When a confidential relation exists between a parent and child, and the child is mentally weak, and the parent exercises an influence over the child, everything is presumed against a conveyance to the parent by the child for the parent's benefit, and the burden of proof is on the person benefited to show that the transaction was fairly conducted."

§ 958. Insurance-In general

If a policy has not been issued or delivered, the insured must show that a contract of insurance was entered into.61

Where a policy insured generally against a particular peril and contained a clause exempting the insurer from liability for loss caused in a certain manner, the burden was on the insurer to prove that the loss fell within the exemption.62

The burden of proof of waiver of a concurrent insurance clause. in a fire policy, by knowledge of the agent of the existence thereof at the time of the delivery of the policy, is on the insured.63

Under a policy insuring property against fire while contained in a described building, it is incumbent on the insured to allege and prove that the loss occurred while the property was in such building.64

The burden is on an insurer to show that it has given notice of forfeiture, in accordance with the law which is made controlling by provisions of the policy."5

Where the insured accepted a certain sum in compromise of his claim, which was denied, he has the burden, in a subsequent action, to overcome the defense of compromise by convincing evidence

party executing the release. St. Louis & S. F. R. Co. v. Bruner, 61 Okl. 313, 161 P. 788.

When party having burden of proving title introduces in evidence duly acknowledged warranty deed, correct in form, the opposite party, who pleads lack of consideration, has burden of proving defenses. Jordan v. Jordan, 62 Okl. 171, 162 P. 758.

60 Parker v. Parker, 75 Okl. 234, 182 P. 697, 11 A. L. R. 720.

61 McCracken v. Travelers' Ins. Co. of Hartford, Conn., 57 Okl. 284, 156 P. 640.

62 Fidelity & Casualty Co. of New York v. First Bank of Fallis, 142 P. 312, 42 Okl. 662.

63 Western Nat. Ins. Co. v. Marsh, 125 P. 1094, 34 Okl. 414, 42 L. R. A. (N. S.) 991.

64 German-American Ins. Co. of New York v. Lee, 51 Okl. 28, 151 P. 642. 65 Jones v. New York Life Ins. Co., 122 P. 702, 32 Okl. 339.

that it was procured by fraud or that it was not his free and voluntary act.c

In an action on a policy requiring proofs of loss to be furnished within 60 days, evidence of the furnishing of such proofs is essential, unless the proofs have been waived."7

Where the plaintiff testified he furnished proof of loss in writing within the time required, and no evidence as to the proof was introduced, it will be presumed that it was sufficient.68

In action on fraternal benefit certificate, the plaintiff must prove reasonable compliance with requirements of association as to furnishing proofs of loss."9

§ 960.

Misrepresentation or breach

Contracts of fidelity insurance will be liberally construed to accomplish the purpose of indemnity for which they are made; and, where the defense is a breach of the warranty by the insured, the burden of proof rests upon the insurer to establish the allegations charging such breach.70

The burden of proving the falsity of statements of insured in his application for a policy which by the terms of the policy are made. warranties, and that a condition of the policy essential to its validity

6 Pacific Mut. Life Ins. Co. of California v. Coley, 62 Okl. 161, 162 P. 713. 67 Palatine Ins. Co. v. Lynn, 141 P. 1167, 42 Okl. 486.

68 German-American Ins. Co. of New York v. Lee, 51 Okl. 28, 151 P. 642. 69 Haskew v. Knights of Modern Maccabees, 58 Okl. 294, 159 P. 493. 70 Southern Surety Co. v. Tyler & Simpson Co., 30 Okl. 116, 120 P. 936. In an action on a benefit certificate, where liability was denied on the ground of a false statement in the application and plaintiff claimed that insured did not execute the application, defendant has the burden of proving insured's execution of the application and the falsity of the statement. Sovereign Camp of Woodmen of the World v. Hutchins, 60 Okl. 181, 159 P. 920. In an action on a life insurance policy, the burden is on the insurer to show a breach of insured's warranty that he had not had medical advice during the previous five years. National Union v. Kelley, 140 P. 1157, 42 Okl. 98.

The burden of proving the materiality of a misrepresentation or concealment in the application for insurance, as well as the fraudulent intention of the insured, is upon the insurance company, and is not shifted by showing that the insured made an untrue answer concerning other insurance. Owen v. United States Surety Co., 38 Okl. 123, 131 P. 1091.

has been violated by the insured is upon the insurer seeking to avoid the policy on such grounds.71

In an action on a life insurance policy where the defense is the suicide of insured, the burden of establishing suicide by a preponderance of the evidence is upon the insurer.72

Though the beneficiary forwarded an ex parte statement of an acting coroner that death of insured was suicide, it was not sufficient to cast on the beneficiary the burden of proving that the insured did not commit suicide.73

Where the constitution of a fraternal life insurance company provides that if a member holding a certificate becomes so far intemperate as to impair his health, or dies from disease resulting from his intemperate habits, the certificate shall be null and void, the burden is on defendant to prove that deceased was addicted to the use of injurious drugs mentioned in the policy to such an extent as to impair his health, or that he died because of his intemperate habits, and an instruction to that effect and also to the effect that defendant must show that deceased would not have died at that time "but for the impairment of his health," is not reversible error; the latter part of the instruction being descriptive of what is meant by impairment of health.

961. Indians

74

The burden of proof is on one who controverts the rights of an Indian to lands which have been allotted to him." 75

71 Capital Fire Ins. Co. v. Carroll, 109 P. 535, 26 Okl. 286. Under the statute providing that statements in an application for insurance procured without medical examination shall, in the absence of fraud, be deemed representations and not warranties, the burden is on the insurer to prove that such statements are willfully false or misleading. Continental Casualty Co. v. Owen, 38 Okl. 107, 131 P. 1084; American Bankers' Ins. Co. v. Hopkins (Okl.) 169 P. 489.

72 Modern Brotherhood of America v. White (Okl.) 168 P. 794, L. R. A. 1918B, 520.

73 Modern Brotherhood of America v. White (Okl.) 168 P: 794, L. R. A. 1918B, 520.

74 Woodmen of the World v. Gilliland, 67 P. 485, 11 Okl. 384.

75 Where, in ejectment of an allottee of the Cherokee Tribe of Indians, plaintiff, in support of her title, showed that the land was allotted to her, and such allotment is not denied, and her claim of possession is based on the allotment certificate, the burden is on defendant, who controverts plaintiff's

The burden is upon the Indian, asserting title to surplus lands which he had attempted to alienate, to show that the lands were not subject to alienation,70

§ 962. Statute of limitations

Where a petition or bill of particulars shows that the asserted cause of action is barred by limitations, and the statute is pleaded as a defense, then the burden is on plaintiff to prove facts relieving the action from the bar of the statute; " but in an action on a note where the defendant pleads limitations, without denying the execution of the note, the burden is on him to make a prima facie case.78

77

rights thereunder. Denver, W. & M. Ry. Co. v. Adkinson, 119 P. 247, 28 Okl. 1.

In ejectment by an allottee of the Chickasaw Tribe of Indians, where plaintiffs show that the lands in controversy were allotted to them and certificates of allotment issued to them therefor, and that said certificates have never been canceled, and where defendant's only defense to the action is that their grantor selected said lands as his allotment before the same were allotted to plaintiffs, but admit that the selection of said lands as allotment for their grantor has been canceled by the Secretary of the Interior, the burden is on defendants to show the order of cancellation invalid in order to overcome the presumption of plaintiffs' right to possession of the lands arising from the certificates of allotment to them, and obtaining by reason of section 23 of the Supplemental Treaty with the Chickasaw and Choctaw Tribes of Indians (32 Stat. 644). Sorrels v. Jones, 110 P. 743, 26 Okl, 569.

76 In a suit to quiet title by a three-fourth Creek Indian enrolled on June 20, 1899, as of 11 years, who received an allotment which he mortgaged on September 30, 1915, the burden of proving that surplus lands were not subject to alienation was upon plaintiff, in view of Supplemental Creek Agreement June 30, 1902, § 16, and Act Cong. May 27, 1908, restricting alienation. Gum Bros. Co. v. Morton (Okl.) 175 P. 350.

Torrey v. Campbell (Okl.) 175 P. 524.

Where the issue framed is the statute of limitations, and whether the debt has been taken out of the statute by a part payment, the burden of proof is on plaintiff to show, not only that payment was made by the maker to the payee, but that it was intended as a payment upon the identical note upon which the action has been brought, Easter v. Easter, 24 P. 57, 44 Kan. 151. Where a defendant, as a defense to an action arising in another state, avers that he came into this state more than three years prior to the commencement of the suit, the burden is upon him to maintain the plea. Smith-Frazer Boot & Shoe Co. v. White, 51 P. 790, 7 Kan. App. 11.

18 Bradford v. Brennan, 12 Okl, 333, 71 P. 655.

(860)

§ 963. Damages

In an action for damages, the burden of establishing the amount thereof sustained always rests upon the plaintiff, unless the defendant specifically admits such amount in his answer; and, where no such admission is contained in the answer, it is error for the trial court to require defendant to assume the burden of proof.""

The burden of proving mitigation of damages is on the party guilty of the wrong.80

In order to warrant a verdict for future pain, where the injury is subjective, there must be evidence by an expert witness that plaintiff, with reasonable certainty, will experience future pain as a result of the injury; but if the injury is objective, and it is plainly. apparent that the plaintiff must undergo pain in the future, the jury. may infer that fact from proof of the injury."1

§ 964. Malicious prosecution

The plaintiff in an action for malicious prosecution has the bur den of proving that the prosecution complained of has finally ter minated in his favor,82 and that there was a want of probable

79 Smock v. Carter, 50 P. 262, 6 Okl. 300.

In an action for breach of warranty, the buyer must prove the breach and amount of damages. Spaulding v. Howard, 51 Okl. 502, 152 P. 106.

A lessor, claiming, as damages for failure of lessee on demand to execute release of forfeited oil and gas lease, his loss on an alleged contract for sale of a lease on the same land, must prove either that he had a valid contract, or that the prospective purchaser would have completed the contract, regard less of its enforceability. Rogers v. Milliken Oll Co., 62 OkL 147, 161 P. 795. 80 Sackett v. Rose, 55 Okl. 398, 154 P. 1177, L. R. A. 1916D, 820, Burden is on railroad, in action for personal injuries, to show damage could have been reduced by ordinary care. Missouri, K. & T. Ry. Co. v. EA. monds (Okl.) 174 P. 1052.

The burden of reducing the damages by proof that plaintiff could have ore tained other employment is on defendant. Ditzler Dry Goods Co. v. Handere, 44 Okl 678, 146 P. 17.

* Muskogee Electric Traction Co. v. Doss, 38 Okl. 24, 138 P. 94.

* Patterson v. Morgan, 53 Okl. 95, 155 P. 1.

# Jones Leather Co. v. Woody (Ok) 1% P. 878; El Reno Gas & Estric Co. v. Spurgeon, 30 Okl. 88, 118 P. 397; Sima v. Jay, 53 Okl. 188, 155 P. 615; Herrick v. Devorak, 56 Okl. 489. 155 P. 1133.

Where a United States commissioner decharges accused, and the jury in dits him, these two facts netralize each other, and plaintiff, to wait ti case must produce other evidence of want of provable are Landwy 7. Cooch., & P. 973, 22 OKL. 4. 18 Ann. Cat. 9).