A decree in an action of divorce between the same parties for the same cause of action precludes a re-examination of the same facts on the same charge in a subsequent case. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 554-558; Dec. Dig. § 171.*] persons, their names being to her unknown, which acts had not been condoned by her. On July 5, 1911, said defendant filed his answer, denying the allegations of the plaintiff's petition, except as specifically admitted. He admitted the marriage and separation as alleged. He also averred that shortly after the plaintiff and defendant were married the plaintiff called the defendant vile names, and began a continuous course of abuse against him, and that on March 22, 1910, she abandoned him without any cause. Afterwards, to wit, on July 18, 1911, said de 2. DIVORCE (§ 171*)—PLEADING AND PROOF-fendant filed an amended answer adding as VALIDITY OF DECREE. Where the petition states two separate causes of action for divorce, to wit, (1) extreme cruelty and (2) gross neglect of duty, and the court finds that both grounds are sustained by the plaintiff's evidence, although the plea of res adjudicata should be sustained as to former ground, the finding of the court as to the latter ground is sufficient to sustain the decree awarding the divorce. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 554-558; Dec. Dig. § 171.*] - NONSUPPORT 3. DIVORCE (§ 32*). GROUNDS [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 97-102; Dec. Dig. § 32.*] Error from District Court, Oklahoma County; John J. Carney, Judge. Action by Minnie Lee against O. D. Lee and another. Judgment for plaintiff, and defendants bring error. Affirmed. Warren K. Snyder and Jenkins & Jenkins, all of Oklahoma City, for plaintiffs in error. Giddings & Giddings, of Oklahoma City, for defendant in error. an additional defense a plea of res adjudicata, wherein he pleaded that said plaintiff on or about March 22, 1910, commenced an action for divorce against said defendant on the same grounds, to wit, for gross neglect of duty and extreme cruelty; that, after a trial a demurrer was sustained to the evidence and judgment rendered in his favor. the issues being identical. [1] A decree in an action of divorce between the same parties for the same cause of action precludes a re-examination of the same facts in a subsequent case. Ford v. Ford, 25 Okl. 785, 108 Pac. 366, 27 L. R. A. (N. S.) 856. Under this authority, the plea of res adjudicata should have been sustained as to the allegation of extreme cruelty, but not as to the charge of gross neglect of duty. [3] As to the latter ground or allegation, the court found that this was sustained by plaintiff's evidence. It is settled by authority that a substantial failure of a husband suitably to provide for his wife's support when he is able to do so is gross neglect of duty entitling the wife to divorce. 14 Cyc. 621, 622, and authorities cited in footnote 9. [2] In addition to this, the plaintiff, in her petition, charged the defendant with adultery. This charge the court found not to be sustained by the evidence. The defendant in his cross-petition asked for a divorce charging the plaintiff with adultery. This the court found not to be sustained by the evidence. The trial court having sustained the ground for divorce on the part of the plaintiff, which charged "gross neglect of duty” in view of the fact that both parties in the pleadings had charged each other with adultery, we do not think under this record that this court on review ought to disturb the order of the lower court granting a divorce. WILLIAMS, J. On June 30, 1911, the defendant in error, Minnie Lee, as plaintiff, commenced an action against the plaintiff in error O. D. Lee, as defendant, for a divorce and alimony, joining A. D. Lee, his father, on account of certain alleged transfers of realty. In her petition it is alleged that the plaintiff and defendant O. D. Lee were married on February 12, 1910, and continued to live together as husband and wife until March 22, 1910; that on said date the defendant was guilty of extreme cruelty, calling her vile names and accusing her of infidelity; that he slapped her and assaulted her, which constituted extreme cruelty; that he was an able-bodied man, capable of earning a good living for himself and plaintiff, but that he refused to support her; that for over one year previous to the beginning of the said action defendant had failed to contribute anything to the support of plaintiff; that said defendant committed acts of infidelity toward plaintiff on or about February 25, 1911, and divers other times with firmed. The question arises now as to the allowance of alimony. The trial court allowed the plaintiff $500 as alimony and $100 as counsel fees. In this the court does not appear to have committed any reversible error. Adams v. Adams, 30 Okl. 327, 120 Pac. 566; Ecker v. Ecker, 22 Okl. 873, 98 Pac. 918, 20 L. R. A. (N. S.) 421; Pauly v. Pauly, 14 Okl. 1, 76 Pac. 148. The judgment of the lower court is af- (38 Okl. 291) November, 1908. She alleged full performOKLAHOMA FIRE INS. CO. v. WAGES- ance of all the conditions of the policy, including the payment of premium, and that TER. (Supreme Court of Oklahoma. June 10, 1913.) she was at all times the owner of the goods (Syllabus by the Court.) 1. PARTNERSHIP (8 64*)-FICTITIOUS NAMES FILING CERTIFICATE OF NAMES OF PART NERS. Sections 5023 and 5025, Comp. Laws, 1909, do not apply to an individual who does business under a fictitious or trade name. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 87-91; Dec. Dig. § 64.*] 2. INSURANCE (8 559*)-PROOF OF LossWAIVER BY INSURER. covered by the policy, except she alleges that she did not, within 60 days after the date of the loss, file with the company proof of loss as required by a provision of the policy. As an excuse for such failure, she alleges that defendant waived that requirement of the policy by shortly after the fire and at all times since said time denying liability under the policy. Defendant, by its answer, alleges failure of plaintiff to furnish proof A provision of a fire insurance policy, re- of loss as required by the contract of insurquiring proof of loss to be furnished the com- ance, and further alleges that the action canpany within 60 days from the date of the fire, not be maintained, because the same was not is waived by the company by denying within said time liability under the policy upon other instituted within six months after the date grounds than failure to furnish proof of loss. of the fire, as is required by a provision of [Ed. Note. For other cases, see Insurance, the policy; and also alleges that it has nevCent. Dig. 1391, 1392; Dec. Dig. 559.*] er waived any of its rights under the poli3. INSURANCE (§ 622*)-ACTION ON POLICY-cy. Other allegations are made in the anSTIPULATIONS AS TO TIME OF BRINGING Swer, but it is unnecessary to set them out. SUIT. The provision of a fire insurance policy, providing that no suit or action on the policy shall be sustainable unless commenced not later than six months next after the loss or damage occurs, is rendered void by section 1128, Comp. Laws 1909. Plaintiff, by supplemental reply, alleges: First, that the action was brought within six months after the expiration of the 60 days fixed by the policy for furnishing proof of loss; and, second, that if the policy requires the action to be begun within six months [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1540, 1544-1550; Dec. Dig. from the date of the fire, defendant has 622.*] (Additional Syllabus by Editorial Staff.) 4. PLEADING (§ 7*) — MATTERS OF PRESUMPTION-COMPLIANCE WITH LAW. In an action by a partnership, an allegation of compliance with Comp. Laws 1909, §§ 5023, 5025, requiring the filing of a certificate of the names of the partners where a fictitious name or designation is used, is not required, as it is presumed that the law has been complied with. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 11; Dec. Dig. § 7.*] Error from District Court, Muskogee County; John H. King, Judge. Action by Juliza Wagester, doing business as Wagester Sisters, against the Oklahoma Fire Insurance Company. From a judgment for plaintiff, defendant brings error. Affirmed. Brook & Brook, of Muskogee, for plaintiff in error. Murphey & Noffsinger, of Muskogee, for defendant in error. waived this provision of the policy, and is now estopped from relying upon same. The trial in the court below was to a jury, and resulted in a verdict and judgment for plaintiff in the sum sued for. It has been with much difficulty that we have been able to ascertain from the briefs of counsel for defendant just what propositions it relies upon for reversal of the cause, or what propositions relied upon are duly presented by the record. Several different assignments of error, presenting different questions of law, have been urged under one proposition. The first assignment of error urged complains of the action of the court in overruling a demurrer to plaintiff's petition; but an examination of the record discloses that the demurrer was withdrawn by the defendant, without ever having been ruled upon. The second assignment of error complains of the overruling of a motion to make the petition more definite and certain; but the record fails to disclose that this motion was ever acted upon. The brief contains other inaccuracies which have hindered the court in considering the cause. HAYES, C. J. This action was brought in the court below by Juliza Wagester, doing business under the style and firm name of Wagester Sisters, to recover on a policy of [1] It is insisted by counsel that plaintiff insurance, which she alleges was executed cannot maintain the action, for the reason and delivered to her under said firm name that she does not allege in her petition that by plaintiff in error, hereinafter referred to she had complied with the law by filing the as defendant, on the 23d day of September, certificate and making the publication requir1908. The policy of insurance was for the ed by sections 5023 and 5025, Comp. Laws sum of $500, and insured against loss by fire 1909. The foregoing statutes require every a stock of merchandise located in the city of partnership transacting business in the state Muskogee. She alleged that the property in- under fictitious names or a designation not sured was partially destroyed and the re- showing the names of the persons interested mainder damaged by fire on the 6th day of in such business, to file with the clerk of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes low. the district court in the county in which its, and to decide which line this court will folprincipal place of business is situated a certificate, stating the names of the persons [3] There is also evidence to support a constituting the partnership, their places of waiver of this provision; but the defense residence, and to publish the certificate for cannot be maintained for a greater reason. a period of four successive weeks. Failure By section 1128, Comp. Laws 1909, every stipto file the certificate and make the publica-ulation or condition in a contract by which tion as required renders the persons doing a party limits the time within which he may business under such partnership unable to enforce his rights by legal proceedings is maintain any action on any contract or trans- made void. The above-cited statute was in action of the partnership, until such certifi- force at the time of the execution of the polcate is filed and published as required. icy of insurance here involved, and therefore renders the provision of the policy now under consideration invalid. Gray v. Reliable Insurance Co., 26 Okl. 593, 110 Pac. 728. The other contentions presented for reversal are either based upon alleged errors that have not been presented with sufficient compliance with the rules of this court to be entitled to consideration, or are so manifestly without merit as not to require discussion. The judgment of the trial court is affirmed. All the Justices concur. (37 Okl. 545) [4] Allegation of compliance with the requirements of this statute in his petition is not required of a plaintiff partnership in order to state a cause of action, for the presumption is that the law has been complied with. Swope & Son v. Burnham, Hanna, Munger & Co., 6 Okl. 736, 52 Pac. 924. Failure to comply with this statute was not alleged in the answer; but evidence was introduced or facts admitted which show that plaintiff never filed any such certificate. Assuming without deciding that such issue may be raised in this manner, we think the contention is without merit, for the reason that the statute has no application to the facts of this case. There is no partnership involved in this case; plaintiff was doing business alone; under a firm name, it is true, but there is absence of any evidence that any 1. CARRIERS (§ 304*)-INJURY TO PERSON ACCOMPANYING PASSENGER-LIABILITY. one shared with her, either in the profits or One who goes upon a train to render asthe liabilities of the business. There is noth-sistance to a passenger, in conformity with a ing in the statute that requires a person who does business alone under a fictitious or trade name to file the certificate and make the publication. The requirement applies only to partnerships. The provisions prohibiting the maintaining of an action without filing the certificate is: "All persons doing business as a partnership contrary to the provisions of this article. * [2] The evidence establishes that no proof of loss was furnished the company within the 60 days prescribed by the policy; but there is evidence also to establish that the company, acting through its general adjuster within a few days after the fire before the expiration of the 60 days for the proof of loss to be furnished, denied all liability under the policy upon other grounds than failure to furnish proof of loss. Such a denial of liability constitutes, under almost all the authorities, a waiver of the requirement to give notice or furnish proof of loss. 4 Cooley's Briefs on Law of Ins. p. 3531. The policy provides that no suit or action on the policy shall be sustainable "unless commenced not later than six months next after the loss or damage occurs." Plaintiff's first contention in response to this defense is that the six months did not begin to run until the expiration of 60 days within which to make proof of loss. Respectable authorities may be found upon both sides of this question; but it is not necessary to review them ST. LOUIS & S. F. R. CO. v. LEE. (Supreme Court of Oklahoma. June 11, 1913.) (Syllabus by the Court.) practice approved or acquiesced in by the carrier, has a right to render the needed assistance and leave the train; and the carrier, in permitting him to enter with knowledge of his purpose, is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor. If he is injured by reason of the sudden starting of the train or the omission to give the customary signals, the carrier will be liable. [Ed. Note. For other cases, see Carriers, Dec. Dig. § 304.*] Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; 2. CARRIERS (§§ 287, 303*) - BOARDING AND ALIGHTING PASSENGERS-DUTY OF CARRIER. As a general rule it is not the duty of a carrier to station an employé at the entrance of a car for the purpose of assisting passengers off and on; the carrier is, however, required to announce the station as the train arrives, to stop the car at the platform, to hold the train a reasonable length of time to enable all persons using reasonable diligence to enter or depart, to furnish a safe and convenient mode of entering or leaving the train, and to give the usual and customary signals before starting the train. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1154-1159, 1161-1166, 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. §§ 287, 303.*] 3. CARRIERS (§ 303*) - DUTY TO ALIGHTING PASSENGERS. It is not the general duty of a carrier to assist a passenger to alight from a train, unless some special circumstance imposes such But in the case of a sick, old, or induty. firm passenger, or one making request for assistance, it undoubtedly is the duty of the company to assist them, and in cases where by the use of ordinary care the conductor, or other employé, sees that such help is needed, it | and that therefore he could not notify them, becomes the duty of the company to furnish such assistance. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.*] 4. NEGLIGENCE (§ 1*)-"ACTIONABLE NEGLIGENCE"-ELEMENTS. In every case involving actionable negligence there must be a duty on the part of defendant, a failure to perform that duty, and an injury or damage resulting by reason of such failure. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 1, pp. 148, 149; vol. 8, p. 7563.] Commissioners' Opinion, Division No. 1. Error from District Court, McCurtain County; T. G. Carr, Special Judge. Action by W. T. Lee against the St. Louis & San Francisco Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed. W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt and E. H. Foster, both of Oklahoma City, for plaintiff in error. Stewart & McDonald, of Hugo, and Nelson & Steel, of Idabel, for defendant in error. or any of them, of his intention to alight after finding a seat for Mrs. Cabbler, and contends that the train made a shorter stop that day than it ordinarily did, and that it started without notice to him and before he could get off. The testimony on this point is conflicting. [1] The only question in this case is: Did the company, in the absence of knowledge of Mr. Lee's intent to leave the train, owe him the duty of holding the train until he had an opportunity to alight? This question is practically disposed of by the case of Midland Valley R. Co. v. Bailey, 124 Pac. 987. In that case plaintiff's daughter was sick and was taken to defendant's train by a physician and one or two others, for the purpose of being carried as a passenger. The physician notified the conductor that he had a sick patient whom he desired to put on the train and asked for time to put her on the car. The physician was intending to remain on the train in order to accompany the patient and said nothing to the conductor about getting off the train; plaintiff also went aboard the train. After the usual business had been transacted the train started, and plaintiff, after the train had gone a short distance, stepped off, fell, and was injured. She sued the company and recov ered a judgment. On appeal the case was reversed on the ground that the company owed her no duty in the absence of notice that she intended to alight. In the body of that opinion it is said: "The principal question in the case is whether or not the conductor of a train who is not informed that a person assisting a sick passenger desires to leave the train after the passenger has been seated, and who does not know that such person desires to leave the train, is bound to ascertain that fact before starting his train. To state the question is practically to answer it. In this case the petition did ROBERTSON, C. On July 28, 1908, the plaintiff below, W. T. Lee, accompanied his mother-in-law, Mrs. A. C. Cabbler, an aged and infirm lady, to defendant's depot at Haworth, Okl., for the purpose of assisting her to take the train to Hugo, Okl.; he purchased her ticket and, when the train arrived, assisted her in entering the car and entered thereon himself, carrying two pieces of hand baggage. After having secured a seat for Mrs. Cabbler and deposited her baggage, he started to leave the train, which by that time had started; he claims that as he was in the act of getting off the train some person was attempting to get on and struck his foot and caused him to fall headlong on the platform, whereby he was seriously and permanently not allege that the defendant company had injured. The conductor testified positively any knowledge that it was the purpose of the that he, as was his usual custom, stood by plaintiff to leave the train. It did not althe steps of the car and assisted passengers lege that there were any facts or circumoff and on; that he had no knowledge of stances which charged the defendant with plaintiff's intentions to get off the train, but notice that it was her intention to leave the supposed he was a regular passenger. In his train, and the evidence was in perfect haroriginal petition plaintiff alleges "that the mony with the petition; there being no evidefendant expressly agreed and promised dence of any kind whatsoever tending to that it would stop its locomotive engine and show such knowledge on the part of the decars at said station a sufficient length of fendant company, or any circumstances tendtime, not only to permit the said Mrs. Cabbler ing to charge the company with notice. A to be assisted aboard the said cars by the demurrer was filed to the petition, which was plaintiff, but also a sufficient time for plain- overruled. Objection to the introduction of tiff to leave the cars in safety." There being evidence was made and overruled. A demura failure of proof on this issue, the trial rer to the plaintiff's evidence was interposed court, over the objections of defendant, per- and overruled, and a request for a perempmitted plaintiff, after he had rested his case, tory instruction was presented and denied, to amend his petition so as to charge that so that the point was saved at every step none of the defendant's employés or agents in the proceeding. There is no controversy were present at the time he entered the car, but that it is the duty of a railroad company •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 132 P.-68 to stop at stations a sufficient length of time | sudden starting of the train or the omission to permit reasonably careful persons to leave to give the customary signals, the carrier will and enter the train and transact their busi; be liable.' This rule is supported by numerness with the company. If the railroad com- ous authorities, amongst which are the folpany receives sick passengers, it is its duty lowing, to which our attention is called by to stop a sufficient length of time to enable the plaintiff in error: Little Rock & F. S. these passengers, in the exercise of reasonable Ry. Co. v. Lawton, 55 Ark. 428, 18 S. W. 543, care, to enter the train. If persons not in- 15 L. R. A. 434, 29 Am. St. Rep. 48; Seatending to become passengers desire to assist board Airline Ry. v. Bradley, 125 Ga. 193, 54 sick persons to enter the train, they have S. E. 69, 114 Am. St. Rep. 196; Hill v. Louisthe right to do so; but, if they desire special ville & N. R. Co., 124 Ga. 243, 52 S. E. 651, service on account of their intention to leave 3 L. R. A. (N. S.) 432; Atlantic & B. R. Co. the train after seating the patient, it is only v. Owens, 123 Ga. 393, 51 S. E. 404; Coleman fair that they should notify the railroad com- v. Georgia R. & B. Co., 84 Ga. 1, 10 S. E. pany of this desire. The conductor cannot be 498; Cole's Adm'r v. Chesapeake (Ky.) 113 expected to enter his train and inquire of S. W. 822; Berry v. Louisville & N. R. Co., persons whether they desire to get off; but, 109 Ky. 727, 60 S. W. 699; Lucas v. New when reasonable time has been given and the Bedford, 6 Gray (Mass.) 64, 66 Am. Dec. 406; platform is clear, he has a right to start the Flaherty v. Boston & M. R. R., 186 Mass. 567, train, and, as the plaintiff in this case had 72 N. E. 66; Saxton v. Missouri Pac. R. Co., not given the conductor or any other employé 98 Mo. App. 494, 72 S. W. 717; Yarnell v. of the defendant any notice of her intention K. C., Ft. S. & M. Ry., 113 Mo. 570, 21 S. W. to leave the train after seating her daughter, 1, 18 L. R. A. 599; Dunne v. New York, 99 it was not the duty of the defendant to hold App. Div. 571, 91 N. Y. Supp. 145; Izlar v. the train indefinitely or make special inquiry Manchester & A. R. Co., 57 S. C. 332, 35 S. E. concerning her plans. The doctor did speak 583; Oxsher v. Houston, E. & W. T. R. Co., about putting his patient on the train, but 29 Tex. Civ. App. 420, 67 S. W. 550; Bullock said nothing about wanting time to get off, v. Houston, E. & W. Ry. Co. (Tex. Civ. App.) and, in fact, did not get off, as it was his 55 S. W. 184; International & G. N. R. Co. v. purpose to, and he did become a passenger, Satterwhite, 15 Tex. Civ. App. 102, 38 S. W. going with the patient to her destination. It 401; Dillingham v. Pierce (Tex. Civ. App.) 31 would have been entirely convenient in that S. W. 203; Griswold v. Chicago & N. W. Ry. same conversation to have cautioned the Co., 64 Wis. 652, 26 N. W. 101; Chesapeake conductor that the plaintiff desired to leave & O. R. Co. v. Paris, 107 Va. 408, 59 S. E. the train, but he did not do so, and therefore 398. The only case cited by the plaintiff no special duty devolved upon the defendant which in any way conflicts with this general to do more than give reasonable time for rule is Louisville & N. R. R. Co. v. Crunk, 119 reasonable people to enter the train with the Ind. 542, 21 N. E. 31, 12 Am. St. Rep. 443; patient. These principles are so simple and but this case appears never to have been folseem so clear and just that it is not surpris- lowed in the state of Indiana, and it has ing that the authorities are in substantial been expressly criticised in the case of Little harmony in laying down the rule. In Hutch- Rock v. Lawton, supra, by the annotator of inson on Carriers (3d Ed.) § 991, the rule is the American State Reports at page 55 of 29 stated as follows: 'A person who comes to a Am. St. Rep., in connection with the report of railroad station to assist passengers in enter- Little Rock v. Lawton; by the Supreme ing or leaving the train, though not a passen- Court of Texas in Houston, etc., R. Co. v. ger, is not a trespasser, as he comes with at Phillio, 96 Tex. 18, 69 S. W. 994, 59 L. R. A. least the tacit invitation of the carrier. 392, 97 Am. St. Rep. 868; and Indiana itself While so engaged, he does not stand in the apparently criticises the rule therein laid relation to the carrier of a bare licensee, but down in the case of Louisville & N. R. Co. v. is deemed to have been invited to be there by Espenscheid, 17 Ind. App. 558, 47 N. E. 186. virtue of the relation existing between the Other authorities supporting the rule we ancarrier and the intending or arriving passen- nounce are collected in notes in 15 L. R. A. ger. The carrier therefore owes to him the 434, and 3 L. R. A. (N. S.) 433." duty of exercising at least ordinary care to see that he is not injured by reason of defective stational facilities or approaches thereto. So one who goes upon a train to render necessary assistance to a passenger, in conformity with a practice approved or acquiesced in by the carrier, has a right to render the needed assistance and leave the train; and the carrier, in permitting him to enter with knowledge of his purpose, is presumed to agree that he may execute it, and is bound to hold the train a reasonable time In 2 Hutchinson on Carriers, § 991, it is said: "But the duty of the carrier in this respect is dependent upon the knowledge of such person's purpose by those in charge of the train, for without such knowledge they may reasonably conclude that he entered to become a passenger, and cause the train to be moved after giving him a reasonable time to get aboard. He should, accordingly, notify some one in the management of the train of his presence, business, or purpose, so as to create some relation to the carrier and thus |