also, Bowman v. Bilby, 24 Okl. 735, 104 Pac. J nicipal authority, to change the grade of the 1078; Lynn v. Jackson, 26 Okl. 852, 110 Pac. street." 727. The only question to determine, then, is whether or not the power existed prior to statehood under any law in force at the time of the admission of the state into the Union. Section 847, Comp. L. 1909, provides that the board of trustees for all cities, towns, and villages shall have the following * (9) To lay out,

open, grade and otherwise improve the (Supreme Court of Oklahoma. Jan. 21, 1913.

The exact question was not before the court in the case of Edwards v. Thrash, 26 ROSSER, C. This is an action by J. A. Okl. 472, 109 Pac. 832, 138 Am. St. Rep. 975, Jester against the Etna Insurance Company, but the general question as to the power of brought on a fire insurance policy to recover trustees of an incorporated town or village for the loss of certain property by fire. The was before the court in that case, and was policy sued on contained the usual appraisconsidered by the court. The first paragraph al clause, which provided, in substance, that, of the syllabus is as follows: "The trustees if disagreement arose between the insured of an incorporated town or village organized and the company with reference to the loss, under the laws of Oklahoma Territory as ex- it should be determined by appraisers, after tended in force in the state after its erec-appraisement, ascertainment, estimate, and tion, are authorized and empowered to lay satisfactory proof of loss had been received out, open, grade, and otherwise improve the streets, alleys, sewers, sidewalks, and crossings therein, and to keep them in repair, and to vacate the same. (a) Such trustees are authorized, in the exercise of such mu

umpire; that the appraisers should then | could not be present while they were apestimate and appraise the loss, stating sepa- praising the property. The plaintiff asked if rately sound value and damage, and, failing to agree, should submit their differences to the umpire; and that an award in writing of any two should determine the amount of such loss.

he would not be allowed the privilege of explaining his books, papers, and figures, and Mr. Bruce told him that he would not. He opened his safe, got out his books, papers, and records, and was making some explanation with reference to them when the company's adjuster came in, and he told the adjuster that he was explaining his books to the appraisers, and the adjuster told him that he would not be allowed to do that; that neither plaintiff nor the adjuster were al

that he requested the plaintiff to retire, but claimed to have had all the necessary information before he did so. He also denied any recollection of the adjuster having been present and requesting the plaintiff to retire. On the same day the plaintiff employed counsel and notified Mr. Bruce, the company's appraiser, to come to the office of his counsel, and there plaintiff and his counsel both requested that the appraisal be reopened and that they be permitted to introduce evidence, but they were refused permission to do so. It was the duty of the appraisers to hear evidence.

There was a disagreement and an appraisal was demanded and agreed to. The appraisers were appointed and made their award. The plaintiff attacked the award upon various grounds. He alleged that the appraiser selected by the company was not a competent and disinterested appraiser, as re-lowed to be present. Mr. Bruce admitted quired by the terms of the policy, but that, on the contrary, he was a partisan of the company, a special friend and neighbor of the company's adjuster, E. B. Roberts, and that by reason of his intimate friendship with the adjuster was biased and prejudiced in favor of the company and against the plaintiff; that these facts were unknown to the plaintiff at the time of the selection of the appraiser by the company, and up to and including the time when the award was made; that the appraisers failed and refused to estimate and appraise the loss, stating separately sound value and damage of each article damaged, but made their award in gross, over In Mason v. Fire Ins. Assoc. of Philadelplaintiff's protest; that the appraisers failed phia, 23 S. D. 431, 122 N. W. 423, in which and refused to make any award for such por- a similar question is involved, the court tions of the property as were totally destroy- said: "While appraisers appointed under the ed by fire, and failed and refused to permit terms of an insurance policy may not be replaintiff to offer evidence as to the amount quired to proceed with that strictness reof the property which was totally destroyed quired in common-law arbitration, they are by fire; that the award was grossly inade- still required to act with impartiality and to quate; that the appraisers, at the request of hear evidence and investigate the claims of the company's adjuster, refused plaintiff an the plaintiff, and to arrive at a reasonable, opportunity to offer material evidence as to just, and fair conclusion, after hearing such his loss and damage, and refused to hear ev-evidence as to the rights of the respective idence that was duly and legally presented to parties. * * Under our standard polthe appraisers, and, over plaintiff's protest, icy, the appointment of appraisers being commade their award without hearing any evi-pulsory, it is highly important that the men sedence whatsoever. Other grounds were al- lected should in every sense be disinterested, leged, but it will not be necessary to refer and that the parties who are thus compelled to them. to submit the question as to the amount of The court instructed the jury, among oth- the loss or damage to such appraisers should er things, that if they found from the evi- have an opportunity to be fully heard before dence that the plaintiff was not given a them, and to submit such proofs as may be reasonable opportunity to present his evi- necessary to support their respective claims. dence of loss at any time before the apprais- While possibly the appraisers may not be ers completed their work, and that they ar- bound to adhere to the strict rules required bitrarily excused him from their presence and by a court, they should nevertheless be rerefused to hear him and to consider. such ev-quired to give the parties a reasonable and idence of his loss as he desired to make fair opportunity to submit the evidence that proof of, then the arbitration and award may be deemed necessary by them in support would be invalid, and that they should not of their respective claims affecting the consider it. The evidence upon this point amount of the loss and damage." (Italics showed that, after the appraisers were ap- by this court.) The facts of the case upon pointed, they went to Cordell, where, the which this quotation is taken are very similoss occurred, and that they spent one day lar to the case at bar, so far as a refusal to in arranging the salvage, and that the plain- hear evidence is concerned. See, also, Cantiff was with them assisting them during field v. Watertown Fire Ins. Co., 55 Wis. that time. According to the testimony of 419, 13 N. W. 252; Harth Bros. Grain Co. the plaintiff, when they met again the next v. Continental Fire Ins. Co. (Ky.) 102 S. W. morning, Mr. Bruce, one of the appraisers, 242; Stout v. Phoenix Ins. Co. of London, 65 told plaintiff that they had decided not to N. J. Eq. 566, 56 Atl. 691; Insurance Co. v. take an investory, and that the plaintiff Payne, 57 Kan. 291, 46 Pac. 315. The pol

icy in use in Minnesota seems to be on a special form for that state. It is held in that jurisdiction that the parties must have full opportunity to introduce their evidence. Christainson Fire Ins. Co. v. Fire Ins. Assoc., 84 Minn. 526, 88 N. W. 16, 87 Am. St. Rep. 379; Schoenich v. American Ins. Co., 109 Minn. 388, 124 N. W. 5.

notice was given him, but it is undisputed
that he told the appraiser appointed
that he did not want anything to do with it.
This arbitrator also testified that he asked
plaintiff to attend the arbitration, but that
the plaintiff refused to do so. This clearly
amounted to a waiver of notice, and au-
thorized the arbitrators to proceed without
plaintiff's presence.
We have left

[1] Where an appraisal has been fairly conducted in accordance with the law and the but one question, and that the alleged misterms of the policy, the finding of the ap- take and misconduct of the arbitrators. praisers is binding upon the parties, and the Claim is made that they refused to hear insured cannot disregard the appraisal and evidence. It is true that they did not take offer independent evidence of the amount of testimony, but they were not selected for his loss. His rights, so far as the extent of that purpose. They were to ascertain and the loss is concerned, are limited by the appraise 'the sound value of, and the loss award of the appraisers. It would seem, upon, the property damaged.' To appraise therefor, that he should have an opportuni- is to estimate value, and we have no doubt ty to make the same proof before the ap- that these arbitrators or appraisers were praisers that he would have if the matter selected to make an appraisement, and not were being litigated in a court of justice, to hear evidence. The men selected by the because the action of the appraisers will parties were experienced contractors and keep him from litigating the question again. | builders, and the terms of the contract clearIt seems clear that he is entitled to intro- ly indicated that an appraisal only was conduce any competent evidence that he may templated. That such an agreement is good, have before the appraisers. From a read- and that no notice to the parties is required ing of the whole record in this case, it seems in such cases, see James v. Schroeder, 61 clear that the appraisers did not fully con- Mich. 28, 27 N. W. 850; Cobb v. Dolphin sider his claims as to portions of the loss. Mfg. Co., 108 N. Y. 463, 15 N. E. 438. We If he had been permitted to testify, they are not to be understood as holding that such could not have overlooked it. arbitrators may not take evidence. All that It is true that there are cases which hold we now decide is that their failure to do so that it is not necessary for the appraisers to under such a state of facts as are here prehear parties, but no case has been found sented will not avoid the award. The testiwhere the appraisal was upheld when the mony leaves no doubt in our minds that appraisers had refused to hear the parties, neither party expected or intended to introor one of them. In the case of Hall v. Nor- duce evidence before arbitrators." It will walk Fire Ins. Co., 57 Conn. 105, 17 Atl. 356, be observed that there is a great difference relied upon by the plaintiff, the appraisal in the facts of that case and this. In that was upheld. One of the grounds urged case only damaged property was to be apagainst the appraisal was that the apprais-praised. In that case there was no request ers refused to hear plaintiff's evidence. The for permission to introduce evidence. In court said: "The plaintiff accompanied the this case there was a demand for permission appraisers during the examination, described to them the rooms, informed them regarding the construction of the building, was freely inquired of by the appraisers respecting matters involved in their examination, [2] The company seems to take the posiand was permitted to give all the informa- tion that, if the award first made was intion which he offered to give. Before the valid, it is entitled to another appraisal. making of their award, the appraisers deni- This position cannot be maintained. The ed plaintiff no opportunity to appear before company asserted the legality of the award them and give any information or evidence and put upon plaintiff the burden of its inrespecting the subject of the appraisal." validity. It thereby waived its right to an In the case of Vincent v. German Insur-appraisement. Am. Fire Ins. Co. of N. Y. ance Co., 120 Iowa, 272, 94 N. W. 458, also relied upon by plaintiff in error, one of the grounds of objection to the award was because Clarke was not notified of the hearing and did not participate in the award. The court said: "With reference to failure to give notice, plaintiff has shown that no

to introduce evidence. The appraisers had something more to do than to look at the property and to appraise the damage. Some of it had been totally destroyed.

v. Bell, 33 Tex. Civ. App. 11, 75 S. W. 319; Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. 855; Coffin v. German Fire Ins. Co.; 142 Mo. App. 295, 126 S. W. 253.

The judgment should be affirmed.

PER CURIAM. Adopted in whole.

It cannot be said that the evidence was not conflicting on this proposition, for, if he told the manager of the lumber company that he was getting the piece of cypress for the Miller Grain Company, that conflicts with the statement of the manager, who states that he said he was getting the piece of lum

Error from District Court, Caddo County; ber on the Miller and Hatcher contract, and F. M. Bailey, Judge.

Action by G. H. Block against George C. Miller and Rufus W. Miller. Judgment for defendants, and plaintiff brings error. Af firmed.

Morris & Starkweather, of Anadarko, for plaintiff in error. H. W. Morgan, of Anadarko, for defendants in error.

WILLIAMS, J. This proceeding in error is to review the action of the trial court where the plaintiff in error, as plaintiff, sought to enforce a materialman's lien upon the property of the defendants in error. The cause was tried to the court without a jury, who rendered judgment adverse to plaintiff.

said to charge it to the Miller and Hatcher contract. This conflict is further accentuated by the fact that the cypress lumber was not used under the Miller and Hatcher contract, but for an improvement made for the Miller Grain Company, which was not covered or contemplated by said contract.

The judgment of the lower court must be affirmed. All the Justices concur.

(37 Okl. 430)

SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. BRIDGES.† (Supreme Court of Oklahoma. April 4, 1913.)

(Syllabus by the Court.)

1. APPEAL AND ERROR (§§ 1097, 1195*)-SEOOND APPEAL-LAW OF CASE.

All questions of law determined in a former appeal become the law of the case, both for the trial court and this court on appeal, in a second hearing, providing the facts presented same as presented at the first hearing. in the second hearing are substantially the

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4427, 46614665; Dec. Dig. 88 1097, 1195.*]

Where a beneficiary in an insurance certifiaside a written settlement of her claim and for cate issued by a fraternal society sues to set judgment on the certificate, on the grounds that such settlement was obtained through the fraudulent misrepresentations of the society's plaintiff's favor by the jury, the verdict will adjuster, and the question is determined in not be set aside, where there is substantial evidence showing that the beneficiary was misled and induced to act in making the settlement, under a misconception of her legal rights under the certificate, through the false and fraudulent representations and statements of the adjuster.

The case turned upon the question as to whether the lien was filed in time. That depended upon whether a certain piece of cypress timber, which was furnished on December 1, 1908, was gotten for the purpose of being used under a certain contract. Upon that there was a sharp conflict in the evidence. One Coomer got this piece of lumber, and under his evidence it was not properly chargeable against the Hatcher contract, which contract was the basis for the enforce-2. APPEAL AND ERROR ($ 1001*)-REVIEW. ment of the lien. He testified as follows: "Q. When you got this lumber, Mr. Coomer, did you not tell the Block Lumber Company you were getting it for the Miller Grain Company? A. Yes, I told him at the time it was for the Miller Grain Company." This evidence had reference to the piece of cypress lumber in question. The evidence offered to support plaintiff's contention is as follows by Fred Bonontscher: "Q. Do you remember about an item sold by the lumber company on the 1st day of December, 1908, the last item here on the Hatcher account? A. Yes, sir. Q. Do you remember what it was? A. It was a piece of cypress. Q. Who sold that? A. I did myself. Q. Who came to get it? A. F. Coomer. Q. Is that the same Coomer that Mr. Miller testified about? A. Yes, sir. Q. Did he tell you what he wanted with that piece of lumber when he came after it? A. Yes, sir. Q. Tell the court what he said about it. A. He came up there and said he wanted a piece of cypress for that Miller and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Rehearing denied May 13, 1913.

[Ed. Note.-For other cases, see Appeal and Dig. 1001.*] Error, Cent. Dig. §§ 3922, 3928-3934; Dec.

Commissioners' Opinion, Division No. 2. Error from District Court, Johnston County; A. T. West, Judge.

Action by Nettie Burris Bridges against the Sovereign Camp of Woodmen of the World. Judgment for plaintiff, and defendant brings error. Affirmed.

See, also, 165 Fed. 342, 91 C. C. A. 328.

N. B. Maxey, J. B. Campbell, and Wm. | defendant being the release and a paragraph O. Beall, all of Muskogee, for plaintiff in er- of the application of the insured upon which ror. Alexander Gullett, of Tishomingo, and the certificate was issued. Therefore, beginW. A. Ledbetter, of Oklahoma City, for de- ning with the premise that the law of the fendant in error. case has been settled in the former opinion, if the facts presented are substantially the same, the limits of our inquiry are reduced to two propositions: