court has to entertain an appeal from the Corporation Commission is by virtue of section 20, art. 9 (section 231, Bunn's Ed.) of the Constitution, which provides that: "From any action of the commission prescribing rates, charges, or classifications of traffic, or affecting the train schedule of any transportation company, or requiring additional facilities, conveniences, or public service of any transportation or transmission company, or refusing to approve a suspending bond, or requiring additional security thereon or an increase thereof, as hereinafter provided for, an appeal (subject to such reasonable limitations as to time, regulations as to procedure and provision as to cost, as may be prescribed by law) may be taken by the corporation whose rates, charges or classifications of traffic, schedule, facilities, conveniences, or service, are affected, or by any person deeming himself aggrieved by such action, or (if allowed by law) by the state." This appeal does not come within the terms of the foregoing, and the same is dismissed. FUNK v. HENDRICKS. (Supreme Court of Oklahoma. Oct. 20, 1909.) 1. APPEAL AND ERROR (§§ 1050, 1056*)-HARMLESS ERROR-ADMISSION AND REJECTION OF EVIDENCE. The improper admission or rejection of evidence, if not prejudicial to the party complaining, is not ground for reversal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4153, 4187; Dec. Dig. §§ 1050, 1056.*] 2. TROVER AND CONVERSION (§ 49*)-MEASURE OF DAMAGES-ELECTION-TIME FOR. Under section 2752, Wilson's Rev. & Ann. St. 1903, which provides, in part, "The detriment caused by the wrongful conversion of personal property is presumed to be: First: The value of the property at the time of the conversion with the interest from that time; or, Second: Where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party, ***" in an action for damages for the conversion of personal property, the injured party must elect which measure of damages he will claim, but, unless by his pleadings or otherwise he has made such election, he may at the time the cause is KANE, C. J., and DUNN, HAYES, and submitted to the jury elect the measure of damTURNER, JJ., concur. ATCHISON, T. & S. F. RY. CO. v. STATE et al. (Supreme Court of Oklahoma. Oct. 7, 1909.) RAILROADS (§ 9*)-REGULATION BY CORPORATION COMMISSION-REVIEW BY COURTS. An appeal will not lie to the Supreme Court of the state of Oklahoma to review the action of the Corporation Commission in requiring all railroad companies and street car companies operating within the state of Oklahoma, upon the happening of an accident, to send report thereof, both by telegram and mail, to the Corporation Commission at its office. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 19; Dec. Dig. § 9.*] (Syllabus by the Court.) Appeal from Corporation Commission. From the action of the State Corporation Commission requiring railroad and street railway companies, upon the happening of an accident, to send a report thereof, both by telegram and letter, to the Corporation Commission, the Atchison, Topeka & Santa Fé Railway Company appeals. Appeal dismissed. Cottingham & Bledsoe, for appellant. G. A. Henshaw, Asst. Atty. Gen., for appellees. WILLIAMS, J. The facts in this case being the same as in the case of St. Louis & San Francisco Railway Company, Appellant, v. State et al., Appellees (decided at this term, but not yet officially reported) 105 Pac. 351, the same is controlling. ages he deems most advantageous to him. [Ed. Note. For other cases, see Trover and Conversion, Dec. Dig. § 49.*] 3. TROVER AND CONVERSION (§ 32*)-MEASURE OF DAMAGES-ELECTION-ALLEGATION CON STITUTING. An allegation of a petition in an action for damages for the conversion of personal property to the effect that at the time said property was taken it was of a certain specific value does not constitute an election on the part of the injured party to claim as the detriment caused by the conversion the value of the property at the time of the conversion, with interest from that date. Conversion, Dec. Dig. § 32.*] [Ed. Note.-For other cases, see Trover and Conversion, Dec. Dig. § 32.*] 4. TROVER AND CONVERSION (§ 49*)-MEASURE OF DAMAGES-ELECTION-ACTS CONSTITUTING. Where there is nothing in the record showing that the injured party made a formal election, an instruction by the court below on the measure of damages based upon the second subdivision of section 2752, supra, Wilson's Rev. & Ann. St. 1903, which instruction was accepted by the plaintiff without objection, constituted a sufficient and timely election. Conversion, Dec. Dig. § 49.*] [Ed. Note.-For other cases, see Trover and 5. TROVER AND CONVERSION (§ 66*)—MEASURE OF DAMAGES REASONABLE DILIGENCE IN PROSECUTION OF ACTION. Whether an action for conversion has been prosecuted with reasonable diligence within the purview of the second subdivision of section 2752, Wilson's Rev. & Ann. St. 1903, supra, is a question of law for the court. [Ed. Note.-For other cases, see Trover and Conversion, Dec. Dig. § 66.*] (Syllabus by the Court.) Error from District Court, Woods County; Jno. L. Pancoast, Judge. Action by Samuel Hendricks against Alvin P. Funk. Judgment for plaintiff, and deThe appeal is dismissed. All the Justices fendant brings error. Modified, and, as concur. modified, affirmed. Snoddy & Son, for plaintiff in error. Cow- | to better enable him to prepare for trial, was gill & Dunn, for defendant in error. KANE, C. J. This was an action for damages, brought by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, for the conversion of certain personal property. The petition contained the ordinary allegations necessary to state a cause of action, and further alleged, in substance, that the defendant in depriving the plaintiff of the possession of the property, and taking the same into his own possession and converting the same to his own use, acted unlawfully, oppressively, and maliciously, and that, by reason of said malicious and oppressive treatment, the plaintiff was entitled to recover from defendant exemplary damages in the sum of $3,000. The prayer of the petition is as follows: "Wherefore plaintiff prays judgment against the defendant for the sum of $4,137.25; for costs and all other proper relief." The answer was a general denial. Upon the issues thus joined the cause was tried to a jury, which returned a verdict in favor of the plaintiff in the sum of $619.16 as compensatory and the sum of $100 as exemplary damages, upon which verdict judgment was duly entered. To reverse this judgment the defendant commenced this proceeding in error in this court. The errors assigned by counsel for plaintiff in error and argued in their brief are (1) error of the court in excluding competent evidence offered by the defendant; (2) error of the court in giving certain instructions to the jury; and (3) that the evidence in the case did not authorize the court to instruct the jury on exemplary damages. We have carefully examined the evidence adduced at the trial, particularly the questions to which the court sustained objections, and are of the opinion that the case was fully and fairly presented to the jury as far as the evidence is concerned, and that there was no prejudicial error committed by the court below in excluding or admitting evidence over the objections of the losing party. There may have been an occasional objection sustained that ought to have been overruled, but an examination of the record shows that objections to practically the same questions when asked in another form were overruled, and that on the whole no material evidence was excluded. "The improper admission or rejection of evidence, if not prejudicial to the party complaining, is not ground for reversal." Mullen v. Thaxton (handed down this term, not yet officially reported, and ⚫ cases cited) 104 Pac. 359. The first instruction counsel finds fault with is to the effect that the plaintiff was entitled to the highest price that the wheat was at the point of taking at any time between the time it was taken and the verdict, without interest. His contention is that, under our statute providing the measure of damages in cases of conversion, he, entitled to an election on the part of the plaintiff, and that this election was made in the petition by alleging the value of the property at the time of its conversion. Section 2752, Wilson's Rev. & Ann. St. 1903, provides that: "The detriment caused by the wrongful conversion of personal property is presumed to be: First: The value of the property at the time of the conversion with the interest from that time; or Second: Where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party. * *" Whilst we are of the opinion that under this provision the injured party must elect which measure of damages he will claim and cannot claim damages according to both standards in the same case, we are of the opinion that the plaintiff did not make such an election. The allegation of the petition which counsel for defendant contends constituted an election was to the effect that on the day of August, 1906, the plaintiff was the owner and in the possession of certain personal property of a certain value, and that on said day the defendant wrongfully and unlawfully took possession thereof and deprived the plaintiff of his possession therein, and converted and disposed of said goods to his own use and benefits. The prayer, herein before set out, was a general prayer for judgment against the defendant for the sum of $4,137.25 and costs, and all other proper relief. These are the ordinary allegations to charge conversion of personal property, and left the question of which statutory measure of damages the plaintiff would elect open. The statute to our mind fully contemplates that this election may be made at any time before the case is finally given to the jury. Under the statute, the market value prevailing on the day the case goes to trial may be the highest market value of the property at any time between the conversion and the verdict, and, unless the plaintiff by his pleadings or otherwise has made an election, he ought not to be precluded from electing the measure of damages most advantageous to him at the time the cause is submitted to the jury, provided he has prosecuted his action with reasonable diligence; and whether he has done so or not is a question of law for the court. While there is nothing in the record to indicate that the plaintiff made a formal election, to our mind the instruction of the court, being in harmony with the pleadings and predicated upon ample evidence, was sufficient to constitute such election. The instruction seems to have been given by the court upon its own motion, and, as it was accepted by the plaintiff without objection, it constituted a sufficient election as to which measure of damages he claimed. The instruction to the jury on the question FACT-CONFLICT IN EVIDENCE. OR Where there is a reasonable conflict in the evidence, the issue must be submitted to the jury for determination. of exemplary damages was misleading and I cancellation does neither amount to a waiver erroneous. The dispute over the personal of tender nor consent to such cancellation. property arose out of a misunderstanding policy as bailee for the assured, his marking. (a) The local agent being in possession of the between the plaintiff and defendant as to the same "Canceled" and returning same to the terms of a lease of certain real estate. the company, without the consent or knowledge The jury was instructed that, if they found of the assured, does neither constitute a waiver or estoppel nor a consent or acquiescence. "that the land was taken in wanton disre[Ed. Note.-For other cases, see Insurance, gard of the other man's rights, * Cent. Dig. §§ 506, 511; Dec. Dig. §§ 230, 234.*] then you may assess such amount by way 4. TRIAL (§ 143*)-QUESTIONS OF LAW of punitive damages as you in your sound discretion think the case warrants." By the petition it will be seen that the action was commenced for the sole purpose of recovering damages for the conversion of personal property, and no reference was made to the taking of the land under a spirit of wantonness, oppression, fraud, or any other way. On this ground, the cause should be reversed; but, as counsel for defendant in error in his brief states that, if the court finds that the item for exemplary damages cannot be sustained, it be eliminated without reversal of the cause, there being no other reversible error apparent in the record, we adopt his suggestion. It is therefore ordered that the judgment of the court below shall be modified by striking out the one hundred dollar item as exemplary damages, and that in all other respects the judgment of the court below is affirmed, the costs in this court to be equally divided between the plaintiff in error and the defendant in error. All the Justices concur, except DUNN, J., disqualified, not sitting. Dig. § 342; Dec. Dig. § 143.*] [Ed. Note.-For other cases, see Trial, Cent. Dunn and Hayes, JJ., dissenting. Error from the United States Court for the Northern District of the Indian Territory; L. F. Parker, Judge. Action by William Taylor against the Insurance Company of North America. Judgment for defendant, and plaintiff brings error. Reversed and remanded. Dennis H. Wilson, Preston S. Davis, and T. L. Brown, for plaintiff in error. Fulton, Stringer & Grant and Burwell, Crockett & Johnson, for defendant in error. WILLIAMS, J. The agent of the company, in whose possession the insured left the policy upon which this action was based, was named Comer. On September 26, 1904, Comer met Taylor on the streets of Claremore and said to him: "The insurance company has canceled your policy on your hay." Tay TAYLOR v. INSURANCE CO. OF NORTH lor asked him on what ground, and the agent 2. INSURANCE (§ 230*)-POLICY CANCELLATION BY INSURER RETURN OF UNEARNED PREMIUM. The return of the unearned premium is essential to a cancellation by the company, where the policy, among other things, provides, "when this policy is canceled by this company by giving notice, it shall retain only the pro rata pre mium." [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 509, 510; Dec. Dig. § 230.*] 3. INSURANCE (§§ 230, 234*)-POLICY-CANCELLATION BY INSURER-RETURN OF UNEARNED PREMIUM-WAIVER-ACQUIESCENCE IN CANCELLATION. said: "They did not state." Taylor then said: "Where is my money?" or "How about my money I have paid them, if they have canceled it? How about my money?" And the agent said: "They did not say anything about it." Taylor rejoined: "I guess I can get my money then, if they have canceled it." The agent, Comer, testified that he canceled the policy on September 26, 1904, and on that day returned the same to the company. It is the contention of counsel for plaintiff in error that the company, under the terms of this policy, could not cancel it except that it at some time tendered or returned to him the unearned premium in accordance with what he argues are its terms, and on account of the fact that this unearned premium was neither returned nor tendered prior to October 9, 1904, that this had the effect of keeping alive the policy and rendering the company liable for the loss. The paragraph of the policy relating to cancellation is what. When a local agent for an insurance com- is commonly known as the "New York standpany, under instructions thereto, gives the assured notice of the cancellation of the policy, ard form," and reads as follows: "This poliwithout tendering, or offering to tender, the cy shall be canceled at any time at the reunearned premium, and neither being authoriz- quest of the insured, or by the company by ed to make such tender nor seeking a waiverquest thereof, or being authorized thereto, the fact giving five days' notice of such cancellation. that the assured does not protest against such If this policy shall be canceled as hereinbe fore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate, except that, when this policy is canceled by this company by giving notice, it shall retain only the pro rata premium." The construction of this contract is necessary in order to determine whether or not the policy is canceled. If the construction contended for by the defendant in error is correct, the clause was intended to read as follows: "If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate, except that, when this policy is canceled by this company by giving notice (on surrender of this policy), it shall retain only the pro rata premium." Without the interpolation of the words "on surrender of this policy" in the last clause, there is an ambiguity, and there is equal reason for the following interpretation: "If this policy shall be canceled (at any time at the request of the insured), or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate, except that, when this policy is canceled by this company by giving notice, it shall retain only the pro rata premium." When the policy is canceled by giving "five days' notice of such cancellation," the company retaining "only the pro rata premium," this cannot be accomplished without a tender, unless the words "on surrender of the policy" are read into said clause; and if that was the intention, why repeat the words "by giving notice"? If that contention is correct, it should have been stated as follows: "This policy shall be canceled at any time at the request of the insured, or by the company by giving five days' notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate, except that, when this policy is canceled by this company, it shall retain only the pro rata premium." To say the least, the cancellation clause is ambiguous, and when we consider that the insurer was skilled, not only in the framing, but also the interpretation, of such contracts, and that the insured had no part in the framing thereof, as well as being unskilled in such interpretation, such construction should be adopted as is more favorable to the insured; and especially is this true when the construction contended for by the insurer is not only inequitable, but also unjust. * ** known as the "New York standard policy," was framed by virtue of chapter 488, p. 720, of the Laws of New York of 1886, providing for a uniform contract of fire insurance to be used by fire underwriters within said state. The clause here under consideration was first before the Supreme Court of the state of New York in the case of Nitsch v. American Central Insurance Company, 83 Hun, 614, 31 N. Y. Supp. 1131, wherein a tender was construed to be necessary to the cancellation of the policy. The judgment of the Supreme Court was affirmed by the New York Court of Appeals on March 16, 1897 (152 N. Y. 635, 46 N. E. 1149). Afterwards, on March 1, 1898, in the case of Tisdell v. New Hampshire Fire Insurance Company, 155 N. Y. 163, 49 N. E. 664, 40 L. R. A. 765 (see, also, Id., 11 Misc. Rep. 20, 32 N. Y. Supp. 166), it was again held that a tender was a condition precedent to the cancellation of such a policy--the opinion being delivered by Mr. Justice Bartlett, concurred in by Justices Haight, Martin, and Vann, Chief Justice Parker and Mr. Justice O'Brien dissenting, and Mr. Justice Gray being absent. Again, in the case of Buckley v. Insurance Co., 188 N. Y. 399, 81 N. E. 165, 13 L. R. A. (N. S.) 889 (see, also, Id., 112 App. Div. 451, 98 N. Y. Supp. 622), the Court of Appeals, following the Nitsch and Tisdell Cases, said: "It is a question of vital importance to the insurer and the insured as to the precise meaning of the cancellation clause in the standard policy. The situation is not a complicated one, and the court desires to so construe the clause that its meaning may be made clear. If the insurance company desires to cancel, it must, as we have held in the cases cited, not only give the notice required, but accompany it by the payment or tender of the pro rata amount of the unearned premium. It cannot legally demand of the insured the surrender of the policy and its cancellation until this is done." The court was unanimous as to the foregoing conclusion. At that time Chief Justice Cullen, and Justices O'Brien, Haight, Hiscock, Bartlett, Chase, and Vann comprised the court. In the case of Philadelphia Linen Co. v. Manhattan Fire Insur Co., 8 Pa. Dist. R. 261, that court, after referring to the Tisdell Case, said: "The question which is now before us was then passed upon by the Supreme Court of New York upon a policy where the language was identically the same as that which has been quoted from the defendant's policy. The majority of the court in that case decided that, upon cancellation of the policy by the company, it must return or tender the unearned premium in order to effect a cancellation. The same conclusion seems to have been arrived at by the same court in an earlier case, Nitsch v. American Cent. Ins. Co., reported in 152 N. Y. 635, 46 N. E. 1149. While these decisions are not binding upon the courts of Pennsylvania, It is, no doubt, eminently proper to hold companies and corporations, such as insurance companies, to a strict construction of their rights as defined in formal contracts, which are prepared in their own interest and the terms of which the insured, as a rule, has little or no part in determining. This has been the policy of the courts, and has been found by experience to be necessary in order to guard the interests of those who are in many cases ignorant, and in all cases more or less at the mercy of such corporations. The courts of this state have been moved by the same policy, and it may be, and we are inclined to think, that the attitude which has been taken by our own Supreme Court with reference to provisions not identical with, but similar to, those in question, requires us to follow the ruling which has been made in the state of New York." a complete and effective destruction of the contractual relation at the instance of either party, and that to accomplish this end the party moving must do two distinct and separate things; the object in view undeniably being that, when the cancellation shall have been completed, both parties will have been restored, as far as possible, to the conditions existing before the contractual relation began. If the destruction of this relation be begun by the assured, he must give notice to the other party and surrender his policy, which proclaims the existence of the relation he would now destroy. If begun by the company, it must also give notice and repay or tender payment of the unearned premium in its hands. The right reserved to each party is but a single one, viz., the right to cancel; and the cancellation contemplated is not a partial, but a complete, one. The ob cel is, looking broadly at the entire contract provision, also single, viz., the restoration of the other party, as far as may be, to the situation occupied before the contractual relation began. True, this involves the per 1 In the case of Gosch v. Firemen's Insur-ligation imposed on the party moving to canance Co., 33 Pa. Super. Ct. 496, the court said: "The plaintiffs, then, having paid the premium for the entire term, could the defendant, at its own pleasure, effect a complete extinguishment of the insurance contract, merely by giving notice of its determi-formance or tender of performance of anothnation to cancel, without at the same time returning or tendering the unearned portion of that premium? Where a contract with mutual undertakings has been entered into by two parties and fully performed by one of them, we may certainly say, speaking generally, that the other party could not successfully invoke the aid of any court in an effort to rescind until he had returned or tendered the return of any valuable thing he had received by reason of the contract. To permit him to retain the benefits and at the same time repudiate the burdens of his own agreement would be highly unconscionable and shocking to our sense of natural justice. It would be out of harmony with some of the fundamental principles on which our entire system of jurisprudence is built. Of course, where the right to cancel has been expressly reserved in the contract itself, then the extent of the right and the conditions upon which it may be exercised must be determined by a reference to the contract, rather than to principles of general law. Turning, then, to the language of the agreement, in which the parties have undertaken to state their respective rights and duties, if we find it susceptible of two constructions, one in harmony with, the other in opposition to, those general principles already referred to, a sound discretion would seem to invite us to accept the former and reject the latter, just as, in ascertaining the true meaning of a doubtful clause in a will, the courts incline to that construction which would vest the estate, rather than leave it contingent, which would give the inheritance to the heir rather than to a stranger. Taking up, then, the provision of the policy on this subject, and looking at it as a whole, er act besides the giving of notice; but it does not necessarily follow that such performance or tender may be totally dissevered in time from, and thus rendered wholly independent of, the giving of the notice. Such a construction of the policy provision, although strongly urged on us by the learned counsel for appellant, is, at best, a doubtful one. More than this he can hardly claim for it, in the light of the fact that it has been deliberately rejected by the courts of last resort of most of our sister states. The argument supporting it, as he agrees, has been stated, as forcibly as it can be, in the dissenting opinion of Chief Justice Parker in Tisdell v. New Hampshire Fire Ins. Co., 155 N. Y. 163, 49 N. E. 664, 40 L. R. A. 765. An examination of this opinion seems to show that its conclusions are reached rather from a critical analysis of some of the language of the policy provision and the order in which its sentences are collated than from a broad view of the entire provision and a consideration of the nature of the object to be accomplished thereby. The following language from the majority opinion clearly indicates that the question must now be considered as settled in that jurisdiction: "The question presented on this appeal is no longer an open one in this court. It was decided in Nitsch v. American Central Ins. Co., 152 N. Y. 635, 46 N. E. 1149, affirmed in this court without an opinion. In that case, as in this one, the question presented was whether the provision of the New York standard policy of fire insurance relating to the cancellation of a policy at the instance of the company requires that, in addition to giving the five days' notice, the company must return or tender the unearned premium in or |