The judgment of the lower court must be reversed, and the cause remanded, with directions to sustain 'the demurrer. All the Justices concur, except TURNER, HARDY, and BRETT, JJ., being absent and not participating. In re FIXICO. (No. 8483.) (Supreme Court of Oklahoma. Oct. 8, 1918.) (Syllabus by the Court.) APPEAL AND ERROR 151(2)-APPOINTMENT OF GUARDIAN-APPEAL-PARTIES. Where F., an Indian woman, executed and delivered an oil and gas lease upon certain lands owned by her, and afterwards F. was adjudged incompetent and a guardian appointed for her person and estate, held, that the lessee in such oil and gas lease cannot maintain an appeal from the order appointing a guardian. Appeal from District Court, Creek County; Ernest B. Hughes, Judge. Hasque v. A., T. & S. F. R. R., 173 Pac. 73; | accord with this policy, and may we not exBoard of County Com'rs v. Alexander, 159 press the hope that future legislation will, by Pac. 311; State v. Prairie O. & G. Co., supra. proper act, vitalize this prohibition and pre[6, 7] Section 1 of the act provides for es- vent the results contemplated by counsel cheat where the owner dies without leaving | when corporations are permitted to take tiheirs, but does not provide that the proceeds tle to farm lands in this state? shall go to the county school fund. Under section 6 of the act such proceeds are to be paid to the state treasurer. At about the same time the Legislature was considering this act it had for consideration the act providing for escheat of land acquired or held by aliens, the two acts being approved on the same day, the last appearing as chapter 49, S. L. 1907-08 (article 3, c. 65, R. L. 1910). By the terms of section 7 of that act (section 6652, R. L. 1910) it is expressly provided that the proceeds of such escheat from alien owners shall be paid to the treasurer of the state for the benefit of the state school fund. Thus it appears we have three sections of the statute providing for escheat. In two instances, where the owner dies leaving no heirs, and where the land is held by an alien, the proceeds go to the state fund. In one instance, where the land is held by a corporation, the proceeds by express provision are to be divided between the county fund and E. H. Hoyt appeals from a decree adjudg the informer. Construing these sections and ing Katie Fixico to be an incompetent and acts together, we must conclude that the af-appointing a guardian for her person. Apfirmative and express provision that the propeal dismissed. ceeds arising from the sale of lands held by William M. Matthews, of Okmulgee, for corporations shall be paid to the county plaintiff in error. Joseph C. Stone, Charles school fund and the informer was intended A. Moon, and Francis Stewart, all of Musby the Legislature to be enforced. To hold kogee, and W. D. Elrod, of Okmulgee, for that the escheat may be declared under this defendants in error. Carroll & Mason and section, but that the proceeds shall be divert- C. H. Rosenstein, all of Tulsa, amici curiæ. ed from the course expressly designated by the section and be passed to a separate and HARDY, J. From a decree adjudging entirely different fund, would cause results Katie Fixico to be an incompetent and apnot contemplated or intended by the Legisla-pointing a guardian for her person and esture. It appears the Legislature had a fixed purpose and intent as to the disposition of the proceeds of property escheated from corporations, and one different from escheats from aliens and for want of heirs. Much has been said in this case, both in the oral arguments and briefs, of the dire results likely to follow the conclusion we have reached. We are prone to hope that counsel are to some extent mistaken; but, be that as it may, we must construe the law as we find it, and not always as we would have it. The framers of our Constitution believed it to be inimical to the public good that corporations, which may live always and grow ever so powerful, should be at liberty to hold and deal in farm lands, and in section 2, art. 22, of the Constitution, we find the manifest policy of the state to prevent this condition. The section was not made self-executing, but it was left to the Legislature to vitalize the provision and prescribe a penalty for its enforcement. tate, E. H. Hoyt prosecutes an appeal. Motion is filed to dismiss this proceeding for the reason that Hoyt is not an aggrieved person entitled to appeal from said order. The interest asserted by Hoyt is that the decree casts a cloud upon his title to a certain oil and gas lease executed by Katie Fixico to II. R. Denton and by Denton assigned to Hoyt before the decree. A party is aggrieved by a judgment or de cree when it operates on his right of property or bears directly upon his interest. In re Bohanan, 37 Okl. 560, 133 Pac. 44. The interest affected must be a substantial one. The mere fact that a person is hurt in his feelings, wounded in his affections, or subjected to inconvenience, annoyance, or discomfort, or even expense by a decree does not entitle him to appeal therefrom as long as he is not thereby concluded from asserting or defending his claims of personal or property rights in the proper court. Sherer v. Sherer, 93 Me. 210, 44 Atl. 899, 74 Am. St. Rep. 339; McKenna v. McKenna, 29 R. The writer of this opinion is in thorough | I. 224, 69 Atl. 844. ror. The decree appealed from does not pur- Franklin, all of Tulsa, for defendants in erport to adjudicate any right claimed by Hoyt, nor does it affect his interests, and would not be admissible in evidence as tendHARDY, J. E. W. Kimbley, as guardian of ing to determine the validity or invalidity Katie Fixico, a full-blood Creek Indian, inof his title to the lease claimed by him. Du- stituted this action against E. H. Hoyt and roderigo v. Culwell, 52 Okl. 6, 152 Pac. 605. H. R. Denton, the Carpathia Petroleum ComThe sole question determined in the guard-pany, and the Mid-Co Petroleum Company, ianship proceeding was as to the compe- to quiet her title to certain lands which she tency of Katie at the time of the inquiry, and the finding thereon had no retroactive effect, and the court had no jurisdiction in that proceeding to adjudicate any right claimed by Hoyt under his lease. had inherited from her brother, Benoche Fixico. By an amended petition she prayed that the right and title of the Carpathia Petroleum Company and the Mid-Co Petroleum Company be quieted in them respectively. Judgment was for plaintiff, and Hoyt and Denton prosecute error. In Duroderigo v. Culwell, it was held that an order of a county court adjudging a person incompetent who had, previous to such On March 2, 1912, William P. Morton, as order, conveyed real estate, was competent, guardian of Katie Fixico, executed an oil in a subsequent action in the district court and gas mining lease upon a departmental to recover the real estate, to show that the form to H. U. Bartlett, which lease was apaction was properly brought by his guard-proved by the county court and also by the ian, but that a special finding of the county Secretary of the Interior. By various assignjudge that the incompetent was an imbe-ments this lease passed to the Carpathia Pecile from birth was not admissible, for the troleum Company, which corporation assigned reason that that was the very question being a one-half interest therein to the Mid-Co Petried to a jury, and they should be left free troleum Company. On February 11, 1915, to determine it in the light of the evidence after reaching her majority, Katie executed a introduced at the hearing upon the ques-bill of sale to Walter W. Morton, a brother of tion. HOYT et al. v. FIXICO. (No. 9639.) (Supreme Court of Oklahoma. Oct. 8, 1918.) (Syllabus by the Court.) 1. INDIANS 16(3)-OIL AND GAS LEASEAPPROVAL VALIDITY "CONVEYANCE INTEREST IN LAND." OF William P. Morton, which purported to convey to him all of the oil and gas rights of the plaintiff in and to said lands and all of plaintiff's royalty interest accruing and to accrue from the operation of said lands for oil and gas purposes for a consideration of $22,500, $4,000 of which was deposited in the First National Bank of Okmulgee, to be paid out on Katie's checks when O. K.'d by Morton; the remainder to be paid out of 60 per cent. of the proceeds of the plaintiff's oil and gas when run. On the same day Katie executed a warranty deed to said Walter W. Morton, pur An oil and gas mining lease executed Feb-porting to convey all her land for the considruary 11, 1915, by a full-blood heir of a de- eration named in the bill of sale and for $500 ceased Creek Indian allottee, is a "conveyance additional, and on the same date executed an of an interest" in said lands, and is void unless oil and gas mining lease to H. R. Denton and approved as required by section 9, Act Cong. assigns. March 1, 1915, Denton conveyed an undivided one-half interest in said lease to E. H. Hoyt. May 27, 1908, c. 199, 35 Stat. 315. 2. GUARDIAN AND WARD 44-OIL AND GAS LEASE-APPROVAL-VALIDITY. An oil and gas mining lease of such land executed by a guardian of a minor full-blood heir of such deceased allottee. on March 2. 1912, for a period of years extending beyond the minority of his ward, which lease was duly approved, is valid. Error from District Court, Creek County; Ernest B. Hughes, Judge. Action to quiet title by E. W. Kimbley, as quardian of Katie Fixico, against E. H. Hoyt and H. R. Denton and others. Judgment for plaintiff, and defendants named bring error. Affirmed. [1] It is conceded that, if the lease under which Denton and Hoyt claim be invalid, the judgment should be affirmed. Section 9, Act of Congress May 27, 1908, c. 199, 35 Stat. 315, provides: "That the death of an allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee's interest of any full-blood Indian heir in such land: Provided, that no conveyance of any land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee." William M. Matthews, of Okmulgee, for If the oil and gas lease under which Denplaintiffs in error. Joseph C. Stone, Charles ton and Hoyt claimed comes within the proA. Moon, and Francis Stewart, all of Mus-visions of this section, then a failure to sekogee, and Carroll & Mason, C. H. Rosenstein, cure the approval thereof as required thereE. Nat Ligon, Chas. R. Bostick, and W. C. by would prevent it from having any validity 1908, was invalid and constituted a cloud upon the plaintiff's title, and the court did right in decreeing a cancellation thereor. necessary for a lease to be executed were fully set out in the petition and were such facts as to authorize the court in its best judgment to approve a lease which it deemed for the best interest of the minor, even though it extended for a time beyond ma or binding force. In Eldred et al. v. Okmul- ties. The lease under which Denton and gee Loan & Trust Co., 22 Okl. 742, 98 Pac. Hoyt claim, not having been approved as re929, this court in construing a provision inquired by section 9 of Act Congress, May 27, the act of April 21, 1904, removing restrictions upon the alienation of lands of all allottees of the Five Civilized Tribes who were not of Indian blood except minors and ex- [2] The lease executed by William P. Morcept as to homesteads, held that a lease con- ton as guardian of Katie on the 2d day of veyed a leasehold estate and was an aliena- March, 1912, did not terminate upon Katie tion by deed and an alienation within the reaching her majority. The lease actually intent and meaning of the act. The Circuit executed was for a period of ten years and as Court of Appeals for the Eighth Circuit, in much longer thereafter as oil and gas were the case of Parker et al. v. Riley, 243 Fed. found in paying quantities upon the leased 42, 155 C. C. A. 572, had occasion to construe premises. A petition was filed by the guardthe Act of May 27, 1908, with reference to an ian, praying authority to lease the premises, oil and gas mining lease, and reached the and the report and return of the guardian conclusion that a lease of a restricted home- show that a lease was executed which was stead for oil and gas or other mining pur- to terminate when the minor arrived at her poses, under section 2 of said act, was an majority. The lease was executed upon a alienation of that part of the land constitut- departmental form and was duly approved. ing the homestead which the lease permits Assuming that a petition was necessary to the lessee to take from it by the discovery authorize the court to approve such lease and removal thereunder of the oil and gas when executed, the petition actually filed and other minerals therein. To construe sec- was sufficient to challenge the jurisdiction of tion 9 as authorizing full-blood Indian heirs the court, and the court was possessed of to lease inherited lands for oil and gas min-jurisdiction to approve conveyances of this ing purposes without approval, and thereby general character. The facts which made it divest the full-blood Indian of the greater part of his estate without the protection of the governmental supervising agency, would defeat the purpose and intention of Congress, for many full-blood heirs would thus be enabled to dispose of their most valuable property rights without the protection which jority. Cabin Valley Mining Co. v. Hall, 53 the government intended they should have. Okl. 760, 155 Pac. 570, L. R. A. 1916F, 493. While, strictly speaking, an oil and gas min- This proceeding is a collateral attack upon ing lease does not convey an estate in the the order approving the lease. Moffer v. realty prior to development of the leased Jones, 169 Pac. 652, and cases cited. And premises, it operates to pass the immediate though the petition be defective and does and exclusive right of possession of the land not contain some essential allegations, these for the purposes named in the lease, and, defects in the petition are not fatal to the upon discovery of oil and gas or either of jurisdiction of the court, because the order them, the lessee acquires a vested right to approving the lease constituted an adjudicaextract and remove from the premises and tion upon all the facts necessary to give apply to his own use the oil and gas found jurisdiction, and whether such facts existed therein (Brennan v. Hunter, 172 Pac. 49, not or not is wholly immaterial when the order yet officially reported) and such a lease is an is not reviewed or attacked on appeal. The alienation of that part of the land which the county court was vested with jurisdiction and lessee takes from it, converts into personal power to determine the sufficiency of the property and appropriates to his own use petition and, in approving the lease, neces(Parker v. Riley, supra); and it was cer- sarily held the petition to be sufficient, and tainly not the intention of Congress that such its judgment thereon is not void upon colan alienation might be made without restric-lateral attack. Welch v. Focht, 171 Pac. 730 tion, while requiring the approval of the con- (not yet officially reported). veyance of the surface, which in many in- The title of plaintiff to the premises being stances would be of far less value than the established, if the lease of defendant be inright to extract oil and gas from the premis- valid, there being no controversy between es. The Supreme Court of the United States, plaintiff and Carpathia Petroleum Company in United States v. Noble, 237 U. S. 74, 35 and Mid-Co Petroleum Company, the finding Sup. Ct. 532, 59 L. Ed. 844, held that the of the court upon these two questions should assignment of rents and royalties accruing be affirmed, and a consideration of the other under an oil and gas lease was a "convey-questions urged is thereby rendered unnecesance of an interest in the land," and that the lessee having no power to convey his estate in the land could not pass title to that sary. The judgment is affirmed. JUDGE. REMARKS OF TRIAL In order to predicate error on the remarks Error from District Court, Carter County; of the trial judge during the trial, exceptions W. F. Freeman, Judge. must be taken to the remarks at the time they are made. Proceeding to enforce mechanics' liens by O. H. Powell and others against the Healdton-Wheeler Oil & Gas Company and the Republic Supply Company. From a decree holding plaintiffs' lien superior, the Republic Supply Company brings error. Reversed, and cause remanded. Sigler & Howard, of Ardmore, for plaintiff in error. R. A. Hefner, of Ardmore, for defendants in error. HARDY, J. From a decree adjudging that certain laborers, who were plaintiffs below, held liens superior to that asserted by it against the property of the Healdton-Wheeler Oil & Gas Company, the Republic Supply Company appeals. The material furnished by plaintiff in error was delivered during the months of August and September, 1914, and statement claiming a lien therefor, as required by section 3865, Rev. Laws 1910, was filed December 14, 1914. The claims of plaintiffs were filed February 10, 1915. A receiver having been appointed, by agreement the property of the Healdton-Wheeler Oil & Gas Company, consisting of certain material furnished by plaintiff in error, was sold, and this contest involves claims for priority against said 3. APPEAL AND ERROR 1002 REVIEW The weight to be given the evidence is a matter left to the jury, and a verdict based on conflicting evidence will not be disturbed, when the evidence reasonably tends to support the verdict. 4. HOSPITALS 7, 8-PERSONAL INJURY-DEGREE OF CARE. A hospital that is conducted for private gain receives patients under an implied obligation that it will exercise ordinary care and attention for their safety, and such degree of care and attention should be in proportion to the physical and mental ailments of the patient, and the question whether or not such requirements have been met presents an issue of fact to be determined by the jury. (Additional Syllabus by Editorial Staff.) 5. HOSPITALS 8-NEGLIGENCE. In an action against a private hospital by a patient for damages because of pneumonia, alleged to have been caused by a leaking roof, evidence held to sustain a finding that defendant was negligent. Commissioners' Opinion, Division No. 2. Appeal from District Court, Tulsa County; W. J. Campbell, Special Judge. Action by Lottie Juby against the Tulsa Hospital Association. Judgment for plaintiff, and defendant appeals. Affirmed. Dillard, Allen & Dillard, of Tulsa, for fund. While there is no evidence in the record showing when said work was performed DAVIS, C. This cause of action comes by plaintiffs, it is asserted by plaintiff in er- here for hearing from the district court of ror, and not denied, that same was per-Tulsa county, Okl. We will refer to the reformed in December, 1914, and January, 1915, spective parties as they appeared in the after the materials were furnished for which trial court. The defendant is a private corplaintiff in error asserts a prior lien. If we poration, conducting a hospital in the town assume that all the plaintiffs complied with of Tulsa, Okl., for private gain. On or about the law with reference to filing statement the 15th day of February, 1915, the plainand claim for liens, the judgment must be retiff, Mrs. Lottie Juby, was taken to said hosversed. The proceeds were insufficient to pay all the claimants in full and by virtue of section 3879, Rev. Laws 1910, the court should have ordered them to be paid in proportion to the amount due each. The judgment is therefore reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. pital for the purpose of being operated on eration. After the operation the patient was, petition in error to this court. There are placed in room 43, under the care of a spe- five assignments of error, which are as folcial nurse. On or about the 20th day of lows: February, 1915, a heavy rain fell, and the roof over the room where the patient was located leaked, to the extent that the blankets on the bed where the patient was lying were wet. There is a conflict in the evidence as to the extent that the bed was wet. The evidence on the part of the plaintiff is to the effect that the bed was wet from the foot to a distance of about twothirds of the length of the bed, and that all the covers on the bed were wet, and also the gown of the plaintiff; that the plaintiff awoke about 5:30 or 6 o'clock in the morning; that she was awakened by the water falling in her face. The evidence shows that the special nurse was sleeping on a cot in the same room with the plaintiff, and that when plaintiff discovered that her bed and clothes were wet that she attempted to wake the nurse and inform her of her condition; that she had considerable difficulty in awakening the nurse, but that when said nurse was awakened that she secured some dry blankets and changed them for those that were on the bed, but the nightgown in which plaintiff was sleeping and also the sheets on the bed were not changed until 8:30 or 9 o'clock on the same morning. There is a conflict in the testimony with reference to this question. The plaintiff testified that she requested that a change be made in her clothes, and also that the sheets be changed. and that the nurse neglected to make said change until the regular time, which was some two hours after the blankets had been changed. The evidence on the part of the plaintiff shows that she became chilled from said wet bedding, and that her condition grew worse, and that about five days there after pneumonia developed; that she suffered for a long time from pneumonia, and incurred large expenses by reason thereof. "First. Said court erred in overruling the motion of the plaintiff in error for a new trial. "Second. Said court erred because of the abuse of the discretion of the court by the presiding judge, by which the party was prevented from having a fair trial in this: The nurse's chart had been lost, and had not been recovered until a few moments before counsel went into the trial. Counsel for the defendant had never had any means of examining said chart, and every witness who had been associated with the plaintiff while she was a patient at the hospital was antagonistic to the present owners of the hospital, and not knowing the condition of said chart, and not having an opportunity of talking with the witnesses in reference thereto, counsel for the defendant, in the exercise of his best judgment for the protection of his client's interest, felt that he was not in a position to offer said chart without knowing what the contents thereof were; that Dr. A. M. Houser, a witness who had stated to counsel for defendant that he was greatly offended at the treatment he had received at the hands of Dr. J. Herbert and that he would leave town before he would Smith, the physician in charge of said hospital, be forced to testify in said case, in his testimony stated he could not tell whether said date on which she claims to have been wet from plaintiff took pneumonia before or after the the leak in the roof of the said hospital, unless he could see the nurse's chart, and, upon being asked, stated that he could not tell whether claimed to have been wet, without he could see the plaintiff improved or not after the date she said chart; and thereupon the court turned to the attorney for the defendant and talked with and at him in the presence of the jury (though he did not call said attorney's name), and stated in substance that the chart was very material in the case. and it ought to be produced for the benefit of the jury, and again, after the case had been closed, the attorney for the defendant asked permission to introduce in evidence a subpoena duces tecum served on him by the attorney for the plaintiff in the case, requiring him to produce on the trial of said cause the said hospital chart. Objection was made by counsel for plaintiff, and counsel for defendant stated that the said subpoena duces tecum was in the possession of his associate counsel the day before, and the fact that it was not offered during the trial was an oversight, because counsel associated in the case had neglected to hand The allegations of negligence on which it to counsel who had examined the witness, as the plaintiff sought to recover are that the he requested him to do so; thereupon the court made the following statement, looking at and defendant was negligent in failing to pro- talking to the jury, said statement being made vide the plaintiff with a suitable and safe in an emphatic tone of voice, to wit: 'Let the place, free from danger, and allowing the record show that the question of the nurse's roof over the room occupied by said plaintiff testimony by the witnesses, and at one time the to remain in a defective condition, and to court suggested that the chart was very material permit water from rains to penetrate said in the case, and notwithstanding the fact that roof and fall upon the bed of the plaintiff, that the court suggested its materiality, and the nurse's chart was in existence, and the fact and that by reason thereof the negligence further fact that it be produced in order that the of the defendant was a direct and proximate jury might inspect same, counsel for defendant cause of the pneumonia that subsequently didn't produce it, and to permit the case to be developed. It is also alleged that the de-chart, or any evidence with reference to the reopened now for the purpose of introducing the fendant was negligent in permitting the chart, would, in effect, reopen the whole case, plaintiff to remain in a wet condition for a and necessitate going over the ground that was period of two hours after the discovery that gone over in the testimony yesterday and would the roof was leaking. The defendant filed Which statement was excepted to by the deunnecessarily delay the trial of this case.' a general denial, and on a trial of the case the plaintiff recovered a judgment in the sum of $3,000. A motion for new trial was overruled, and from the judgment overrul chart was at various times mentioned in the fendant. Said statement of the court was clearly prejudicial to the rights of the defendant in the case, because it was, in effect, an order by the court upon counsel for the defendant to produce and exhibit said chart to the jury, taking |