiff in error as of June 30, 1921, is $488,477.19. The return of 8 per cent. allowed by the Corporation Commission for interest and dividends and 5 per cent, additional for depreciation and amortization on the value as alleged by the plaintiff amounts to $63,502.04. The operating expenses, including cost of plaintiff's gas and the taxes for the same year, were $328,411.53, making a total necessary for the plaintiff to earn in order to meet its operating costs, taxes, allow a fair return for interest and dividends and a reasonable amount for depreciation and amortization of $391,913.57. During the year ending November 30, 1921, the plaintiff's gas sales amounted to 956,025 cubic feet. The plaintiff's rate, as authorized by the Commission, was 47 cents per M cubic feet for the first 100,000 feet, 37 cents for the next 400,000 cubic feet, and for all over 500,000 cubic feet 27 cents, with a discount of 2 cents per M cubic feet for prompt payment of bills. The met rates Were therefore 45, 35, and 25 cents, respectively, as the additional 2 cents operated only as a penalty on the very small number of bills which were not paid promptly. Of the total of 956,025 M cubic feet of gas sold during the year ending November 30, 1921, 219,233 M cubic feet were sold at the 25 cents step in the rate, and the remainder, 736,792 M cubic feet, at the other two steps in the rate; but no division was made as to the number of feet sold at 45 cents and the number sold at 35 cents. Figuring the total sales at the two top steps in the rate at the higher step of 45 cents, it amounts to $331,556.40, and the 219,233 M cubic feet sold at 25 cents amounts to $54,80S.25, making a total of $3S6,364.65. Deducting the amount derived from the sale of gas from the total amount necessary for the plaintiff to earn, as above set out, would result in a deficit of $5,548.92. An increase of 2 cents per M cubic feet on the quantity of gas sold at the first two steps of the rate would make an additional revenue of $14,

735.84, which would change the deficit to a surplus of $9,186.92, which should offset the gas sold at the second step in the rate, that is, 35 cents, which was computed at 45 cents in the above calculations, and also leaves an additional amount for leakage over the amount allowed by the Commission. In view of this situation, the following schedule of rates is hereby established as follows: (a) The first 100,000 cubic feet per month, 50 cents per M. (b) The next 400,000 cubic feet per month, 40 cents per M. (c) All over 500,000 cubic feet per month, 28 cents per M. [These rates should remain in force and effect as a permanent rate until Such time as the Commission may make a full and complete investigation as herein required, at which time the Commission should promulgate such rates as may be fair and reasonable from the evidence introduced at such investigation. The plaintiff may cooperate with the delivering or producing company in making such industrial rates as may be necessary to meet fuel competition. The cause is remanded to the Corporation Commission, with directions to proceed in accordance with the views herein expressed.

JOHNSON, C. J., and KANE, NICHOLSON, COCHRAN, BRANSON, and MASON, J.J., concur.

HERRON v. MILLER. (No. 14490.) (Supreme Court of Oklahoma. Nov. 6, 1923.)

(Syllabus by the Court.)

1. Limitation of actions & 130(1)–Statute allowing new action not applicable to actions commenced in other states. Section 190, Comp. St. 1921, providing that, where an action which has been commenced within due time fails otherwise than on its merits, a new action may be commenced within one year after such failure, refers to actions which have been commenced within this state within due time, and have failed otherwise than upon the merits; but the statute has no application to actions which have been commenced within other states and have failed otherwise than upon the merits.

/Additional Syllabus by Editorial Staff.)

2. Limitation of actions 3-31-Petition for injuries in collision held to be for tort, and not for breach of contract. A petition by a railroad passenger for injuries sustained in a collision between trains held not to be based on contract but, to be one for breach of obligation not arising from contract, and Comp. St. 1921, § 185, subd. 3, limiting the time for bringing suit to two years, was applicable, instead of subdivision 2, authorizing suit on contract not in writing to be brought within three years.

Appeal from District Court, Ottawa County; S. C. Fullerton, Judge.

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COCHRAN, J. This action was commenced by the plaintiff in error against the defendant in error for the recovery of damages for personal injuries sustained by the plaintiff in error on November 28, 1916. The parties, will hereinafter be referred to as they appeared in the trial court.

The defendant contended that the action was barred by the statute of limitations, and this question was presented by a general demurrer and by answer. The case was submitted to the jury, and a verdict returned for the plaintiff, but the trial court sustained a motion for a new trial on the ground that the action was barred by the statute of limitations, and this appeal presents only the question as to whether the action was barred by the statute of limitations.

The plaintiff admitted that the action was brought more than two years after the injury was received, but contended that within the statutory period an action had been commenced by her in the circuit court of Jasper county, Mo., and was thereafter, in January, 1919, dismissed on the motion of the defendant, and that the merits of said cause of action were not adjudicated and determined in said suit, and that this action was

Commenced within one year after the dis

missal of the cause in Missouri. The plaintiff contends that the action is not barred by the statute of limitations by reason of section 190, Comp. Stat. 1921, which provides:

"If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”

The defendant contends that this statute has no application where the previous suit was filed in a court of another state, but only *pplies to suits which have been commenced in a court of competent jurisdiction within the state of Oklahoma and have failed otherwise than upon the merits. The plaintiff "ntends that, if an action is commenced within due time in any court of competent jurisdiction, whether in the state or out of the state, and fails otherwise than upon the

merits, the plaintiff has one year thereafter within which to file his cause in this state. In Several instances it has been held that this statute applies where actions have been Commenced in state courts and have failed otherwise than on the merits, and thereafter, within the statutory, period, a new suit was commenced in the federal court of the same state. These decisions are based upon the theory that the state courts and the federal courts have concurrent jurisdiction over certain classes of cases, and section 914, U. S. Rev. Stat. (U. S. Comp. St. § 1537), which provides:

“The practice, pleadings, * * * forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding,”

and section 721, U. S. Rev. Stat. (section 1538), which provides:

“The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.”

In Kansas City Southern Railway Co. v. Akin, 138 Ark. 10, 210 S. W. 350, the court said:

“The language of the statute is exceedingly comprehensive. There are no restrictions to causes of action begun in the state courts, There is nothing to indicate a purpose to so confine it. The language is broad enough, and was doubtless so intended, to cover any action in any court having jurisdiction within the state.”

It has been held that the commencement of a suit in one state does not suspend the statute of limitation of another state against an action for the same demand brought in such state in the following cases: De Laplaine v. Crowninshield, 7 Fed. Cas. 387, No. 3756; Conrad v. Buck, 21 W. Va. 404; Northern Pacific Lumber Co. v. Lang, 28 Or. 246, 42 Pac. 799. The statutes of limitation of the various states have no extra judicial effect, and apply only to actions commenced within the state. To express it differently, in determining whether the statute of limitations has run, the law of the forum is the applicable law. Sections 182 and 183, Comp. Stat. 1921, prescribing the period within which civil actions shall be commenced, refer only to the commencement of actions within this state, and section 187, Comp. Stat. 1921, prescribes how such actions shall be deemed commenced. Then section 190, Comp. Stat. 1921, provides:

“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”

[1] This section refers to actions which have been commenced within this state as provided by section 187, supra, and it is essential that an action should have been commenced within due time within this state, and that the action should have failed otherwise than upon its merits. When these conditions have been met, a new action may be brought within one year after the failure, but the statute has no application to actions which may have been commenced within other states and have failed otherwise than upon the merits.

The plaintiff contends that the cause of action is not barred by the statute of limitations because subdivision 2 of $185, Comp. Stat. 1921, which authorizes an action upon a contract, express or implied, not in writing, to be brought within three years, is the applicable statute, instead of subdivision 3 of section 185, Comp. Stat. 1921, which provides that actions for injuries to the rights of another not arising on contract shall be brought within two years.

Plaintiff in her petition alleged that the defendant was operating a railroad as a common carrier for passengers for hire, and that the plaintiff was a passenger on one of defendants' passenger trains, and as such passenger paid her fare and was entitled to transportation over said road to her place of destination; that it was the duty of the defendants to well and safely carry and transport plaintiff and deposit her in safety at her destination, but that the defendants, in violation of their contract with plaintiff as such passenger, failed to carry the plaintiff safely and to deposit her in safety at her destination, but carelessly and negligently conducted themselves so that the car in which the plaintiff was riding was caused to collide with another of defendants' trains, and that, by reason of the collision, the car in which plaintiff was riding was wrecked, and the plaintiff, without fault upon her part, was by said carelessness, negligence, and want of care of defendants, their agents, servants, and employees, in charge of said railroad trains, seriously and permanently injured; that said collision and the wrecking of said train and coach in which plaintiff was riding and plaintiff's injuries were caused by reason of the carelessness and negligence of the defendants, their agents, servants, and employees, and by reason of the injuries, and as a direct result of the negligence and carelessness of the defend

ants, the plaintiff was damaged in the sum of $25,000.

[2] It is plaintiff's contention that she had a choice of remedies, and that she might sue either on the contract for transportation or in tort for the breach of duty imposed by law, and that the petition filed in this case, construed as a whole, showns that the cause of action was for a breach of contract of transportation, and not for damages for tort. It appears very clear to us that the petition of the plaintiff states a cause of action for tort, and not for breach of contract of transportation, and, further, that the case was tried on that theory before the trial court. The contract of transportation was mentioned in the petition, but simply as an inducement for the action, and as showing that the plaintiff was rightfully upon a train at the time of the injury; but the action itself and the damages which plaintiff sought to recover were based not upon breach of contract of transportation, but upon the negligent disregard of the duty which the defendants owed to the plaintiff. In Ft. Smith & Western R. Co. v. Ford, 34 Okl. 575, 126 Pac. 745, 41 L. R. A. (N. S.) 745, the court said:

“The character of an action as to whether it is ex delicto or ex contractu must be determined by the nature of the grievance, rather than the form of the petition, and, in a suit against a common carrier for a breach of duty in failing to put a passenger off at the proper station, the courts are inclined to consider the action as founded in tort, unless a special contract very clearly appears to be made the gravamen of the complaint.”

In the body of the opinion, the court said:

“Hence, when the facts are plainly and distinctly stated, the action will be regarded as either in tort or contract, having regard, first, to the character of the remedy such facts indicate, and, second, to the most complete and ample redress which upon the facts stated the law affords.”

In the instant case the character of the remedy clearly indicates the intention of the pleader to recover for the tort, and a more complete and ample redress upon the facts stated is afforded by the law in an action for damages for tort, because, under the provisions of section 5976, Comp. Stat. 1921, in an action for breach of contract, no damages can be recovered which are not clearly ascertainable in both their nature and origin, whereas, under section 5996, Comp. Stat. 1921, in an action for breach of obligation not arising from contract, the plaintiff is entitled to recover such amount as will compensate for all detriment proximately caused by the breach; and the last section does not contain the limitation that the damages must be clearly ascertainable in both their nature and origin. The courts have uniformly held petitions similar to the one under consideration here to state an action on tort, and not an action on contract, and it is not necessary to refer to any considerable number of these cases. The rule applied in determining the character of the petition is well stated in the following cases: Canaday v. St. L. U. R. Co., 134 Mo. App. 282, 114 S. W. 88; P. C. C. & St. L. Ry. Co. v. Higgs, 165 Ind. 694, 76 N. E. 299, 4 L. R. A. (N. S.) 1081; Basler v. Sacramento, etc., Ry. Co., 166 Cal. 33, 134 Pac. 993; Harding v. Liberty Hospital Corp., 177 Cal. 520, 171 Pac. 98; Atlantic & Pacific R. Co. v. Laird, 164 U. S. 393, 17 Sup. Ct. 120, 41 L. Ed. 485. We are of the opinion that the cause of action stated in plaintiff's petition was for a breach of obligation not arising from Contract, and subdivision 3, § 185, Comp. Stat. 1921, limits the time within which the action can be brought to two years. For the reasons stated, the judgment Of the trial court is affirmed.

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of the refusal of the defendant in error to pay certain checks drawn by the plaintiff in error on a deposit which he alleged he had with defendant in error. The parties will hereinafter be referred to as plaintiff and defendant as they appeared in the trial court. The defendant in its answer alleged that the plaintiff did not have sufficient funds on deposit to meet the checks which were refused payment by it, and alleged that on February 28 and March 8, 1917, the plaintiff was indebted to it on a promissory note and that on said dates the plaintiff was insolvent and that the defendant, on February 28, 1917, applied $250 of the funds on deposit for plaintiff in the defendant bank as a payment upon plaintiff's note, and March 8, 1917, took the sum of $296 of the fund on deposit for plaintiff and applied it to plaintiff's note and after these amounts were deducted the plaintiff did not have sufficient funds on deposit to meet the checks which were drawn and which were refused payment. After hearing the evidence of the plaintiff, the trial court sustained a demurrer to plaintiff's evidence, and judgment was rendered for the defendant, from which plaintiff has appealed. [1] The real question at issue between the parties is whether the plaintiff was insolvent at the time the bank applied the funds which were on deposit on plaintiff's note to the bank. It was admitted by the plaintiff that he was unable to pay his debts as they became due in the usual course of business, but he contends that at all times his assets greatly exceeded his liability, and hence he was not insolvent. Numerous authorities are cited by the plaintiff tending to support his contention, but it is sufficient to say that the great weight of authority is to the effect that a trader is insolvent when he is not in condition to pay his debts in the ordinary course of business as persons carrying on trade usually do, and this court has accepted that definition in the case of Oklahoma Moline Plow Co. v. Smith, 41 Okl. 498, 139 Pac. 285, using the following language:

“Independent of statute, it may generally be said that insolvency, when applied to a person, firm, or corporation engaged in trade, means inability to pay debts as they become due in the usual course of business.”

The plaintiff contends that the opinion in the above case is based upon sections 4068 and 7440, Comp. Stat. 1921, and that those statutes deal with specific subjects and should not be interpreted so as to apply to the facts as they exist in the case at bar. While those statutes were quoted in the above opinion, the court said:

“There may be room for serious doubt that either of the foregoing statutory definitions of insolvency applies in the instant case, on account of their apparent express limitations to

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the purposes of the particular act in which found,”

—and then proceeds to accept the general definition of insolvency as above set out. It , is our opinion that this definition, as applied

to the facts in the instant case, is correct and is supported by the weight of authority,

[2] It is next contended that the bank had no right to apply the deposit to the payment of notes which were not at the time due. The equitable right of offset by a bank against deposits made with it by an insolvent where the insolvent's debt to the bank is not due is generally recognized and permitted. Kentucky Flour Co.'s Assignee v. Merchants' National Bank, 90 Ky. 225, 13 S. W. 910, 9 L. R. A, 108: Nashville Trust Co. v. Fourth National Bank, 91 Tenn. 336, 18 S. W. 822, 15 L. R. A. 710; Owens v. American National Bank of Austin, 36 Tex. Civ. App. 490, 81 S. W. 988; Wunderlich v. Merchant's National Bank, 109 Minn. 468, 124 N. W. 223, 27 L. R. A. (N. S.) S11, 134 Am. St. Rep. 788, 18 Ann. Cas. 212; Hayden v. Citizens' Bank of Baltimore, 120 Md. 163, 87 Atl. 672, 46 L. R. A. (N. S.) 1059, Ann, Cas. 1915A, 686.

Numerous errors are assigned, because of the refusal of the court to admit certain evidence; but, in view of our holding in regard to the above proposition, the error, if any committed, in refusing to admit the testimony offered, did not affect the substantial rights of the plaintiff, and the case will not be reversed on that account.

The judgment of the trial court is affirmed.

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held not to confer absolute right, without regard to state law. The act of Congress of April 26, 1906, entitled “An act to provide for the final disposition of the affairs of the Five Civilized Tribes in the Indian Territory, and for other purposes,” provides in section 23: “Every person of lawful age and sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein; provided, that no will of a full-blood Indian * * * shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such fullblood Indian, unless acknowledged before and approved by a judge of the United States Court

for the Indian Territory, or a United States commissioner.” This provision of the act of Congress had for its purpose the further removal of restrictions from citizens of the Five Civilized Tribes of Indians, and was not intended by Congress as conferring an absolute right of disposition of his property without regard to the law of the state where the property is located.

2. Wills 3-1 (—Law controlling disposition of property by will held applicable to Indian citizens. Section 8341, Rev. Laws 1910, provides: “Every estate and interest in real or personal property to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will: Provided, that no marriage contract in writing has been entered into between the parties; no man while married shall bequeath more than two-thirds of his property away from his wife, nor shall any woman while married bequeath more than two-thirds of her property away from her husband: Provided, further, that no person who is prevented by law from alienating, conveying or encumbering real property while living shall be allowed to bequeath same by will.” Held, this provision is applicable to Indian citizens, as well as other citizens of the state.

3. Sufficiency of evidence. Record examined, and held, that the testatrix, Patsy Poff, could not convey her real estate allotted to her as a citizen of the Choctaw Nation by will executed in 1916, free the provisions of section 8341, Rev. Laws 1910. Cochran, J., dissenting.

Appeal from District Court, Garvin County; W. L. Eagleton, Judge.

Action by W. R. Wallace against James H. Blundell, executor of the last will and testament of Patsy Poff, deceased, and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Bond, Melton & Melton, of Chickasha, for plaintiffs in error.

Blanton, Osborn & Curtis and W. L. Farmer, all of Pauls Valley, for defendant in error.

BRANSON, J. This appeal is prosecuted to reverse a judgment obtained by the defendant in error against the plaintiffs in error in the district court of Garvin county, Okl. The parties are referred to herein as they appeared in the lower court. The facts Controlling the determination of the issues raised by the pleadings were stipulated, and were in substance: That Patsy Poff was a member of the Choctaw tribe of Indians of one-half degree of blood, and that she was allotted the land in question, to wit, the homestead, and 10 acres of the surplus allotment, as a citizen of the Choctaw Nation, and died seized thereof, on the 7th day of August, 1916, a resident of Garvin county. That the said Patsy Poff left surviving her husband, David H. Poff, and that prior to her death,

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