tween the time of weighing it and hauling it for shipment, such keeping being a necessary incident of the business in which the keeper makes a profit, constitutes him a bailee for hire, although he may not have received any compensation for the actual storage. (Syllabus by the Court) Opinion of the Court by KANE, C. J. LULA KEEL, Plaintiff in Error, vs. D. W. INGERSOLL, Defendant in Error. (Rendered Nov. 11th, 1909.) Error from District Court of Marshall County. Hon. D. A. Richardson, Trial Judge. No. 315 Affirmed Under section 4402, of the laws of Arkansas, in force in the Indian Territory prior to statehood, which provides that, "Every mechanic, builder, artisan, workman, laborer or other person who shall do or perform any work or labor upon or furnish any materials, machinery or fixtures for any building, erection or other improvement upon land, * shall have for his work or labor done, or materials, machinery or fixtures furnished, a lien upon such building, erection or improvement and upon the land belonging to such owner or proprietor on which the same is situated, to secure the payment of such work or labor done, or materials, machinery or fixtures furnished," where the land was inalienable on account of being the homestead allotment of the lienor, a mechanic's lien for materials furnished for the erection of buildings thereon, attached to such buildings separate and apart from the lands. (Syllabus by the Court) Opinion by KANE, C. J. CHICAGO, ROCK ISLAND & PACIFIC RY. CO,, VS. No. 136 FRITZ WHERMAN, Defendant in Error. (Rendered Nov. 9th, 1909.) Error from District Court of Garfield County. Hon. M. C. Garber, Trial Judge. Reversed and Remanded with Instructions. The common law liability of a carrier for the safe carriage of property may be limited by a special contract with the shipper (executed in October, 1904), where such contract is supported by a consideration, is reasonable, and fairly entered into by the shipper and does not attempt to cover losses caused by the negligence or misconduct of the carrier. 2. It is not negligence for the shipper of livestock, who, under a special contract, accompanies same during transportation for the purpose of feeding, watering, loading and unloading, and taking care thereof, not to remain in the car with the livestock while the train is in motion in order to prevent or extinguish any fires that may occur in the car when the contract provides that the shipper or his agent, accompanying the livestock shall remain seated in the caboose car attached to the train while the train is in motion. 3. A special contract executed between a carrier and a shipper in consideration of a reduced freight rate providing that in case of total loss of any of the livestock covered by the contract, the liability of the carrier shall not exceed a maximum valuation of the livestock stipulated in the contract, is not a contract attempting to exempt the carrier from liability arising from its own negligence and where the contract is reasonable and just and has been fairly entered into by the shipper, the same will be upheld by the court as a proper and lawful man ner of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives. 4. Such a contract is not in violation of section 706 of Wilson's Revised statutes, 1903, forbidding a common carrier to contract to exonerate itself from liability for gross negligence. 5. Where excessive damages have been allowed under an erroneous instruction, if the amount thereof can be determined and segregated from the verdiet, a new trial will not be granted unless the plaintiff refuses to remit the excessive part of the verdict. (Syllabus by the Court) Blake & Blake, and Lowe & Lowe, Attorneys for Plaintiffs in error. ED BARKER, Plaintiff in Error. VS. MARY J. BARKER, Defendant in Error. (Rendered Nov. 9th, 1909.) Error from District Court of Osage County. L. N. Poe, Trial Judge. No. 251 Reversed and remanded. 1. In an action for divorce where the cause of action is predicated upon extreme cruelty for conduct other than physical violence, either actual or threatened, it is not sufficient that there should simply be danger that such conduct operating through the mental faculties may produce injury or bodily hurt to the physical system but it must be shown that such in fact is the effect or at least that such effect is to be reasonably apprehended as imminent as a result thereof. And to entitle a party to the remedy of divorcement on the ground of extreme cruelty it is not enough that the grounds be the result of incompatibility of tastes or temperament or estrangement produced by differences of opinion and conduct growing out of the administration of household affairs, as those must be endured along with the other minor misfortunes of life; they are the things which under the law parties who marry take into consideration on entering matrimony, and divorce will no be granted on their account. The remedy of absolute divorce is an extraordinary remedy for evils which are unavoidable and unendurable and which cannot be relieved by any proper and reasonable exertion of the party seeking the aid of the courts. 2. Husband and wife are bound to exercise greater efforts for removing misapprehension, allaying qurrels, smoothing the road to concord and effecting reconcilliation than are people in other relations of life. The marriage status is not a mere contract status, in which each of the parties may be justified in demanding the strict letter of the bond. It is a status wherein the law operates upon the weakness as well as the strength of human nature, and it will not be dissolved except for grave and substantial causes. (Syllabus by the Court.) Opinion of the Court by DUNN, J. FORT SMITH & WESTERN RAILROAD COM- Vs. CHANDLER COTTON OIL COMPANY, No. 224 A Corporation, Defendant in Error (Rendered November. 9th, 1909.) Error from District Court of Lincoln County. Hon. John H. Burford, Trial Judge. Affirmed 1. The Inter-state Commerce Commission prior to the amendment of the act under which it operated on Aug. 28, 1906, had no jurisdiction to fix or adjust charges or rates on shipments, the carriage of which was wholly within a Territory. 2. In an action brought to recover money paid a railroad company for unreasonable charges for transportation, plaintiff's petition alleged, the distance from the point. where the shipment started to the point where it . ended, and averred that a certain sum was a reasonable compensation for carrying the commodity involved over the line of the company that distance, and charged that the defendant wrongfully and without authority of law charged plaintiff for the transportation a different and larger sum, stating it, more than a reasonable charge, and that plaintifi was compelled to pay the same which it did under protest, and that it had never in any way consented that the charge exacted was a reasonable one but on the contrary had demanded the return of the excessive and unreasonable part of said charge which had been by the defendant refused. To this petition a general demurrer was filed which was by the court overruled. HELD, not error. 3. In an action tried to a jury where the court hears all of the evidence offered by the different parties and fairly instructs the jury on the law applicable to the case and a verdict is returned within the issues and is reasonably supported by the evidence, the same will not be disturbed on appeal. (Syllabus by the Court) Charles E. Warner, and Dale & Bierer, Attorneys for plaintiff in error. Flynn & Ames, Attorneys for defendant in error. Opinion of the Court by DUNN, J. ANZLEY ELLIS, as Sheriff of Day County, Territory of Oklahoma, et al., Plaintiff in Error, VS. G. M. SMITH. Defendant in Error. (Rendered Nov. 11th, 1909.) No. 274 Error from District Court of Day County. John L. Pancoast, Trial Judge. Affirmed. Under that part of section 11, of chap. 1, of the laws of 1903, which provides, "The owner of any stock or |