Other courts have extended the exception only to those infants of tender years who do not possess sufficient intelligence and understanding to be able to comprehend and comply with the requirements of the statute. ( Lazich v. Belanger, 111 Mont. 48 [ 105 P.2d 738]; City of Tulsa v. Wells, 79 Okla. 39 [ 191 P. 186].) Still a third view is taken by the New York courts.

In certain jurisdictions it is held that, pending an appeal, a judgment lacks that character of finality which is requisite to constitute it an estoppel. City of Tulsa v. Wells, 79 Okla. 39, 191 P. 186, 191; Pellissier v. Title Guarantee T. Co., 208 Cal. 172, 280 P. 947, 951; Jennings v. Ward, 114 Cal.App. 536, 300 P. 129, 130; Robinson v. El Centro Grain Co., 133 Cal.App. 567, 24 P.2d 554, 556; Brown v. Campbell, 100 Cal. 635, 35 P. 433, 38 Am. St. Rep. 314; Naftzger v. Gregg, 99 Cal. 83, 33 P. 757, 37 Am. St. Rep. 23; Vance v. Heath, 42 Utah, 148, 129 P. 365, 367; State Bank of Sevier v. American Cement P. Co., 80 Utah, 250, 10 P.2d 1065, 1069; State Life Ins. Co. v. Wilson (Tex.Civ.App.) 57 S.W.2d 355, 357-358; Fidelity Union Cas. Co. v. Hanson (Tex.Com.App.) 44 S.W.2d 985, 987; Mente Co. v. Anciens Etablissements V. — D. Cie, 177 La. 829, 149 So. 492; McCusker v. Commonwealth Cas. Co., 106 N.J. 116, 148 A. 897; State v. Schmoll (Mo.App.) 37 S.W.2d 972; Smith v. Lathrop, 44 Pa. 326, 84 Am. Dec. 448; Delk v. Yelton, 103 Tenn. 476, 53 S.W. 729; Southern Railway v. Brigman, 95 Tenn. 624, 32 S.W. 762; Souter v. Baymore, 7 Pa. 415, 47 Am. Dec. 518; Bryar v. Campbell, 177 U.S. 649, 654,

6 ( 81 P.2d 397) (failure to meet statutory notice requirement does not bar plaintiff; "we are inclined to adopt what we conceive to be the more reasonable and humane rule, also approved by respectable authority, to the effect that under proper circumstances of mental and physical incapacity, giving of notice is excused, the question as to the sufficiency of the circumstances to work such excuse properly to be submitted to the jury, as was done here."); Forsyth v. City of Oswego (1908), 191 N.Y. 441, 444 ( 84 N.E. 392, 123 Am St Rep 605) ("If the plaintiff was, as he claimed, physically and mentally unable to prepare and present his claim, or to give directions for its preparation and presentation during the whole of the three months within which he was required by the defendant's charter to present it, then he was entitled to a reasonable additional time in which to comply with the charter in that regard. This is because the law does not seek to compel that which is impossible"); and City of Tulsa v. Wells (1920), 79 Okla. 39, 47 ( 191 P. 186) (cited, with approval, jury instruction that "if you should find and believe from a fair preponderance of the evidence that the plaintiff was of such immature age or that his mental or physical capacity was so impaired by the alleged injury complained of that he would not be of such mental or physical capacity to seek to know his rights or understand them if stated to him or apprehended the need of searching out or enforcing his legal remedies or if his mental capacity was such that he would not be reasonably expected to take any step to ascertain what his rights were, then in such event he would be excused from giving the notice required by the charter so long as such mental or physical incapacity existed or until a guardian was appointed for him"). See, also, Schulstad v. City and County of San Francisco (1946), 74 Cal.App.2d 105 ( 168 P.2d 68); City of Waxahachie v. Harvey (Tex Civ App 1953), 255 S.W.2d 549; City of Miami Beach v. Alexander (Fla, 1952), 61 So.2d 917;

IX. The ordinance also void because unreasonable. Born v. Spokane, 27 Wn. 719, 68 P. 386; Hanks v. City of Port Arthur (Tex.), 48 S.W.2d 944; Tulsa v. Wells, 79 Okla. 39, 191 P. 186; Secs. 14, 24, 31, Constitution 1890; 37 Am. Jur., Municipal Corporations, Sec. 157. X. The ordinance was waived in the trial.

4. Damages — New Trial — Excessive Damages. A verdict will not be set aside for excessive damages unless it clearly appear that the jury committed some gross and palpable error or acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of law by which damages are regulated. City of Tulsa v. Wells, 79 Okla. 39, 191 P. 186. (Syllabus by Threadgill, C.)

The rule announced in Northup v. Eakes, supra, was reiterated in Walters v. Prairie Oil Gas Co., 85 Okla. 77, 204 P. 906, 908, and Tidal Oil Co. v. Pease, 153 Okla. 137, 5 P.2d 389, 391, and followed in Padgett v. Chicago, R.I. P. Ry. Co., 10 Cir., 54 F.2d 576. The same principle was applied in Watson v. Chevrolet Motor Co. of St. Louis, 8 Cir., 68 F.2d 686. See, also, Hunt v. Rowton, 143 Okla. 181, 288 P. 342, 344; Missouri Motor Distributing Co. v. Barker, 170 Okla. 183, 39 P.2d 544. In City of Tulsa v. Wells, 79 Okla. 39, 191 P. 186, 191, the court quoted with approval from Gould on Pleadings, 6th Ed., 390, as follows: "If several persons join in committing a trespass, or tort of any kind, the party injured may generally, at his election, sue them all jointly * * *." See, also, Avery v. Wallace, 98 Okla. 155, 224 P. 515, 517; Padgett v. Chicago, R.I. P. Ry. Co., supra.

We think the plaintiff was right, as we understand the pertinent decisions. Northup v. Eakes, 72 Okla. 66, 178 P. 266; City of Tulsa v. Wells, 79 Okla. 39, 191 P. 186; Cain v. Quannah L. I. Co., 131 Okla. 25, 267 P. 641; Hunt v. Rowton, 143 Okla. 181, 288 P. 342; Tidal Oil Co. v. Pease, 153 Okla. 137, 5 P.2d 389, 391; Morgan v. Hines (D.C.) 260 F. 585; Centerville State Bank v. National Surety Co. (C.C.A.) 37 F.2d 338; Padgett v. Chicago, R.I. P.R. Co. (C.C.A.) 54 F.2d 576, 577. In the Pease Case, quoting from 38 Cyc. 488, it was said that "to make tort-feasors liable jointly there must be some sort of community in the wrong-doing, and the injury must be in some way due to their joint work, but it is not necessary that they be acting together or in concert if their concurring negligence occasions the injury."

) In Oklahoma, an issue on appeal is not considered to be a "valid and final" judgment. See Coppedge v. Clinton, 72 F.2d 531 (10th Cir. 1934); City of Tulsa v. Wells, 1920 OK 234, 191 P. 186. As such, this Court finds collateral estoppel does not apply.

Plaintiff's counsel relies upon two cases to support his position that a pending appeal from a prior judgment suspends the operation of a plea of res judicata. These cases are City of Tulsa v. Wells, 79 Okla. 39, 191 P. 186; and Coppedge v. Clinton (C.C.A.10) 72 F.2d 531. The latter case was one in which the court considered the conclusiveness of an Oklahoma judgment from which an appeal was pending. The court reached the conclusion that under the Oklahoma law a judgment was not conclusive pending an appeal.

It is the satisfaction of the prior judgment which acts as a bar. Tulsa v. Wells, 191 P. 186 (Okla. 1920). Satisfaction of the federal court judgment did not occur until after jurisdiction over the cause in Brigance I had been transferred to this Court on appeal. The opinion in Brigance I was filed on July 8, 1986, and the satisfaction of the federal court judgment was then for the first time raised here by the defendants' petition for rehearing.