commodation of the general public, and to "The following rule seems to be sustained by facilitate its own business the railroad com- all the authorities: To constitute actionable negpany had erected a depot in said town, and ligence, where the alleged wrong is not willful and intentional, three essential elements are that the cotton oil company had used some necessary: (1) The existence of a duty on the of the trucks of the railroad company for part of the defendant to protect the plaintiff the purpose of loading some cars for ship- from injury; (2) failure of the defendant to perment, and it is alleged that the servants of resulting from such failure."" form that duty; and (3) injury to the plaintiff Chicago, R. I. & the oil company negligently left one of said P. Ry. Co. v. Duran, 38 Okl. 719, 134 Pac. trucks on the depot platform in such close 876; Texas Co. v. Collins, 42 Okl. 374, 141 Pac. proximity to the railroad track that a pass-783; C., R. I. & P. R. Co. v. McIntire, 29 Okl. 797, 119 Pac. 1008. ing train struck the same and knocked it against the plaintiff in error, Victor Thorp, and thereby caused him to suffer the injuries complained of in this cause. He was upon the depot platform without any business of his own, with any of the employés of the company or any one else, but purely for the purpose of playing and was in company with another boy about his age, who was also playing there. The evidence discloses that these two boys were standing on the platform, and the engineer of a passing train saw them and attempted to induce them to move away from the track by motioning his hand to them to move back. They did not do so far enough to avoid injury, as the engine struck the truck and knocked the same against young Thorp. It further appears that a short time before the injury the agent of the company told these boys to go away. The lower court sustained an objection to the introduction of any testimony as against the cotton oil company, and when all the evidence was presented, which was substantially as outlined above, the court directed a verdict in favor of the railroad company. The plaintiffs in error excepted to the rulings of the court and have appealed here. a [5] First. Was the court right in sustaining the objection to the introduction of the evidence as against the cotton oil company for the reason that the petition did not state cause of action against it? Such objections are not favored in law and should not be sustained, unless it is plainly evident that the pleading fails as to some element essential to recovery. Sulsberger & Sons Co. v. Castleberry, 40 Okl. 613, 139 Pac. $37. [1, 2] The only allegation of negligence as contained in the petition is "that on or about December 12th the defendant the cotton oil company, by its agents and servants, in the regular discharge of their duty, negligently and carelessly placed a large fourwheeled platform truck weighing about 500 pounds on said platform at, near, and against and in the immediate proximity of said railroad track," and that thereafter a passing train struck the same and injured plaintiff. It may be safely said that before one can be held liable for the injuries suffered by another, he must have violated some duty owing by him to the other, for in the absence of such duty and its violation the law imposes no liability. This court, in a number of cases, has said: What duty did the oil company owe plaintiff in error? It was not in charge of said platform, nor did the law impose upon it any obligation to keep the same free from obstruction or to place the trucks in any particular place. The plaintiff in error, being a them, and can base no liability to him upon trespasser, took the premises as he found the cotton oil company in its lawful use of the trucks of the railroad company. leaving of the truck in close proximity to the track merely furnished the condition, and the damage, if actionable, was proximately caused by the railroad company in subsequently operating its train. The The objection to the introduction of evidence as against the oil company was properly sustained. [6] Should the demurrer to the evidence have been sustained as to the railroad company? The evidence clearly shows the engineer in charge of the train saw the plaintiff in error in his perilous condition and motioned to him to get back from the track. Under the authority of A., T. & S. F. R. Co. v. Cogswell, 23 Okl. 181, 99 Pac. 923, 20 L. R. A. (N. S.) 837, and of Midland Valley R. Co. v. Littlejohn, 44 Okl. 8, 143 Pac. 1, the plaintiff in error was a trespasser upon the premises of the company, still it owed him the duty to exercise ordinary care and caution to avoid injuring him after it discovered his perilous position. This presented a question of fact as to whether the defendant railroad company did that. [3, 4] The evidence establishes that the train was being operated very slowly, and that the engineer, although he saw the perilous position of the boy upon the platform, made no effort to stop the train or to avoid the injury, except by a wave of the hand. In A., T. & S. F. R. Co. v. Baker, 21 Okl. 51, 95 Pac. 433, 16 L. R. A. (N. S.) 825, it is said: "Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident, yet the contributory negligence on his part will not exonerate the defendant and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequence of the plaintiff's negligence." This doctrine of the "last clear chance' is recognized in this state in the following cases: Clark v. St. L. & S. F. R. Co., 24 Okl. 765, 108 Pac. 361; Okla. Ry. Co. v. Barkett, 30 Okl. 28, 118 Pac. 350; A., T. & S. F. R. Co. v. Baker, 21 Okl. 51, 95 Pac. 433, 16 L. R. A. (N. S.) 825; A., T. & S. F. R. Co. v. Cogswell, 23 Okl. 181, 99 Pac. 923, 20 L. R. A. (N. S.) S37; Midland V. R. Co. v. Littlejohn, 44 Okl. 8, 143 Pac. 1. with the party seeking to invalidate or avoid it. Section 935, Rev. Laws 1910. Kane and Rainey, JJ., dissenting. Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. defendants, and plaintiff brings error. Reversed and remanded. Action by the Liverpool & London & Globe Where there is any evidence for the plain-ard F. Biggers and others. Judgment for Insurance Company, Limited, against Richtiff to show or tending to establish that the act of the defendant proximately contributed to the plaintiff's injury, the question of contributory negligence is one of fact, and, under the Constitution of this state (section 6, art. 23), must be left to the jury. C., R. I. & P. R. Co. v. Duran, 38 Okl. 719, 134 Pac. 876; Midland V. R. Co. v. Shores, 40 Okl. 75, 136 Pac. 157, 49 L. R. A. (N. S.) 814; St. L. & S. F. R. Co. v. Model Laundry, 42 Okl. 501, 141 Pac. 970; St. L. & S. F. R. Co. v. Clark, 42 Okl. 638, 142 Pac. 396. The judgment of the lower court as to the St. Louis & San Francisco Railroad Company is reversed and remanded for a new trial, and affirmed as to the Stroud Oil Company. PER CURIAM. Adopted in whole. LIVERPOOL & LONDON & GLOBE INS. (Syllabus by the Court.) 1. INSURANCE 83(1)-BOND OF AGENT COMMISSIONS ADVANCED - PREMATURE AC TION. Among the covenants of an insurance agency bond was the following: "And it is further understood and agreed that he [the agent] shall make good and pay to this company all commissions advanced on notes where such notes or any part of them become due and are not paid for a period of two years after the severing of his connections with this company." Held, in an action on the bond brought to recover commissions advanced on policies for which the agent had taken premium notes, and which notes though due were unpaid, that such action was not prematurely brought, when commenced within two years from the maturity of the unpaid notes and from the termination of the agency. 2. INSURANCE 83(1)-BOND OF AGENT ACTION "FOR.' The preposition "for," as used in the paragraph above quoted, being used in connection with time, means "during" the period of two years after the termination of the agency. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, For.] 3. BONDS 130-CONSIDERATION - "WRITTEN INSTRUMENT. Under the express provision of section 934, Rev. Laws 1910, a bond, being "a written in strument," is presumptively supported by a consideration. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Written Instrument.] 4. BONDS 130-WANT OF CONSIDERATION BURDEN OF PROOF. Scothorn, Caldwell & McRill and George B. Rittenhouse, all of Oklahoma City, for plaintiff in error. Charles E. Wells, of Shawnee, for defendants in error. SHARP, C. J. On November 16, 1911, Richard F. Biggers (doing business under the name of R. F. Biggers & Co.) was appointed an agent of the Liverpool & London & Globe Insurance Company, Limited, at Shawnee, Okl. executed to the insurance company an agency On the same day Biggers bond which was signed by the defendants Aaron H. Eikenbury, George M. D. Steel, and William H. Lokey. The bond contained various covenants and provisions, the pertinent ones being as follows: "It is further hereby stipulated and made a further condition of this bond that if for any reason the said R. F. Biggers & Co. ceases to be the agent of this company that he [they] shall be held responsible to this company for the return commissions on all cancellations of policies on which notes shall have been paid for in cash prior to sixty days after the severing of his connection with this company, and it is further understood and agreed that he shall make good and pay to this company all commissions advanced on notes where such notes or any part of them become due and are not paid for a period of two years after the severing of his connections with this company." The agency was terminated January 1, 1912, and on March 15, 1913, action was brought to recover of the principal and sureties on the bond commissions that had been advanced Biggers on premium notes maturing in the months of November and December, 1911, and during the year 1912, which notes though due were unpaid at the time the action was instituted. The amended petition charged the designation of Biggers as agent, the duties arising from his office, the making of the agency bond, the termination of the agency, and the failure to account for and pay over the commissions advanced by the company on dishonored notes, and prayed for judgment against the principal and surety on the bond for the amount of the advanced commissions. Copy of the bond was attached to the petition, marked as an exhibit and made a part thereof; also a detailed statement of the premium notes taken and the commissions advanced and charged back. A demurrer was sustained to the petition, and the action was dismissed, with The burden of showing a want of consid- costs, from which judgment the plaintiff beeration sufficient to support an instrument lies low brings error. [3, 4] Accepting the statement of defend- | 16 How. 610, 14 L. Ed. 1079; Leach v. Burr, ants in error, the points of attack on the 188 U. S. 510, 23 Sup. Ct. 393, 47 L. Ed. 567. sufficiency of the petition are: (1) That the The bond did not undertake to cover all petition fails to state a cause of action; (2) notes that may have been taken, but such that if a cause of action was stated, the pe- only as matured and were unpaid during the tition discloses that it was prematurely two-year period. Any other view would exbrought. In support of the first proposition, tend the liability of the sureties to all unpaid it is urged that as the written contract of notes, and is not, therefore, in the circumagency did not obligate Biggers to return stances at hand, to be favored. The contenthe commissions, and as a return thereof did tion of the defendants that the purpose of the not arise by operation of law from the re- two-year provision was that the company lation of the parties, the bond is without should have that time in which to enforce consideration. The contention is untenable. collection of the premium notes loses force The basis of the action was the agency bond from the fact that according to the allegaexecuted under the hand and seal of both tions of the petition all policies issued for Biggers and the sureties, and, being a writ- which premium notes were given, and which ten instrument, imported a consideration. were not paid when due, were, by express This much seems clear from a most casual provision of the policies, canceled. So that reading of section 934, Rev. Laws, making a if the policies were in fact canceled as chargwritten instrument presumptive evidence of ed, no action on the premium. notes would a consideration. It is difficult to understand lie unless it may be, for the period the polihow this statute can be either misconstrued cy was in force prior to its cancellation. or held inapplicable, as the language is plain Much more reasonable is the view that it and the meaning obvious, and the bond a was the purpose of the parties to give a right "written instrument" within the purview of of action immediately upon default in the the statute. If in fact there was a want of payment of the premium notes, and to inconsideration, the burden of proof would rest clude therein all notes which had matured upon the makers of the bond, as it is pro- and were unpaid during a period of two vided in section 935, Rev. Laws, that: years from the termination of the agency. In such case the liabilities of the sureties would be measured by the amount of the premiums advanced the agent on notes which matured and were unpaid at the expiration of two years, and for which their principal had failed to make settlement with the insurance company. A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. Section 953, Rev. Laws. The true meaning of the provisions being in doubt, the rule in Kansas City Bridge Co. v. Lindsay Bridge Co., 32 Okl. 31, 121 Pac. 639, would seem to apply. There we held that where the meaning of a contract was doubtful, so that it was fairly susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes it a rational and probable agreement must be preferred to that which makes it an unusual, unfair, or improbable contract. "The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it." See St. Louis & S. F. R. Co. v. Bruner, 52 Okl. 349, 152 Pac. 1103; Reeves & Co. Dyer, 52 Okl. 750, 153 Pac. 850; Swan v. O'Bar, 167 Pac. 470. v. [1, 2] The claim that the action was prematurely brought brings under review a construction of the language of the bond to which attention has already been called. It is urged by the makers of the bond that an action thereon would not lie until after two years from the maturity and nonpayment of the premium notes; while on the part of the insurance company it is claimed that a proper construction of the bond means that the obligors therein are liable for commissions advanced on notes maturing and unpaid during a period of two years from the termination of the agency. It will be seen that the obligors on the bond did not undertake to make good and pay to the company all commissions advanced on notes, but only on such notes (or any part of them) as became due and were not paid for a period of two years after the termination of his (Biggers) connections with the company. The clause, Considering the covenant of the bond al"for a period of two years," refers to the ready pointed out, in connection with the othtime following the termination of the agency, er provisions and the purposes thereof, and and does not qualify the words "become due observing the rule of construction applicable and are not paid." The preposition "for" in such cases, we are of opinion that the immediately preceding the clause "a period action was not prematurely brought, and of two years," as used, means during two that the two-year period of limitation means years from the termination of the agency; that during the time thereof an action would the word "for" means of itself duration when lie-not that the action may only be brought it is used in connection with time. Whitak- after the expiration of the two-year period. er v. Beach, 12 Kan. 493; Lawson v. Gibson, It would be unusual, and we may add un that the company should wait two years Action by Arlie Carter against D. J. Hosfrom the maturity of a large number of pre-tettler, Ralph Wicker, and John Burns. mium notes before charging back the cash Judgment for plaintiff, motion for new trial commission advanced the agent, or to re- denied, and defendants Hostettler and Wickquire the company to withhold suit on the er bring error. Affirmed. bond for a like period. We cannot believe that such purpose was in contemplation of the parties, from the language used. IN DAMAGES-AGENCY. 15(3)-LIABILITY A manager of a store caused a person to be arrested in said store, charging that the party arrested had passed forged checks upon said store. The party arrested was confined in jail and discharged at the instance of said manager, without trial. The owner of such store was not present at the time said arrest was made, and did not particularly authorize such acts of his manager. Held, that in an action for false imprisonment in causing the said arrest, said manager was the agent of the owner of said store, and said owner is liable in damages for the said act of his said agent and manager. (Additional Syllabus by Editorial Staff.) 5. APPEAL AND ERROR 1033(5)— INSTRUC TIONS-PREJUDICIAL ERROR. In action for false imprisonment, instructions more favorable than appellants were entitled to and outside any issue involved in the action were not prejudicial. 6. TRIAL 251(2)-IsSUES-INSTRUCTION. Dan Huett, of Enid, for plaintiffs in error. H. Z. Wedgewood, of Enid, for defendant in error. COLLIER, C. This is an action brought by the defendant in error against the plaintiffs in error to recover damages for false imprisonment. The petition, omitting caption and signatures, is as follows: "(1) That the defendant Head's Upstairs Shoe Store is a retail shoe store, doing business as such in the city of Enid, Okl. That the defendant D. H. Hostettler is, and on the 14th day of December, 1916, was, the owner, with the control, management, and supervision of said store and its business. That at said time the defendant Ralph Wicker was the local manager, and in the actual control and management of said store. That there were other clerks therein waiting upon customers and attending to the business incident thereto, whose names plaintiff does not know. That the defendant John Burns was chief of police of the city of Enid. "(2) That upon said date the plaintiff lawfully entered the store aforesaid, in company with one O. A. Powers, who wished to look at a pair of shoes therein. That while in said store in said capacity the said Ralph Wicker and the other employés and clerks aforesaid, whose names plaintiff does not know, unlawfully, wrongfully, forcibly, and against plaintiff's will, detained, held, and imprisoned him in said store, and unlawfully and wrongfully procured his arrest by the defendant John Burns, acting as a police officer of the city of Enid. That the arrest of the plaintiff, as aforesaid, was without a warrant, and was wrongful and illegal. That at once after the plaintiff had been so arrested, and without any indictment being filed against him, or opportunity given him to make a defense, he was, through and under the directions of said defendants, forcibly and unlawfully imprisoned in the county jail of Garfield county, and kept there for ten hours, or thereabouts. That he was so thrown into said jail among common criminals, and while there the Enid Daily Eagle, a newspaper of considerable circulation and influence, printed and published in its daily paper that he was confined in said jail upon a criminal charge. The plaintiff was liberated without any information or indictment being filed against him, and that said imprisonment, so as aforesaid procured by the defendants, was false, unlawful, and without cause. That by reason of the wrongful and unlawful imprisonment of the plaintiff as aforesaid, he has been disgraced, his good name tarnished, and his character traduced and blackened. That he has been caused to suf fer humiliation and shame, and his credit and standing have been injured, whereby he has been damaged in the sum of $5,000, no part of which has been paid. "Wherefore plaintiff prays judgment against the defendants in the said sum of $5,000, and costs of suit." In action for false imprisonment, the giving Each of the defendants filed a general deof instructions on matters outside any issue in-murrer to the petition, which was overruled volved in the action was error. Commissioners' Opinion, Division No. 1. Error from District Court, Garfield County; James B. Cullison, Judge. and excepted to. Upon the overruling of the demurrer D. J. Hostettler filed a general denial, except that he admitted that he is the owner of Head's Upstairs Shoe Store of the not exceeding the sum of $5,000. city of Enid, Okl., and that Ralph Wicker is | and imprisonment, and you may assess his damlocal manager of the said store, and specific- ages at such a sum as you may think proper, ally denied that the defendant Ralph Wicker, from the facts and circumstances of the case, or any of the clerks or employés in said store have any right or authority to act for him in any matter not proper in the conduct of a retail shoe business. Ralph Wicker answered by general denial, except that he admitted that he is the local manager of the said store. John Burns answered by general denial, and admitted that he was the duly appointed, qualified, and acting chief of police of the city of Enid, Okl. To said answers replies were respectively filed. "(4) The court further instructs the jury that to constitute a probable cause for false arrest and false imprisonment there must be a reacumstances sufficiently strong in themselves to sonable ground of suspicion, supported by cirwarrant a cautious man in the belief that the person accused is guilty of the offense charged. the jury, as a matter of law, that there can be "(5) You are further instructed, gentlemen of no justified arrest without a warrant by a private person, unless it first be shown that a felony has actually been committed, and that there were reasonable grounds to believe that the person arrested was the felon; and the burden is upon the defendant, when sued for an arrest, to show that the circumstances justified such belief. And the foregoing rule of law is applicable to one who procures an arrest by an officer." To the giving of each of said instructions the defendant duly excepted. "(1) You are instructed that under the evidence and the pleading in this case the plaintiff is not entitled to recover, and your verdict The evidence in this case is voluminous, and we think fully sustains the allegations of the petition, and we therefore deem it unnecessary to recite it, especially as it is said in defendants' brief "that there is no substantial dispute as to the facts of the case," further than to say that in addition The defendants requested the following into evidence as to the allegations of the peti-structions: tion, the undisputed evidence was that the plaintiff was 21 years old; was a brakeman on the "Frisco"; that while in jail worried about what his people and friends might think of him being arrested and in jail, and whether or not he would be able to get work when he got out, or if the people would think he was a crook and not employ him; that he had never been in trouble before, and there was evidence that probable cause existed for believing the plaintiff guilty of having issued the false checks. Upon the conclusion of the evidence the defendants demurred thereto, which demurrer was overruled and excepted to. should be for the defendants. "(2) You are instructed that under the pleadings and the evidence the plaintiff is not entitled to recover against the defendant D. J. Hostettler, and your verdict should be for said defend ant. "(3) Gentlemen of the jury, you are instructed that probable cause is a reasonable ground of of such a nature as to justify a cautious and suspicion, supported by facts and circumstances prudent person in believing that the accused was guilty of the offense charged. "(4) You are further instructed that if you believe and find from the evidence that the defendants acted in good faith, believing that the plaintiff was the party who had passed the bad Among other instructions the court gave checks and guilty of obtaining money under the following instructions: "(1) The jury is instructed that the burden of proof in this cause is upon the plaintiff to establish all the material allegations of his petition; that is, that he was imprisoned by the defendants, or some of them, and, if he fails to prove the same by a fair preponderance of the evidence, then your verdict must be for the defendants. Upon the other hand, the court instructs you that after the plaintiff has proved the imprisonment, as herein instructed, it then devolves upon the defendants to show that they had probable cause for advising the arrest and imprisonment of the plaintiff, and unless you can find a fair preponderance of the evidence that the defendants had probable cause for advising said arrest and imprisonment, it will be your duty to find for the plaintiff." "(3) The court instructs the jury that, if you find from a preponderance of the evidence in this case that the plaintiff Arlie Carter was arrested and imprisoned in the county jail of Garfield county, Okl., and if you further find from the evidence that the Head's Upstairs Shoe Store, D. J. Hostettler, Ralph Wicker, or the owner, manager, or agents of said Head's Upstairs Shoe Store, directed, advised, and caused the arrest and imprisonment of said plaintiff, and you further find from the evidence that said defendants had no probable cause for advising, directing, and causing the arrest and imprisonment of said plaintiff, then and under these circumstances the court instructs the jury that such an arrest and imprisonment would be an illegal and unlawful arrest and imprisonment, and that said defendants would be liable in damages to the plaintiff for such unlawful arrest false pretenses, and acted in good faith for the purpose of having the matter investigated by the sheriff and county attorney of Garfield county, and that the plaintiff was held only for the purpose of investigation by the sheriff, would not be entitled to recover in this action, and your verdict should be for the defendants. "(5) You are further instructed that if you believe and find from the evidence that the defendant Ralph Wicker honestly believed that the plaintiff was the party who committed the felony, and in good faith called John Burns, then the chief of police of the town of Enid, and detailed to said Burns the facts as they were then known to said Ralph Wicker, and that the said John Burns, acting, in his official capacity, and believing that a felony had been committed, and had reasonable cause of believing that the plaintiff had committed the offense, and you further find from the evidence that the said John Burns and the said Ralph Wicker then went with the plaintiff to the office of the county attorney of Garfield county, Okl., and there detailed to said county attorney all of the facts and circumstances connected with the commission of said felony, and then believing that the plaintiff committed said offense, and that then the county attorney of Garfield county, Okl., together with the sheriff of said county, held said plaintiff for the purpose of making a further investigation of said matter, then in that event the plaintiff would not be entitled to recover, and your verdict should be for the defendants. "(6) You are further instructed that if you believe and find from the evidence that a felony had in fact been committed in the passing of the worthless checks, and that the defendant Ralph Wicker had been informed by Johnson, another |