text:
    Evans v. Seiz.
    4-3363
    Opinion delivered February 12, 1934.

      W. D. Swaim, for appellant.

      A. D. Shelton, for appellee.
   Butler, J.

M. O. Evans, the appellant, sued Bill Seiz, the appellee, in the justice'of the peace court for tearing down some signs he had erected along the highway on property belonging to the Gillham estate, and laid his damage in the sum of $45, which amount he recovered in that court. The case was appealed to the circuit court, where evidence was adduced on behalf of Evans tending to show that he had obtained permission from Mrs. Gillham to nail a sign on an old log truck near her premises; that he noticed one day that his sign was gone. He had a similar sign made and put on the truck, and this one was also torn down. Then he asked Buddy Gillham if he tore it down, and Buddy said, “No,” and that it would be all right' to put another back. Evans then had an iron sign made and firmly affixed it to the truck with eight-inch rivets, and this sign, too, was removed. He then went to Buddy Grillham and said,‘‘ Bud, I believe you know who is tearing those signs down,” and Bud answered, “I believe Bill Seiz is doing it.” Evans then called Bill Seiz over the telephone and he admitted that he, or his agents, had removed the signs, but refused to pay for them.

On the witness stand Bill Seiz admitted that his agents had torn down these signs at his direction; that he had had a contract from year to year before the death of Mr. Gillham for the exclusive right to post signs on the Gillham property, and after Mr. Gillham’s death he had made a like contract with Bud Gillham, the son of Gillham, deceased, and Mrs. Gillham, his widow; that he had given general directions to keep the premises clear of signs except his own, but that he had no actual knowledge of the removal of the first two signs belonging to Evans, and if he had he would have called it to Evans’ attention and requested him to stop putting them up.

Buddy Gillham and Mrs. Gillham testified, corroborating the testimony of Bill Seiz. Bud stated, in addition to what he said in corroboration of the testimony of Seiz, that he told Evans when he first tallied of putting up a sign that it would be all right if it was all right with Bill; that he would have to get Bill’s permission. The testimony was to the effect that the contract between Bill Seiz and the Gillhams was an oral one, renewed from year to year.

The court submitted the case to the jury on the theory that the owners of the Gillham estate had the right to enter into a contract with Seiz, giving him the exclusive use of the property for the placing of signs or other advertising matter, and if he had such a contract and Evans, without his permission, placed his own signs thereon, Seiz had a right to remove them, and Evans therefore would not be entitled to recover damages because of the removal of the signs. The only objection interposed to this instruction was made by the attorney for the plaintiff: “I would like,to request a modification of one of the court’s instructions there — there is no lease of record to Bill Seiz.” The court then stated he thought the instruction sufficiently stated the law, whereupon, Mr. Swaim, the attorney, objected and excepted, “on the grounds that no mention was made to plaintiff of defendant’s rights as lessee, and, unless the jury finds that the plaintiff had knowledge of the lease between the GHilham estate and the defendant as lessee, their verdict should be for the plaintiff.”

The contract was shown to have been one to be performed within a year from its making, and was renewed from year to year, and it therefore was not necessary that it be in writing to be valid, nor was it necessary that the plaintiff be given notice that it had been made. We are of the opinion that the objections raised to the declarations of law are not tenable, and, as this is the sole ground upon which plaintiff bases his contention for reversal, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Preas v. Preas.
    4-3349
    Opinion delivered February 12, 1934.

      Martin, Wootton & Martin, for appellant.

      Murphy Wood, for appellee.
   Butler, J.

Dr. Hugh L. Preas, the appellee, brought this suit against his wife, Louise Lamb Preas, the appellant, on the 25th day of January, 1933, in the Garland Chancery Court. The complaint alleged grounds for divorce, to which the proof was directed, that his wife, immediately after marriage, “began a course of cruel and barbarous treatment towards him and continued such treatment, and offered such indignities to his person, as to render his condition intolerable, and that he, as a result thereof, was no longer able to live with her; * * * that she treated him with unmerited reproach, rudeness, contempt and open insult, habitually and systematically pursued, and that such conduct on her part rendered his condition in life intolerable, all without fault on his part.” He prayed for a decree of absolute divorce, which prayer was granted by the chancellor .upon a hearing of the case. .Prom that decree is this appeal.

The contention of the appellant is that the proof fails to establish the grounds of divorce alleged. The appellee argues to the contrary, and further states as ground for affirmance that, from the decree, it appears that the testimony of a witness taken orally in open court was not.preserved and incorporated in the transcript of the testimony, and that therefore the conclusive presumption follows that the evidence contained in the testimony of that witness must be deemed sufficient to sustain the findings and decree of the trial court.

There is presented for our consideration a record containing 760 pages of typewritten matter, most of which preserves the testimony of the witnesses, with the exhibits offered as part of the evidence. Prom the evidence, certain facts are proved about which there is no dispute, aud which are important in determining the main question presented in the case.

Dr. Preas and his wife, Louise, were both reared in Johnson 'City, Tennessee, a small city, we are informed, of not more than 5,000 inhabitants, one of those towns where everybody knows everybody else, and all their virtues or their vices. Both parties to this litigation were members of prominent families who had resided in Johnson City for many years. They were of equal social rank and universally regarded with esteem. Preas began to pay attention to Louise Lamb when she was a mere girl of not more than fifteen or sixteen years of age. He was perhaps ten years older than she. Prior to their marriage he had been a frequent visitor at her home and had paid her marked attention for at least a year and a half or two years. During this time she paid no attention to any other man and gave to Preas her full confidence and -love, and he seemed to be devoted to her. He had the entree into her home at all times and enjoyed the perfect confidence of her father and mother.

Dr. Lamb, the father of Louise, was a retired physician, and about the time of the marriage was past fifty-five years old, and an invalid. Louise was a member of, one of the churches of the city, in which she took a prominent part and was regarded with favor by the inhabitants of the little city. Preas appears to have also been regarded generally asa man of honor. He and Louise were married in the State of Tennessee on September 15,1932, at which time Dr. Preas must have been about 28 years old and Louise about eighteen, if that old. After the marriage she stayed in the home of her parents for a few days, when Preas took her and established her in a hotel in a town nearby. He is a dentist, and continued to practice his profession in Johnson City. She remained in this hotel but a very short time, when Preas secured board for himself and wife in Johnson City, at the boarding house of a Mrs. Crockett. They remained there until about the 22d day of November, when Preas informed his friends that he was going to New York to enter the sanitarium of his brother, a physician residing in that city. He gave the sanitarium as his forwarding address, and liis mail was sent there. Instead of going to New York, however, he went directly to Hot Springs, Arkansas, and his mail was forwarded to him at Hot Springs from New York. It was his admitted purpose to establish a residence in Arkansas in order to take advantage of its ninety-day divorce law, and to bring this suit.

The greater part of the testimony was directed to the association of Preas and Mrs. Preas previous to their marriage, and to the events leading up to and bringing about the marriage on September 15th. This testimony we do not detail for the reason that it is immaterial and incompetent, except as it tends to explain the subsequent conduct of the parties. The testimony of Preas is to the effect that he was forced into marrying Louise Lamb by her father, who put him in fear of suffering bodily violence, and.that he was falsely accused of improper conduct with Louise. These contentions of Preas are contradicted by the evidence adduced by his wife, the effect of which is that, when reproached for his conduct, Preas acknowledged his illicit relations with her, pleaded their approaching marriage, and that he was not threatened with any personal violence, but knew that he had violated the criminal statutes of the State of Tennessee and of the general government, and that he was liable to prosecution. About three or four days after this the marriage took place in the presence of the father of Preas and of Mrs. Lamb, the father of Louise not being present.

The evidence is undisputed that, while Preas and his wife were living in the boarding house, they both seemed unhappy. The girl was sick much of the time and was frequently seen in tears. Preas often took his meals away from the boarding house, and on occasion would leave his young wife alone and spend his week-ends away without her knowing where he was. From the date of his marriage until his clandestine departure from the State of Tennessee, he neglected his wife, gave her no presents or furnished her any money during the entire time. The extent to which his care extended was only to provide her a shelter and food. These facts, coupled with what happened just before the marriage, which we have related, viewed either as contended for by Preas or as testified to by Ms wife and her parents, to onr minds result in but one just inference, that is, when Preas married he never intended to conform to, and abide by, his marriage vows, whether they were taken because he was wrongfully accused of misconduct and threatened with personal violence or whether because he feared the penalties of the laws which he had violated.

Preas’ sole ground for divorce is based on the allegations which we have quoted. We summarize and state his testimony tending most strongly to support these. It is to the effect that he told Louise that he did not have enough money, and did not see how they could get by on what he had and was making*; that a few days after they moved to Mrs. Crockett’s boarding house he saw his wife on the street one day with her mother; that he asked her later why she was with her mother, and she denied that she had been with her mother or that he had seen her; that several days later the mother came to the house and stayed with his wife most of the day; that the next day she came over again, and did so for three days while his wife stayed in bed complaining that she was sick and of having pains in her stomach, being nauseated and not able to be up; that at night, after they had retired, she would pinch and Mt him so as to keep him awake, and that this caused him to get nervous and run down; that one night he told her that he was going to his father’s home to get some sleep, and he did go, and was informed that on that night his wife began to call about 11:00 o ’clock over the telephone, and called about every fifteen or twenty minutes, saying she was sick and couldn’t sleep and wanted some one to see her or for a doctor to come; that his brother, Dr. William Preas, went over and gave her some medicine; that she would frequently come to his office and argue with Min as to where he had been and would come back again within an hour or so “and start fussing again”; that she came in about three or four times in one day, and that night she kept him awake by hitting, biting and smacMng him; that when hé would get to sleep she would hit and pinch him, or do something else, and that she did this all .the time they were at Mrs. Crockett’s.

Witness said, “I got to where I was almost afraid of her. At times she would threaten to kill herself, and she had left me with the impression that when she did kill herself she would probably kill me, and I was afraid she would kill both of us. I had no peace of mind or body during the entire time I lived with her. ’ ’

In corroboration of this testimony, Preas offered the depositions of Mr. and Mrs. Crockett and of a Miss Willie May White, his bookkeeper and office assistant, and Dr. Wm. Preas. Mrs. Crockett stated that Dr. Preas had' paid board for himself and wife; that he did not take his meals regularly at her place; that “Dotty” (the name Preas was known by) was nervous and pale, and that he and his wife were indifferent toward each other, but they went out together some; that Dr. Preas spent some weekends at her house with his wife and some he spent away; that she didn’t really know whether most of his weekends were spent "with his wife or away from her; that, while Dr. and Mrs. Preas boarded at her house, Mrs. Preas was nervous and hysterical at times and cried a great deal; that witness called Dr. Preas several times for his wife when she was sick, and that her mother came over to see her when she was siok. On cross-examination, in speaking of seeing Mrs. Preas crying often, witness said: “We all cry sometimes, especially if our wives or husbands would leave us.”

Mr. Crockett made about the same statement, but ventured the opinion that Dotty seemed to be a nice fellow, but that something was on his mind, and that he never saw the two 'kiss each other.

Miss White, Dr. Preas’ office assistant, testified that, after his marriage, he seemed nervous, worried, pale and not able to attend to his patients at times; that he was not this way before his marriage; that the doctor’s wife came to the office frequently and also called frequently over the telephone.

Dr. William Preas, testifying as to matters coming under his observation after the marriage, stated that his brother looked worried; that Louise would call for him at the Preas home four or five times, and one night he was called four or five times to come to see her; that she was having nervous convulsions, and, when he reached her, he found her nervous and hysterical. “On some of these occasions, my brother would be there, and at other times not.” In speaking of his brother’s physical condition, he stated that it was bad, that he was nervous, restless, had lost weight and that he would come sometimes to their home in the afternoon and sleep.

Other witnesses for the appellee testified as to his general reputation, and that it was good.

It will be observed that the appellee’s testimony is corroborated only as to the telephone calls and visits to his office, and that the personal indignities which he says he endured at the hands of his wife find no corroboration in the testimony of any witness. In order to justify a decree for divorce, it is a familiar rule that a decree will not be given on the uncorroborated testimony of a complainant.

It is the contention of the appellee that we must conclusively presume that his testimony is sufficiently corroborated to sustain the decree because it shows that a witness, one D. W. Parker, gave oral testimony in open court, and, in support of this contention, cites our rule stated in Hardie v. Bissell, 80 Ark. 74, 94 S. W. 611; St. L., I. M. & S. R. Co. v. Bright, 109 Ark. 4, 159 S. W. 33; Harmon v. Harmon, 152 Ark. 131, 237 S. W. 1096; Langston v. Hughes, 170 Ark. 272, 280 S. W. 374, and in numerous cases, that, where some of the testimony before the chancellor has not been brought into the record, this court must presume that such testimony was sufficient to sustain the decree.

"We adhere to this rule, which was early announced and has been consistently followed, but it has no application to the facts in the case at bar. It might have been, and, as we shrewdly suspect, that the evidence of Parker related only to the residence of the appellee in Hot Springs, but, if it went to the merit of the case, given its greatest value and strongest probative force in favor of the appellee, it could only go to corroborate his testimony as to the alleged indignities he suffered. By no stretch of the imagination could this witness be presumed to know more about what occurred in the privacy of the room of these married persons than the husband himself. Therefore, taking the testimony of Preas as literally true and fully corroborated by the testimony of Parker, it still does not sustain the allegations of his complaint, or make out a case for divorce under the 5th clause of § 3500 of Crawford & Moses’ Digest, which reads as follows: “Where either party shall be addicted to habitual drunkenness for the space of one year, or shall be guilty of such cruel and barbarous treatment as to endanger the life of the other, or shall offer such indignities to the person of the other as shall render his or her condition intolerable.”

In the early case of Rose v. Rose, 9 Ark. 507, the rule was laid down that, before this statute could apply, the conduct of the offending spouse must have been of such nature as to connote settled hate and a plain manifestation of alienation and estrangement, and must have been conducted habitually and continued through a period of time sufficient to show that conduct arose through settled malevolence and exerted to an extent as to render it impossible to discharge the duties of married life, resulting in such anguish of spirit as to make one’s condition in life intolerable. The statute was an extension of the law as it then existed, and the court reluctantly recognized that extension.

In the case of Kurtz v. Kurtz, 38 Ark. 119, the court, adverting to the case of Bose v. Bose, supra, and discussing its interpretation of the statute, said: “It must be confessed that this position goes to the very verge of safety, and should be pressed no further. In applying it, the chancellors should act with great caution to avoid the gradual approach, by imperceptible steps, to the practice of holding all matrimonial bickerings by which parties may render each other unhappy, to be valid grounds of divorce. Where there are no fixed and well-defined barriers of principle, it is difficult to limit the encroachment of precedents, setting in one direction. Each so nearly supports the next that, before one is aware, the bounds of reason are passed. ’ ’

In numerous cases following we have adhered to the limitations of the rule as suggested in Kurtz v. Kurtz, supra. In Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1, the following language is used: “So it may be said that the remedy of absolute divorce contemplated by this clause of our statute is for evils which are unavoidable and unendurable, and which cannot be relieved by any exertions of the party seeking the aid of the courts. ’ ’

In Pryor v. Pryor, 151 Ark. 150, 235 S. W. 419, one of the grounds for divorce was the same as in the instant case, and the court, in passing on the sufficiency of the evidence to support it, concluded that, if the testimony of the complainant as to this ground was undisputed, it does not establish that there was any* settled hate or any condition of enduring alienation and estrangement. We have many cases which follow and approve the rule announced. Among these are Arnold v. Arnold, 115 Ark. 302, 170 S. W. 486; Poe v. Poe, 149 Ark. 62, 231 S. W. 198; Scales v. Scales, 167 Ark. 298, 268 S. W. 9. The reason for the rule that the indignities must be so grave and so long continued as to go beyond the reach of mutual forbearance or forgiveness is that, not only the parties themselves, but society, has an interest in the maintenance of the marriage tie and the evils to be anticipated from granting divorces, except for the gravest reasons, should compel the persons to conciliate each other and suffer long before an attempt to sever the bonds of matrimony. In Pryor v. Pryor, supra, it is said: “Marriage vows are solemnly assumed, and should be sacredly kept. The interests of society demand that the bonds of wedlock should not be severed except upon clear proof of one or more of the grounds prescribed by our statute.”

In the case at bar, there is nothing* in the testimony of Preas tending to show that the acts of his wife complained of arose from any fixed malevolence or settled hate, but the proper inference is that her conduct was occasioned by a physical and mental condition caused largely by his own acts. From the very nature of things, there could not have been a course of conduct continued for a period of time sufficient to warrant an invocation of the statute. It will be noted that only 67 days elapsed from’the date of the marriage until the appellee’s clandestine departure from his home and State for the purpose of bringing this suit. During that time it is not disputed that he spent a part of his week-ends away from his wife and practically all of his time during the day. Certainly, the interests of society demand that during a space of time so brief some duty would rest upon the husband to comfort an ailing wife, at least not to assume the right, because of her petulance through so short a period, to renounce, the most sacred of all contracts.

Appellee’s own testimony fails to bring his case within the rule we have cited, and, if it did, the evidence is clear that the appellee himself is not without fault. His neglect was sufficient, even in the mind of his landlady, to justify the tears of his young wife, and she had reason to expect some consideration. But she appears to have been ostracized by her husband’s family with the sole exception of his brother, Dr. William Preas. It is undisputed that during this time she was sick, and every principle of honor and fair-dealing should have impelled the appellee to make some effort to soothe and comfort her. Where parties are equally at fault, the right of divorce should be denied. Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659; Healy v. Healy, 77 Ark. 94, 90 S. W. 845; Malone v. Malone, 76 Ark. 28, 88 S. W. 840; Arnold v. Arnold, supra.

In determining, in any given case, whether the facts relied upon bring it within the statute, regard must be had to the peculiar circumstances of the case and the mental and physical condition of the party against whom complaint is made. This is recognized in the case of Meffert v. Meffert, supra, and, as we have seen, the condition of the wife, both as to her mental and physical state, was such as not to call for the coolness and neglect manifested by the appellee toward her, but rather for tenderness and forbearance.

We might add that the courts of Tennessee were open to this young man for redress of any grievance, and his surreptitious conduct and secret removal to this State to invoke the aid of' our courts implies that he desired to gain an advantage over his wife, and manifests to us that lie had little real confidence in the righteousness of his cause.

The decree of the trial court is reversed, and the case dismissed.


text:
    Ætna Life Insurance Company v. Person.
    4-3361
    Opinion delivered February 12, 1934.

      Owens & Ehrman, for appellant.

      Shaver, Shaver Williams, for appellee.
   Butler, J.

L. K. Person brought this suit to recover damages for total and permanent disabilities under the terms of an insurance contract issued by the .¿Etna Life Insurance Company. In the trial court he was awarded by a jury the sum demanded, and, from a judgment based 1 hereon, comes this appeal.

There is no dispute as to the existence of a valid insurance policy. It contained a clause providing for the payment of a monthly benefit in the event the insured should become totally and permanently disabled so as to prevent him from performing any work or conducting any business for compensation or profit. On this clause the suit is based, and the sole question for our determination is as to whether or not the condition of the insured brings him within the terms of this clause.

The policy was issued in 1924, and between that time and January 1, 1927, on a date not disclosed, it was discovered that the insured had contracted active tuberculosis. On the last-named date he notified the company of this, made claim for the disability benefits, and was paid the same from month to month until August 15, 1928, when the last monthly benefit payment was made, including the month ending September 15th, following. On August 15, 1928, the insured wrote the insurer to the effect that he was going back to work, and stated that when he wrote this letter he knew that on its receipt by the company no other monthly benefit payment would be made. Under the contract, the premiums were waived during the continuance of the disability of the insured, but after the 15th of August, 1928, he resumed the payment of the premiums so that the policy was in full force and effect on May 13, 1932. On that date he wrote a letter to the company telling of his having attended court and of hearing the trial of a certain lawsuit involving a claim for benefits for total and permanent disability under a contract similar to the one he had. He also referred to some cases which had been decided by the Supreme Court, and stated that he had reached the conclusion that he was then totally and permanently disabled, and had been so at all times since August 15, 1928, and was entitled to monthly disability payments from that time. The company disagreed with his contention, and he brought this suit.

At the close of the testimony, the defendant insurance company requested the court to direct the jury to return a verdict in its favor. The court denied this request. The refusal to instruct the jury as requested is the principal ground for reversal urged, and, in view of the conclusion we have reached, it is the only question necessary for us to determine. We must view the evidence in the light most favorable to the appellee, and give to it its strongest probative value, and, if there is any evideuce of a substantial nature to sustain the allegation of appellee’s complaint, the judgment must be affirmed.

It is admitted that, since August 15, 1928, appellee has been, and is now, able to do and perform many of the duties appertaining to the vocation in which, by training and experience he has been, and is now, engaged. But it is his contention that, notwithstanding this, he is totally and permanently disabled within the meaning of our cases. Those cited are: Missouri State Life Ins. Co. v. Johnson, 186 Ark. 519, 54 S. W. (2d) 407; Mo. State Life Ins. Co. v. Holt, 186 Ark. 672, 55 S. W. (2d) 788; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335. In these cases, and many others, we are committed to the doctrine that the clause in insurance policies relating to total and permanent disabilities which prevent the insured from engaging in any business for compensation or profit is not susceptible to the strict and literal construction for which the insurers have contended, but rather should have a liberal and rational interpretation so as to render effectual the purpose for which the insured entered into the contract, namely, to insure him. against those conditions which, under ordinary circumstances, would so disable the usual person as to prevent him from successfully engaging in an occupation for which he is fitted. To be thus totally and permanently disabled, the inability to perform any necessary act of the work is not required; the contingency contemplated is that, where the condition renders the insured unable to perform all of the essential acts of any calling, for which otherwise he might be fitted, in the usual and customary manner, then he is totally and permanently disabled within the meaning of the insurance contract.

The foregoing is the essence of the rule enunciated in the cases cited supra, by the appellee, and in Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457; Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 585; Mutual Benefit, etc., Ass’n v. Bird, Id. 445, 47 S. W. (2d) 812; Travelers’ Protective Ass’n v. Stevens, 185 Ark. 660, 49 S. W. (2d) 364; Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S. W. (2d) 433.

A comparison of the activities of the appellee prior to the time he contracted tuberculosis and those in which he has been engaged since August 15, 1928, shows no substantial difference, and is helpful in disposing of the question before us. The evidence is undisputed in all of its essential particulars, and, as related to the matters we are now considering, is derived from the testimony of the appellee himself, and of the witnesses introduced in his behalf. It shows that in 1914 he became the manager of an estate belonging to his mother, his two sisters and himself. This estate consisted of three farms, two situated above Garland City, and one below. The three farms contained a large acreage in cultivation. The appellee lived at Garland City, where, in addition to managing the estate, he conducted a mercantile, gin and cotton seed business. He had an assistant manager residing on one of the farms above Garland City and another manager living on the farm below. Appellee maintained general supervision of the three farms, and would sometimes ride horseback as much as forty or fifty miles a day. These activities were continued down to 1927, at which time he went to Texas for treatment for his disease and took “the rest cure” for about two years.

On or about August 16, 1928, appellee became- the OAvner of a hardware business in Garland City, which he conducted. This business proved unprofitable, and within a few months he closed it out. In the first part of 1929 the Person estate was divided, appellee receiving for his part about 650 or 700 acres of lands in cultivation. It was some distance from Garland 'City to this farm, and for that reason he built a home upon it and moved therein, and established a commissary there. About the time he took charge of the farm he derived from the division of the estate he purchased another farm, containing about 500 acres in cultivation. This farm, when purchased, was already rented out for the year 1929, and the tenants furnished themselves and attended to the selling of the cotton, sending to the appellee checks for the rent. During this year he went to this farm occasionally — he calls it the “upper place” — and farmed his lower place himself. On this place the commissary avrs built in the center of the field. He used an automobile, which he drove himself, in overseeing the making of the crop and during the picking season. He testified that he did not remember how often he went over the farm. In 1929, on his lower place, he raised over 400 bales of cotton. No mention is made of other crops that he raised. In 1980, on the upper place, he rented out approximately 175 or 200 acres and operated and furnished the remainder himself, comprising about 250 acres. He also attended to the farming operations on his lower place during that year. He estimates that the entire acreage he operated was about 800 acres. In 1931 he went ahead, cultivating about the same'acreage himself as in 1930. In that year he purchased two tractors to be used on his farms, which enabled him to reduce the number of tenants. In addition to his farming activities, and in connection therewith, he furnished his tenants and farm laborers from his commissary. He bought the merchandise, kept the books, knew how much each tenant owed, and decided how much he would furnish each one. He speaks of a Mr. West, who apparently worked for him, but whose duties ate not definitely stated further than that “a good deal of the management was left up to West,” upon whom appellee depended partly to keep check on picking, gathering and ginning of the cotton, and upon whose judgment he would sometime depend on letting tenants have supplies. Appellee kept clos’e track, however, of everything that was done.

In addition to the activities mentioned, appellee in 1930 and 1931, acted as a receiver for the Mid-South Cotton Association, which handled about five or six hundred bales in 1930 and a little less the next year. During these years, down to, and including, the cotton season of 1931-1932, appellee also classed and bought cotton. He began the study of law during his illness, and in January, 1933, was licensed to practice. At the time of testifying he had attended to a number of cases in the justice court, and had some cases pending in the circuit court of the county. At that time he had not opened an office at Texarkana, but intended to do so within a short time. Appellee is an educated man, having had seven years of college training.

Regarding Ms health during the time we have been discussing, appellee stated that he had an arrested case of tuberculosis; that the last time he had a temperature due to his tubercular condition was either in 1928 or 1929, but that he had not had a check-up by doctors since that time, and that, although he himself has technical knowledge, he has not made, since the time mentioned, any definite check-up on himself; that during the interval between the cessation of payment of disability benefits and his present demand he had been ill two or three times, probably with “flu” or some other minor illness, and had probably had Dr. Cook or Dr. Youmans come to see him; that he would occasionally, when he met doctors in a social way, get advice from them, but, as he had attended lectures on the subject of tuberculosis, he knew how to take care of himself. He stated that he had not ridden a horse in the management of Ms farms since 1928, but that he could still ride, and has no physical disability which keeps him from doing so; that at times he would run a small degree of temperature, but not sufficient “to knock him out”; that during the fall of 1932 he was knocked out on several occasions. He stated that in 1930 and 1931 he raised a considerable less amount of cotton than in 1929'; that the crop of 1932 was practically a failure because of a hail storm, but that during all these years he raised other crops than cotton, such as corn, hay, etc.

Several witnesses, neighbors, friends and kinsmen of the appellee, who were familiar with his activities during the years 1929-1931, inclusive, stated that, in their opinion, he could not do his work as he had before. One witness said he did not seem to be able to ride a horse or to superintend personally the operation of his farm. Several of these witnesses stated that they had seen from time to time physicians at the home of the appellee, but it appears they were not advised who these physicians were attending, whether the appellee or some member of his family, or from what ailment the patient was suffering.

Several physicians testified on behalf of the appellee, all of whom stated that he had an arrested ease of tuberculosis. This, as defined by one of them, is a condition where one who has had active tuberculosis becomes “free of all symptoms and evidence of the disease.” Dr. Decker Smith, called by the appellee, stated that a week or ten days before testifying he had examined the appellee and found the condition of arrested tuberculosis; that there were no symptoms of active tuberculosis at all, and that his temperature and pulse were normal; that appellee had told him that he had been pronounced well by doctors in the summer of 1928, and that, in witness’ opinion, appellee could go ahead in the general supervision of his farms, operate the commissary, look after his tenants and do that kind of work without harm to him. The other physician called by the appellee was Dr. Kosminsky, who stated that he had, within the year before testifying, examined the appellee and found that he had an arrested case of tuberculosis, and it would be questionable whether one who had led an active life managing a large plantation, riding 25 to 30 miles a day, would be able, after an active tubercular case had become arrested, to do that work again and follow it as he had done before. Witness stated that he had examined appellee on June 16, 1928, and had found no active tuberculosis present; that he had given a statement at that time containing the following: “I see no reason why he could not supervise and attend to ordinary business that requires no manual labor.” He stated further that, when he last examined the appellee, he found approximately the same condition as five years before, that is to say, he had an arrested case of tuberculosis. One other physician testified regarding appellee’s condition. He was called at the request of the appellant, and his statement as to appellee’s condition was practically the same as that of the other physicians whose evidence has been referred to.

The only claim made by the appellee as a reason for his contention that he is totally and permanently disabled was merely that he had at one time had active tuberculosis and that he now has an arrested case. But nowhere in the testimony is there any substantial evidence to the effect that appellee’s physical condition has prevented him from doing all the acts of his vocation in the usual and customary manner. It is true, the evidence indicates that he has occasionally been ill since August 15, 1928, but it is evident that these were only temporary indispositions and not connected with the disease from which he had suffered and which for a time had disabled him, and, notwithstanding the opinion of some of his neighbors and friends, the evidence is convincing that he has in fact managed his business with the same ability as before he was stricken with active tuberculosis. His vocation did not require any manual labor or extraordinary exertion. Whether or not he was able to ride horseback 25 or 30 miles a day is unimportant, since the evidence shows that he was able to, and did, supervise his plantations without having to ride a horse. It is a matter of common knowledge that, while about 1914 a good saddle horse was a necessary adjunct to the management of any well-regulated plantation, the cheap automobile has made the use of a horse in the supervision of farms obsolete, and plantation managers now supervise the work in light ears more efficiently than it was possible to do by the use of a horse. The evidence is undisputed that, not only was appellee able to manage the farms in the usual and customary manner, but was able to, and did, engage in other lines of business without hurt to his physical condition.

The general object of contracts similar to that involved in this case is to give to the insured indemnity for the loss of time because of a disability which prevents the prosecution of his business, and the evident purpose is to provide a means of living during the time the insured is unable to engage in any gainful occupation. As we have stated, disability exists within the meaning of the contract when the insured is able to accomplish only some of the duties essential to the prosecution of his business, and where he is able to perform only occasional acts. If he is unable to do any substantial portion of the work connected with his vocation, this is sufficient to establish total disability; or where the work he is engaged in is of such character that common care and prudence require him to refrain from its performance because of any ailment he may have. Total disability, however, as we have frequently held, is of necessity a relative matter, and must depend on the peculiar circumstances of every case as it arises. It depends largely upon the occupation and the capabilities of the person under disability, all of which should be considered; for one, because of his limitation, might be totally disabled from an ailment which would be but a slight hindrance to another in the performance of his vocation.

In the ease at bar, the appellee is a man of education, who has never engaged in manual labor, nor does his business require it, or indeed any great physical exertion, or necessary exposure to inclement weather, or any other act which might reasonably be expected to bring about a recurrence of his tubercular condition. It is clear that the undisputed evidence in this ease fails to bring it within the rule of total and permanent disability enunciated in the cases cited by the appellee or those to which we have referred. It follows therefore that the trial court should have complied with the request of the appellant and directed a verdict in its favor. For this error, the judgment is reversed, and, as it appears that the case has been fully developed, the same is here dismissed.

Kirby, J., dissents.


author: Johnson, C. J.

text:
    Black v. Waddell.
    4-3372
    Opinion delivered February 19, 1934.

      Isaac McClellan and Woodrow H. McClellan, for appellant.

      S. J. Reid and D. E. Waddell, for appellee.
   Johnson, C. J.

The State of Arkansas, on relation of its Attorney General, procured to be entered in the Grant County Chancery Court on September 17, 1932, a decretal order and judgment, quieting and confirming its tax title to the northeast quarter of the northeast quarter of section 33, township 5 south, range 13 west, lying and being in Grant County. This proceeding was authorized by act 296 of 1929, and the proceedings had and done thereunder were in full compliance therewith.

On January 14, 1933, appellant intervened in said cause, and filed therein his verified motion, setting forth that he was the true and lawful owner of said tract of land, and had no knowledge of the pendency of said confirmation suit until subsequent to the decree; he further alleged, as a meritorious defense thereto, that the forfeiture and sale sought to be confirmed by the State was void or voidable for a number of reasons, and that said decree should be vacated, and he be permitted to redeem. On hearing of appellant’s motion, it was stipulated, or tacitly admitted, that appellant was the true owner of the tract of land on the date of the forfeiture and sale to the State, and that the forfeiture and sale to the State was voidable for a number of reasons. Therefore it is not necessary to here set out these reasons in detail.

One J. E. Waddell responded to appellant’s motion as follows: “That on September 29, 1932, respondent had donated the tract of land from the State and had received a deed thereto, which deed was exhibited with his response; respondent denied that appellant had no knowledge of the pendency of the confirmation suit prior to the rendition of the decree, and therefore prayed that his title be quieted and confirmed as against appellant.” On hearing, the chancellor quieted and confirmed appellee’s title as against appellant as follows:

“The court finds that the said O. E. Black had knowledge of the pendency of the suit to confirm the northeast quarter, northeast quarter, section 33, township 5 south, range 13 west, and he is not entitled to recover on this tract, and his petition and complaint are hereby dismissed for want of equity, and the donation certificate of J. E. Waddell is upheld by the court and a writ of assistance is hereby ordered to dispossess the said O. E. Black and place the said J. E. Waddell in possession, to which decree and ruling of the court the said O. E. Black prayed an appeal to the Supreme 'Court, which is granted.”

Thus It definitely appears that appellant’s motion to redeem and vacate was denied by the chancellor because appellant, in fact, had knowledge of the pendency of the confirmation proceedings prior to the rendition of the decree. Section 9 of act 296 of 1929 provides: “The owner of any lands embraced in the decree may, within one year from its rendition, have the same set aside, in so far as it relates to the land of the petitioner, by filing a verified motion that such person had no knowledge of the pendency of the suit, and set up a meritorious defense, etc.”

Appellant’s verified motion strictly complied with and conformed to, the letter and spirit of § 9 of act 296, and, whatever doubts which might arise in reference to his right to vacate the decree and redeem, are made to appear from appellee’s response.

We think the clear intent and meaning of § 9 of act 296 is to grant to the true owner, one year from the date of the confirmation decree, in which to assert any defenses which might.have been available to him prior to the decree, and that this right is conditioned only upon his ability to show that- the tax sale or forfeiture to the State was void or voidable. Since § 9 of act 296 is construed to be an extension of one year of grace to the landowner, conditioned only upon his ability to show that the tax forfeiture or sale was void or voidable, it necessarily follows that it is immaterial whether or not he had actual or constructive notice of the pendency of such suit.

It follows, from what we have said, that appellant has the right under § 9 of act 296 of 1929 to redeem his lands upon paying the accrued taxes thereon.

To that end the case is reversed, and the cause remanded to the Grant County Chancery Court, with directions to enter a decree allowing appellant to redeem.


text:
    Norphlet School District No. 50 v. El Dorado Special School District No. 15.
    4-3352
    Opinion delivered February 19, 1934.

      Coulter & Coulter, for appellant.

      Coleman & Riddick, for appellee.
   Johnson, C. J.

Invoking equity jurisdiction, this suit was instituted by appellant against appellees, El Dorado Special School District No. 15, and the county treasurer of Union County, Arkansas, seeking an injunction restraining said treasurer from paying over to appellee district $8,685.16, to the end that said sum may be finally determined the property of appellant.

The material allegations of the complaint and amendment thereto were as follows: “Second: That, under a certain order and decree of the Garland 'Chancery Court made and entered on August 6, 1929, there was recovered from the Lion Oil Befining Company, as overdue taxes, the sum of $25,000, $8,685.16 of which was due the plaintiff herein as its distributive share of said fund; that on August 16, 1929, the said sum of $8,685.16 (together with other sums not here involved) was paid to T. L. Burnside as treasurer of Union County, Arkansas; that said sum, as above stated, was the property of plaintiff herein; that it was paid on properties located in said plaintiff district, and not on property any part of which was located in said defendant district; that said sum was arbitrarily credited to defendant, El Dorado Special School District No. 15, and that said defendant district still holds and retains said fund to the damage of the plaintiff in said amount.

“Plaintiff states that the question of the distribution of the fund involved in said suit was not an issue raised in the pleadings (in the Garland 'Chancery Court); that neither it nor the defendants were parties to the cause of action in which said decree and order were entered; that it knew nothing’ of said decree and order until long after the period of appealing therefrom had expired; that the order allotting any portion of the fund involved to defendant school district was solely under an ex parte proceeding, without notice to plaintiff, and without any foundation in fact to support it, and without validity or effect, and wholly inoperative to adjudicate the rights of the parties hereto; and that the parties to this action all reside in Union County, and that the fund in controversy is on deposit with the treasurer of this county.”

To the complaint, as thus amended, appellees interposed a general demurrer, which was sustained by the trial court, and this appeal is prosecuted to reverse the decree dismissing appellant’s complaint for want of equity.

It will be noted from the allegations of the complaint that the sums sought to be recovered accrued by reason of a certain suit prosecuted in the Garland County Chancery Court, wherein the State of Arkansas was plaintiff and the Lion Oil Refining Company was defendant.

It was determined in that case: “It is therefore by the court considered and ordered that the said special counsel do pay over to the respective treasurers of the several funds the appropriate amounts due thereunder, according to the tax rate applicable for the year 1928, to which the court doth find each entitled, the f ollowing sums of money, to-wit: * * *

“To Thad L. Burnside, county treasurer of Union County, for county and school purposes, $12,545.23, to be credited as follows:
“12. County Gen. Fund.....................@ 5 M. $ 2,412.55
“18. Eoad Fund....................................... 3M. 1,447.52
“14. City of El Dorado..................... 18 M. 8,685".15
“15. Total to County Treasurer.....................$12,545.23”

The suit referred to in the Garland Chancery Court was an overdue tax proceeding, which was authorized by §§ 10,204 to 10,214, Crawford & Moses ’ Digest of the laws of Arkansas.

In conformity with § 10,208 of Crawford & Moses’ Digest, the Garland Chancery Court decreed the amount due the State, county, school districts and municipalities, and directed payment thereof accordingly.

Appellant’s first insistence is that § 10,208 was impliedly repealed by § 5 of act 157 of 1923, which provides : “All moneys collected under the provisions of this act, less the compensation of special counsel fixed under section two (2) hereof, shall be paid over promptly to the State Treasurer, who shall issue his receipt therefor.”

To determine the significance of § 5, it is necessary to determine the scope of the whole of act 157 of 1923.

Section 1 of said act provides: “That when there shall be past due and unpaid any special license fee, franchise tax, privilege tax or other moneys due the State, by individuals, officers, companies, firms or corporations, etc.”

Section 2 of said act provides for compensation for special counsel employed in the prosecution of suits under said act.

Section 3 provides the venue of suits prosecuted thereunder.

Section 4 gives to the Attorney General discretion in effecting compromises in cases brought under provisions of said act.

Section 6 provides: “All laws and parts of laws in conflict herewith are hereby repealed, except that this act shall not be so construed as to repeal §§ 10,204 and 10,214, both inclusive, of Crawford & Moses’ Digest, nor act 194, approved March 20, 1915.”

Section 7 is the emergency clause.

From the synopsis given, it is seen that act 157 of 1923 deals with an entirely different subject to that dealt with under §§ 10,204 to 10,214 of Crawford & Moses’ Digest. The sections of Crawford & Moses ’ Digest referred to deal exclusively with general taxes due the State, county, school districts and municipalities because of under valuations in assessments. On the other hand, act 157 of 1923 deals exclusively with special license fees, franchise taxes, privilege taxes or other moneys due the State, etc. Thus it appears that act 157 of 1923 does not impliedly repeal the sections of Crawford & Moses’ Digest heretofore referred to.

Repeals by implication are not favored. Crittenden v. Johnson, 11 Ark. 103; Eason v. State, 11 Ark. 496; Carpenter v. Little Rock, 101 Ark. 238, 142 S. W. 162; Jones v. Oldham, 109 Ark. 24, 158 S. W. 1075; Eubanks v. Futrell, 112 Ark. 437, 166 S. W. 172.

Moreover, § 6 of act 157 of 1923 specifically exempts §§ 10,204 to 10,214, both inclusive, of Crawford & Moses’ Digest, from the operation of said act, thereby evincing a legislative determination not to repeal said sections, but to leave them in full force and effect.

Since §§ 10,204 to 10,214 of Crawford & Moses’ Digest were not repealed by act 157 of 1923, it necessarily follows that the Earland County Chancery Court had jurisdiction of the parties and subject-matter in the case there pending, and had full power and authority to designate and determine to what subdivisions of the State said funds belonged. This was a question of fact to be determined from the testimony then and there introduced, and its determination and decree cannot be attacked collaterally. Hall v. Morris, 94 Ark. 519, 127 S. W. 718; Campbell v. Jones, 52 Ark. 493, 12 S. W. 1016; Crittenden Lumber Co. v. McDougal, 101 Ark. 390, 142 S. W. 836.

It follows from what we have said that the decree must be affirmed.


author: Smith, J.

text:
    Albright v. State ex rel. Attorney General.
    4-3443
    Opinion delivered February 19, 1934.

      R. V. Wheeler, for appellant.

      Hal L. Norwood, Attorney General, and Edward Bennett, for appellee.
   Smith, J.

The only question involved on this appeal is: “What fees were the sheriffs of the State entitled to for collecting the 1932 automobile license taxes 1 ’ ’

The statute then in force, which imposed the duty of making the collection upon the respective sheriffs of the State, was act 65 of the Acts of 1929, page 264. We must therefore look to this act for the answer to the question stated, as it is conceded, of course, that only those fees may be charged which are authorized by law.

Section 24 of act 65 fixes the fee for the registration and licensing of all motor vehicles subject to the tax. Section 28 of the same act provides that these fees * ‘ shall be for each calendar year, beginning January 1, 1929,” with the provision that, “if such registrations and licenses are issued after June 30 and prior to September 30, the charge shall be one-half of that for the calendar year. If such registrations and licenses are issued after September 30, the charge shall be one-fourth of that for the calendar year.”

By § 29 of this act it is made the duty of the State Highway Commission to furnish, on or before January 1 of each year, to the sheriffs of the various counties of the State application blanks for the registration of motor vehicles, the blanks to be prepared in such form as may appear to the Commission to be necessary to properly carry out the provisions of the act, and that said blanks shall bear serial numbers. These blanks -were to be charged to the sheriffs in the same manner that poll tax receipts are charged to the collectors by the State Auditor. These blanks were to'be accounted for by the sheriffs, who were to be charged for those issued or not returned. It was provided that: “There shall be printed upon such application blank a receipt to be filled in and signed by the sheriff of the county,” upon issuance.

By § 30 of the act it was provided that the applicant shall deliver the application and receipt therefor to the State Highway Commission, and, “* * * if said Commission finds that said application is in proper form, * * * and the proper fees paid therefor, it shall be its duty to issue such applicant a registration card and a registration plate or set of registration plates, as the Commission may require, bearing the number that has been assigned such motor vehicle.” A penalty was imposed upon owners of cars who failed to pay the proper fee within the time limited for payment, one-third of which was to be retained by the sheriff making the collection thereof. It is provided that “the sheriff of each county shall retain for his services, in addition to his salary as such sheriff, thirty-five cents out of each license collected by him.”

Section 31 of the act required each sheriff “to pay into the State Treasury, to the credit of the State Highway Fund, all moneys received by him under the provisions of this act, less the amount authorized to be retained by him, not later than the second Monday of the following month.”

At the beginning of the year 1932 the State Highway Commission, with the approval of the Attorney General of the State of that action, as being authorized by law, adopted a policy of permitting the license fees to be paid by the owners in quarterly installments, instead of requiring the entire fee to be paid in advance. In the biennial report of the Attorney General for the years 1931-1932 there is published an official opinion by the Attorney General to one of the sheriffs of the State, advising that these fees might be collected in quarterly installments, but advising also that the entire fee for the completed collection would be only thirty-five cents.

Various sheriffs and, among others, the sheriff of Jaokson 'County, proceeded to make quarterly collections of this annual license fee, such collections being made in the first, second and third quarters of the year, and in his annual settlement the sheriff sought to take credit in the sum of thirty-five cents for each of these installments, and he has appealed from a judgment sustaining a demurrer to the answer filed by him, alleging his right to such credit in a suit brought against him by the Attorney General. The purpose of this suit was to require settlements by the sheriff after taking credit for only thirty-five cents on account of the collection made from each owner. The sheriff had made full settlement and payment of his collections, except for this fee, and, as has already been said, this contention presents the only question in the case.

In our opinion, the demurrer to the answer was properly sustained. Although payment was permitted in installments made prior to the last quarter of the year, only one license was collected from the owner paying the tax, and for such service as was rendered by the sheriff in this connection he was allowed the sum of thirty-five cents, and that only. There is involved here no question about penalties collected from owners who had failed to pay, or the fees for collecting such penalties.

If it be conceded that the Highway Commission had the authority to permit installment payments made prior to the last quarter of the year of the automobile license fees, the fact remains that only one fee was collected, and only one charge for the collection was authorized by the statute. It is the statute which authorized and fixed the fees of the sheriff, and no action of the Highway Commission could enlarge the statute in this respect. If, under § 28 of the act, the owner was liable for only a half-year’s tax, or for a quarter year’s tax, the sheriff would have the right to charge thirty-five cents for such collection, this being true because this was the whole amount of the tax due when the collection was made. B-ut, in whatever quarter of the year the collection may have been made, and whether in installments or in the full amount of the fee in a single collection, only one fee can be charged, because only one fee is authorized by the statute for the entire service which the sheriff is required to render.

The demurrer to the answer was therefore properly sustained, and the judgment must therefore be affirmed, and it is so ordered.


text:
    Standard Oil Company of Louisiana v. Richerson.
    4-3307
    Opinion delivered January 29, 1934.

      T. M. Milling and Gaughan, Sifford, Godwin & Gaughan, for appellant.

      Walter L. Brown and Gus W. Jones, for appellee.
   Smith, J.

This appeal lias been prosecuted to reverse a judgment recovered by appellee upon the following testimony. Appellee and other employees of appellant, a corporation, were engaged in setting up a boiler. In raising the boiler from the ground they were furnished a block of wood about 10 by 12 inches and 2 feet long, which block of wood was used as a fulcrum, upon which there was placed a joint of 4-ineh pipe about 20 feet long and weighing about 200 pounds. The earth was sandy where the block was placed, and it was pressed to some extent into the earth. After the pipe, which was referred to by the witnesses as a pry or “mope” pole, had been placed on the block, and one end of the pipe under the boiler, fellow employees of appellee placed their weight at the other end of the pipe and pulled down to lift the boiler. It was the duty of Bill Williams, another employee, to place the block of wood securely under the pry pole to keep it from slipping. There was testimony to the effect that Williams negligently failed to perform this duty by releasing the block and permitting it to slip, thus throwing the pole and the weight which it supported upon appellee’s foot, thereby inflicting a painful, serious and permanent injury.

Under the facts stated, a case was made for submission to the jury, and, as the instructions given have not been set out, it will be conclusively presumed that the issues of fact were submitted under correct declarations of law.

In its answer, the defendant pleaded a contract with the plaintiff, whereby he agreed that, if he should ever receive an injury while employed by defendant, he would accept in full settlement of any claim for damages the amount provided for a similar injury under the Workmen’s Compensation Law of the State of Louisiana. The court refused to permit the introduction of this contract in evidence, and that ruling is assigned as error. Of this contract, counsel for appellant say: ‘ ‘ The question of the validity of this contract in the courts of Arkansas has been submitted for decision in this court in the case of Standard Pipe Line Company, Inc., v. W. M. Burnett, No. 3245, which case, at the time of the writing of this brief, has not yet been decided.' We respectfully refer the court to the argument and authorities cited in the brief of the Standard Pipe Line Company, Inc., in the Burnett case.”

The brief referred to was prepared by counsel here appearing, and, since that brief was -written, the 'Burnett case to which reference was made has been decided, and it was held that the contract was not enforceable in the courts of this State. For the reasons inducing that holding, reference is made to the opinion delivered December 18, 1933, in the case of Standard Pipe Line Co. v. Burnett, ante p. 491.

There is a conflict as to the extent of appellee’s,injury, but, according to the testimony on his behalf, the injury is as great or even greater than the complete loss of the foot would have been. The defendant’s doctor who treated appellee admitted that: “He has a tenderness there, and always will. He has a broken arch, and any time he steps it will stretch the ligaments and give him pain.” The testimony on appellee’s behalf is to the effect that he is unable to stand on the injured foot for any considerable time, and he is therefore unable, to perform any manual labor, the performance of which requires him to do so. Indeed, we do not understand that it is seriously contended that the verdict is excessive. The insistence is that there is no liability for the injury, and that a full and final settlement of the cause of action was made, which was evidenced by a written contract.

This release appears to have been executed upon a form prepared for that purpose. It was prepared in the defendant’s office in Shreveport, and sent by one of its representatives to Smackover, where it was signed by appellee. This release, after reciting the time, place and nature of appellee’s injury, contains the following statement:

• “The full intent and meaning of this receipt is that I hereby acknowledge to have received from the Standard Oil Company of Louisiana full settlement and compensation for any and all claims for damages which I have or may have against the Standard Oil Company of Louisiana, under the laws of the State of Arkansas, resulting from, or that may result from, said above-described accident, aiíd I further declare and acknowledge that the settlement which I have' this day made with the said Standard Oil Company of Louisiana for injuries resulting or that may result from said accident, is a compromise and adjustment of any claim for damages which I have or may have, and that the amount received by me is full and just compensation for the injuries suffered.
“This settlement is accepted and receipt executed by me solely on my own judgment, and I am not acting on any statement made to me by the Standard Oil Company of Louisiana, its officers, agents or employees, or on any statement or representation of any physician or surgeon employed by the said Standard Oil Company of Louisiana. ’ ’

Appellee had been paid $211.43 by defendant, and this payment was credited by the jury on the verdict for $3,000 which was returned in appellee’s favor. Appellee testified that he had been discharged by the defendant’s surgeon, who assured him that his foot would be entirely well in the course of a week or so, and that he was induced by this representation to accept the sum paid him in settlement of his cause of action.

It is earnestly insisted that the admission of this testimony was erroneous, as it permits a valid written instrument to be contradicted by parol testimony. This question was thoroughly considered in the case of St. Louis, Iron Mountain & So. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, and a decision was rendered which is adverse to this contention. In that case a release was executed in which it was recited that, in the judgment of the injured party, his injuries were of a permanent character, and written thereon in his own handwriting was the statement: “I understand this release.” The execution of the release was admitted by the injured party, who testified that he had been assured by the defendant company’s surgeon who had treated him that his injuries were not serious, and that he would soon be able to resume his usual employment, whereas his injuries were serious, and he had not been able to return to work, as the doctor had assured him he would be.

In holding that this testimony was competent, notwithstanding the recitals of the release to the contrary, it was said: “The rule of evidence forbidding the addition, alteration or contradiction of a written instrument by parol testimony of antecedent and contemporaneous negotiations does not apply where there is an issue of fraud in the procurement of the writing. ’ ’

The authorities were again reviewed in the case of F. Kiech Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 24. The release in that case recited that the injured party “was acting wholly upon his own judgment as, to the nature and extent of his injury, and that no representations had been made in regard thereto upon which he relied.” The injured party was permitted, however, to testify that such representations had been made to him, upon which he had relied and had acted in executing the release. It was there held, in effect, that, where a release was procured upon representations which proved to be false made to the servant by the attending physician, who was employed by the master and who attended the servant, that the injuries were slight and temporary, if relied and acted upon, constituted fraud in the procurement of the release and justified its avoidance, and parol testimony was admissible to contradict its recitals.

This holding has been consistently adhered to by this court, and was reaffirmed in the case of Ozan-Graysonia Lbr. Co. v. Ward, ante p. 557.

The release here in question was prepared before appellee saw it, and, when presented to him, required only his signature, which he affixed to the writing, relying, as he did, upon the assurance of the defendant’s doctor, who had treated him, that he would soon be well and able to return to work. It may be said that the company’s doctor testified in this case with a frankness quite unusual. He. admitted telling appellee that his injury was slight, and that he would soon be well, and he admitted with equal frankness that he was mistaken in this opinion.

No error was committed in the admission of this testimony, as it tended to show fraud in the procurement of the execution of the release, although no fraud was intended, the effect of the mistaken opinion of the doctor being to accomplish what would be a fraud if the result induced by this opinion was conclusive and not open to inquiry.

There appears to be no error, and the judgment must be affirmed. It is so ordered.


text:
    Illinois Bankers’ Life Association v. Hamilton.
    4-3344
    Opinion delivered February 5, 1934.

      W. P. Strait, for appellant.

      H. A. Tucker and Dean, Moore & Brazil, for appellee.
   Butler, J.

On or about the 6 th day of November, 1926, the Illinois Bankers’ Life Association issued a joint policy of life insurance on the lives of Guy Patrick Hamilton and Maggie Hamilton, husband and wife, the survivor being named as beneficiary, in the sum of $1,000 for the consideration of $25.33, annual premium. This policy was taken over and its liability assumed by the Illinois Bankers’ Life Assurance Company.

Maggie Hamilton died on February 6, 1933, and proof of death was furnished the last-named corporation. The policy was not paid, and this suit was instituted, which resulted in a verdict and judgment for Guy P. Hamilton, the survivor.

This appeal challenges the correctness of the judgment on two grounds which were interposed as a defense in the lower court. The first, and the principal, defense made is that there was a lapse in the policy for the nonpayment of premiums, which policy was reinstated on the application of the insured. In this application the insured acknowledged the forfeiture of all claims under the original policy by reason of the lapse of same, and that, as an inducement to the company to reinstate, it was represented that the statements and answers contained in the original application were true when made and were true on the date of the application for reinstatement, and agreed that the same should be based exclusively upon the representations contained in that application and the original application for the policy, and under the condition that, if the statements, or any of them, should be untrue, the company should be under no liability by reason of the attempted reinstatement of the policy except for a return of the premiums paid since the date of the reinstatement; that the answers to the questions regarding the health of the insured and her consultation of a physician since the date of the original application were false, and, because of such false statements, there was no liability except for a return of the premiums which had been tendered.

The next defense interposed was that when the annual premium matured on November 6, 1932, its payment being necessary to carry the policy over another year, the same was not paid, and that the insured and the company entered into an extension agreement, extending the time of payment to May 6, 1933, by which extension agreement it was provided that, if the premium as extended was not paid at maturity, the policy should become null and void, and that, because Guy P. Hamilton, the appellee, jointly executed the same and did not pay, or offer to pay, the premium on the date of maturity, the policy became void.

The facts as shown by the evidence ,are that the policy lapsed for the nonpayment of premium due November 6, 1929, and thereafter, on June 11, 1930, the parties insured made, application for reinstatement, which application contained the stipulations hereinbefore set out, and that, in answer to the question propounded to the insured, Maggie Hamilton, in said application for reinstatement, “Have you been ill or injured or consulted a physician since the date of the application for this policy,” she answered, “No”; and in response to the question, “Are you now in good health and of sound constitution,” she answered, “Yes,” when in fact in 1927 she had suffered a paralytic stroke for which she had been treated by a physician. This physician testified that he did not know whether she had recovered or not.

It was also shown by another physician that Maggie Hamilton became ill about Christmas, 1932, suffering what appeared to be a light stroke of paralysis, from which she did not recover, and at that time she also had what is commonly known as leakage of the heart; that she died about the 7th day of February, 1933, from the heart disease and paralysis, but that the heart trouble was the preponderating cause of her death. This physician stated that he had known Maggie Hamilton for about three years, during which time she walked from her home to visit the sick and waited on them, and that the only indication he saw of any infirmity was that when she would step on something sharp, she would give in her foot; that during this time he would have passed her as an insurable risk.

The evidence relating to the stroke she suffered in 1927 was to the effect that this was a light attack which temporarily affected her left ankle, knee and wrist; that she apparently recovered except for a slight lameness in one of her ankles and one of her wrists troubled her some in lifting and in doing hard work; that at the time, of this stroke she was in bed for ten days.

It is the contention of the appellant that this state of facts rendered the policy void because, as it says, the right of reinstatement of the insured was not absolute, but depended upon the condition of the health of the applicant, and that, since they had agreed in the application for reinstatement that any false answers made respecting the condition of health would invalidate the policy, they are. bound thereby.

To sustain this contention, the appellant relies on the case of Ward v. New York Life Ins. Co., a South Carolina case, reported in 129 S. C. 121, 123 S. E. 820. It also cites as authority for the point raised, Childress v. Fraternal Union of America, a Tennessee case, reported in 113 Tenn. 252, 82 S. W. 832, and Woodmen, etc., v. Jackson, 80 Ark. 419, 97 S. W. 673. In the first-named case the statement of facts does not disclose the date of the issuance of the policy. It lapsed for a failure to pay the premium on October 3, 1921, and was reinstated by the insurer, after the days of grace had expired, on an application which admittedly contained false statements material to the risk. The insured died prior to February 27, 1922, since the proof, of death was made on that date. The beneficiary brought suit to recover, relying on a statute of the State of South Carolina, the applicable portion of which is as follows: “All life insurance companies that shall receive the premium on any policy, for the space of two years- shall be deemed and taken to have waived any right they may have had to dispute the truth of the application for insurance; that the assured person had made false representations, and the said application shall be deemed and taken to be true. ’ ’ The original contract of insurance is not set out, but the court sustained the defense interposed by the insurer that the policy was invalid because of the false statements and, in overruling the contention of the beneficiary, held that the statute relied on referred only to the application made for the issuance of the policy, and had no reference to applications made for reinstatement of policies where the same had lapsed for failure to pay the premiums. The policy appears to have contained an “incontestable clause,” and in disposing of this, the. court said: ‘ The incontestable clause in the policy is not in the case, and we can base no binding judgment thereon.”

In the case at bar it is the contention of the appellee that the defense of falsity of statements in the application for reinstatement cannot avail the insurer because of a clause in the original policy which provides as follows: “After this policy shall have been in force two full years during the. lifetime of the insured, it shall be incontestable except for nonpayment of premiums. ’ ’ The appellee takes the position that this provision inures to his benefit, although the policy was revived by reinstatement, the application for which contained untrue statements; first, because to avoid the policy for these would be to attach a condition to the right of reinstatement not provided in the original contract; second, that, even if this condition had been authorized, more than two years had elapsed between the date of reinstatement and the death of the insured which would make the incontestable clause effective; and, third, that the false statements were not material to the risk.

Whether or not a clause, in insurance policies renders the contract incontestable from the date of the issuance of the policy is a question of sharp conflict of authority on the subject. Some respectable courts hold that such contract is invalid on the theory that, if it was procured by fraud, it is no contract, and can never become such if the misrepresentations were of a material nature calculated to deceive and made with that intent. Other courts of equal repute hold to the contrary, basing their conclusions on the ground that the clause was written by the insurer in its own terms for the purpose of inducing the public to enter into contracts with it upon the assurance that, after the insurer had accepted the risk, the validity of the contract will not be questioned. The insurer had all the time it desired to investigate the risk before accepting it and should, and likely does, anticipate that deceit might be practiced by applicants for insurance, and, through its own processes, has means to discover if such deceit has been practiced, and, having announced its satisfaction to bind itself, no subsequently discovered circumstance should avoid the policy except the nonpayment of premiums.

In National Annuity Ass’n v. Carter, 96 Ark. 495, 132 S. W. 633, this court has adopted the rule that the incontestable clause is valid, even where it takes effect immediately upon the issuance of the policy. But where, as in the instant case, the agreement not to contest the validity of the policy is postponed for a reasonable and definite period within which time the insurer has the opportunity to ascertain the truth of the representations made, it seems that the provision relating to incontestability is universally held to be valid. Here, more than two years had elapsed between the date of the issuance of the policy and its laps.e for the nonpayment of premiums ; also, more than two years had elapsed from the date of the reinstatement to the date of the death of the insured. From this the question is presented, does the application for reinstatement which contains false statements annul the provision in the policy against incontestability? We hold it does not.

In the insurance contract, as one of the inducements to the insured to enter into it, there is the following clause:. “This policy, after default in payment of any premium, may be. reinstated upon both of the insured furnishing to the home office satisfactory and acceptable evidence of insurability and paying all past-due premiums with compound interest thereon at the rate of six per cent, per annum.”. Therefore, as is held in National Annuity Ass’n v. Carter, supra; New York Life Ins. Co. v. Adams, 151 Ark. 123, 235 S. W. 412; Security Life Ins. Co. v. Leeper, 171 Ark. 77, 284 S. W. 12; and Equitable Life Ins. Co. v. King, 178 Ark. 293, 10 S. W. (2d) 891, “the reinstatement was not granted as a gratuity on the part of the company, but as a part of the contract expressed in the policy itself to the effect that a reinstatement could be obtained as a matter of right, * * * upon presentation at the home office, of evidence of insurability satisfactory^ to the company.”

It will be noted that the provision for reinstatement contained in the policy in the case at bar places no burden or restriction upon the right of reinstatement save the furnishing’ of satisfactory and acceptable evidence of insurability and the payment of all past-due premiums with compound interest thereon at the rate, of six per cent, per annum, the latter provision being ample consideration moving to the company. As is held in the Arkansas cases cited, the company had no right to enlarge the terms upon which reinstatement conld be obtained. It had the right to defer its action on the application for reinstatement for a reasonable time in which it might investigate the insurability of the applicant, and there was no requirement in the original contract that the answers to the questions in the application for reinstatement should be true, and a condition precedent to the reinstatement of the policy and to its validity when so reinstated. In this particular the contract differs from that in the ease of Woodmen, etc., v. Jackson, supra, cited and relied upon by the appellant. In that case the insurer was a fraternal order insuring its members. Its bylaws were made a part of the original contract of insurance, one section of which provided for reinstatement of a suspended member upon satisfactory answers being given by him in his application relative to his use of intoxicants, narcotics, and his health at the time of application. It provided, in effect, that, if any of the statements made by the applicant were untrue, reinstatement should be unavailing and he was required to furnish the statements “as a condition precedent to reinstatement and waiving all rights thereto if the said written statements shall be found to be untrue.

In our cases cited supra, the doctrine is laid down that, since the reinstatement is not a gratuity, the insurer had no right to enlarge the terms upon which reinstatement could be obtained. In the Leeper case, supra, it was the contention that by reason of lapse, the. original policy was void and the reinstatement created a new contract. In the original policy there was a provision that where the insured committed suicide the- policy should be void, but another clause provided that the policy should be incontestable after two years from the date of its issuance. The policy lapsed after two years had expired and was reinstated, and in the application for reinstatement there was a stipulation that, in the event of self-destruction within one year from the date of approval of the application for reinstatement, the amount payable as a death benefit should be equal only to two annual premiums on said policy, and no more. The court, under the rule announced in the Adams case, supra, held that this stipulation was an enlargement of the original contract of the terms upon which reinstatement could be obtained, that there was no new contract created by the reinstatement, but a revival and continuance of the original, and that, although it appeared that Leeper had committed suicide within one year from the date of the reinstatement, the incontestable clause in the original policy was applicable, and the fact that he was a suicide was no defense.

So, in the instant case the reinstatement created no new contract, but revived the original to the same extent as if there had 'been no lapse. This rendered the incontestable clause available and certainly, since more than two years has elapsed between the date of the reinstatement and the death of the insured, this clause is effectual to waive all defenses except the one reserved in the contract — namely, the nonpayment of premiums. Our cases cited have been approved, and their doctrine reaffirmed in the recent case of Life & Casualty Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S. W. (2d) 199, and are in accordance with the weight of authority. Mutual Life Ins. Co. of N. Y. v. Lovejoy, 201 Ala. 337, 78 So. 209; Becker v. Ill. Life Ins. Co., 227 Mich. 388, 198 N. W. 884; Mutual Life Ins. Co., etc., v. Hurni Co., 263 U. S. 167, 44 S. Ct. 90; Wambolt v. Reserve, etc., Co., 191 N. C. 32, 131 S. E. 395, and cases therein cited.

There is no contrary rule announced in Childress v. Fraternal Union of America, supra, relied on by the appellant, for in that case the insured was a suicide, and the contract provided that in the event of suicide the indemnity to be paid to the beneficiary should be one-third of the amount otherwise due under the policy. The incontestable clause in that contract provided only that the validity of the policy could not be questioned after two years from its date except upon the ground of certain false answers made and upon this ground it might be questioned at any time. But the suicide clause was not one which entered into the validity of the original contract, and the incontestable clause had no reference to the suicide clause, which latter clause was in no wise affected by the former.

The second ground presented for reversal in our opinion is without merit. The extension agreement extended the time of the payment of the annual premium due November 6, 1932, to May 6, 1933, and by reason of this the policy was in full force and effect at the time of the death of the insured. Since, under the original contract of insurance as reinstated, the company was liable to the survivor for the face of the policy, this was effective to work a payment of the premium extended, and it would have been a useless course of procedure for the survivor to have paid the premium, as it would have resulted only in its being returned to him by the insurer. The survivor brought suit for the balance on the policy less the amount due the company for the annual premium, payment of which had been extended. This was the correct amount due, and, having recovered that sum, the court properly awarded the penalty and attorney’s fees.

The judgment of the trial court is correct, and it is therefore affirmed.


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    Wasson v. Beekman.
    4-3373
    Opinion delivered February 19, 1934.

      E. K. Edwards, for appellant.

      Abe Collins, for appellee.
   Smith, J.

On June 27, 1925, Annie R. and EL EL. Beekman became indebted to the Bank of DeQueen, of DeQueen, Arkansas, in the sum of $5,000, and, to secure its payment, executed a mortgage to that bank covering blocks 8, 9, 10, 11 and 12 of the Garrison Addition to the city of DeQueen. The mortgage secured the debt then due, which was evidenced by a note payable six months after date, and also any renewals thereof. The note was not paid, and was renewed from time to time, the last renewal being oh March 22, 1929, the note then executed in renewal being payable six months after date.

The mortgage was duly recorded, but there had be.en made no marginal indorsement on the record thereof showing any payment of principal or interest, or other renewal, as required by § 7382, Crawford & Moses’ Digest, to preserve the lien thereof against third parties. The bank became insolvent, and was taken over by the State Bank Commissioner for liquidation, and suit was filed in his name on February 17, 1933, for judgment on the note and to foreclose the mortgage securing it, and, at the same time, a lis pendens notice was filed conforming to chapter 112, Crawford & Moses’ Digest, on that subject. This notice gave the date of the original note, and recited its renewal, the last being the note sued on. The execution of the mortgage securing the note was alleged, and the book and page of its record was stated.

An intervention was filed by W. O. Wright, in which he alleged his ownership of the mortgaged lands under a deed from the mortgagor executed on April 6, 1933, and duly recorded April 17, 1933. The intervener prayed that the mortgage sought to be foreclosed be declared barred by the five years’ statute of limitations as to him, for the reason that there had been no indorsement of payment, or other renewal, on the margin of the record as required by § 7382, Crawford & Moses’ Digest.

Testimony was offered to the effect that the Deputy Bank Commissioner engaged in liquidating the bank had taken charge of the mortgaged property, there being three houses thereon. Two of these had been damaged by a storm, and the Commissioner caused them to be repaired. The third house was rented to a tenant, and the Commissioner collected the rents thereon. The intervener lived in an adjoining house, and made no denial of this possession.

Judgment was rendered against the makers of the note for the amount thereof, but it was decreed that the intervener had acquired title free of the mortgage lien, for the reason that the marginal indorsement required by § 7382, Crawford & Moses’ Digest, had not been made, and this appeal is from that decree.

Section 7382, Crawford & Moses’ Digest, requires the owner of an indebtedness secured by any of the liens there mentioned to make indorsements in writing on the margin of the record where such instrument is recorded, which indorsements shall be attested and dated by the clerk, to preserve the lien as against third parties.

It is true that no indorsement was made of the interest payments which had evidently been made at each renewal of the note, as the face of the note remained unchanged, nor was there any notation upon the record showing these renewals. Lacking these or other marginal indorsements showing that the debt had been kept in force, so that the bar of the statute of limitations had not fallen, the lien was apparently barred as to third parties so far as a mere inspection of the mortgage record disclosed to the contrary. But it is to be remembered that the mortgagee’s representative was in possession of the mortgaged property, and such possession had been taken before the intervener received his deed. Temple v. Tobias, 186 Ark. 851, 56 S. W. (2d) 585; Garner v. Wright, 52 Ark. 385, 12 S. W. 785; Applewhite v. Harrell, 49 Ark. 279, 5 S. W. 292; Little v. National Bank of Mena, 97 Ark. 57, 133 S. W. 166; McClendon v. First Nat. Bank, 112 Ark. 189, 165 S. W. 952; § 202 of the chapter on Mortgages, 19 R. C. L., page 421; Garbutt v. Mayo, 13 L. R. A. (N. S.) 120.

Moreover, the lien subsisted and was in full force and effect as between the mortgagors and the mortgagee when the suit to foreclose was filed and the lis pendens notice given as required by statute. The intervener’s rights having been subsequently acquired, he was not an innocent purchaser or a third party within the meaning of the statute.

A headnote to the case of Reaves v. Coffman, 87 Ark. 60, 112 S. W. 194, reads as follows: ‘ ‘When notice of a pending suit to establish a lien on land was filed as required by Kirby’s Digest, § 5149 [which now appears as a part of chapter 112, Crawford & Moses’ Digest], subsequent purchasers of the land are not entitled to protection as innocent purchasers.”

In the case of Less v. English, 75 Ark. 288, 85 S. W. 447, appears a headnote as follows: “One who purchases the title of a mortgagor in the mortgaged premises during the pendency of a suit to foreclose the mortgage takes subject thereto.” See also Oil Fields Corporation v. Dashko, 173 Ark. 546, 294 S. W. 25; Teal v. Thompson, 180 Ark. 63, 20 S. W. (2d) 307.

The mortgage here sued on as between the parties was not barred, and the mortgagee had the right, as against the mortgagors, to' foreclose that instrument, and the effect of thé lis pendens notice was to warn all persons dealing with the mortgaged lands of that fact, and it therefore follows that the intervener took title subject to the mortgage.

It is insisted that the effect of act 374 of the Acts of 1917, page 1805, of which § 7382, Crawford & Moses’ Digest, is a part, is to repeal act 65 of the Acts of 1903, page 118, appearing as chapter 112, Crawford & Moses’ Digest, in so far as the earlier act relates to mortgage foreclosure. The insistence is that this result is accomplished (because of the conflict in the two acts in this respect. There was no express repeal of the earlier act by the later one, nor was the earlier act repealed by necessary implication. Both acts may stand and each accomplish the purpose of its enactment. The lis pendens notice-does not operate to revive a lien which the statute of limitations has extinguished. The mortgage lien was in full force and effect as between the parties, and, suit having been brought to foreclose it, the lis pendens notice gave warning of that fact. The mortgage record was no longer the sole evidence of the lien of the mortgage of which a prospective purchaser from the mortgagor was required to take notice. All persons know that the lien may be kept in force between the parties thereto, although § 7382, Crawford & Moses’ Digest, had not been complied with, and, if the statutory notice has been given, as was done in the instant case, that a suit was pending to foreclose the lien, one deals with the subject-matter of the litigation at his peril, and, if he purchased the mortgaged property under the circumstances stated, he takes title subject to the rights of the parties litigant.

The decree of the court below must therefore be reversed, and the cause will be remanded with directions to foreclose the mortgage as prayed for, according to the intervener the right, if he elects to assert it, of redeeming the mortgaged lands by paying the debt secured by the mortgage.


author: Humphreys, J.

text:
    Rader v. Payne.
    4-3353
    Opinion delivered February 19, 1934.

      Oscar E. Williams, for appellant.

      John Nance and C. D. Atkinson, for appellee.
   Humphreys, J.

The question involved on this appeal is whether appellant is estopped to deny the validity of the orders and judgments of the probate court of Washington County appointing . appellee, Ida May Payne, guardian of the person and estate of her mother, Lillian B. Sager, and in appointing appellee, Elmer Johnson, guardian in succession to Ida May Payne of said estate.

Appellant appealed from the orders and judgments of the probate court, and also filed a petition for writ of certiorari seeking to reverse and quash them on the ground that they were void for the alleged reason that the court had no jurisdiction to make and enter them.

The jurisdiction of the probate court was assailed because the order and judgment appointing appellee, Ida May Payne, was an approval of letters of guardianship issued to her by the probate clerk in vacation, for the further reason that nonresidents only signed the guardian’s bond, and for the further reason that Lillian B. Sager was not present in court and examined as to the condition of her mind before said order and judgment was rendered; and the appointment of Elmer Johnson in succession was assailed because the appointment of the original guardian was void.

The cause was submitted to the court without the intervention of a jury, upon the pleadings and testimony, at the conclusion of which appellant requested the court to find the facts and declare the law separately which the court declined to do, but made a general finding of both the law and the fact in favor of appellees, from which is this appeal.

The following facts, briefly stated, are disclosed by the record; the original judgment rendered and entered by the probate court did not contain a finding that Mrs. Sager was present and examined, and the original judgment appointing Elmer Johnson as guardian in succession did not state the judgment was rendered and entered with the consent of appellant, hut there is a nunc pro time order made and entered at a subsequent term by the probate court reciting that these findings had been made and omitted from the judgments which were entered theretofore. Mrs. Rader and Mrs. Payne are sisters, and the only daughters and heirs of Mrs. Sager. In July and August, 1931, the daughters resided in Minneapolis, Minnesota, and Mrs. Sager, who was old and feeble, resided in Springdale, Arkansas. Mrs. Sager owned a home and about $8,000 in money. By agreement of the daughters, and on a formal application of Mrs. Payne, she was appointed guardian of the person and estate of Mrs. Sager by the clerk of the probate court of Washington County in vacation, and executed a guardian’s bond in the sum of $10,000, which both appellant and appellee signed; whereupon Mrs. Payne took charge of her mother’s property, as well as her person. At the succeeding term of court, and after an examination of Mrs. Sager in open court concerning the condition of her mind, the vacation appointment was confirmed, and the bond was approved by the court. At a subsequent term of court, Mrs. Rader filed a petition or motion to remove Mrs. Payne as guardian; whereupon Mrs. Payne filed a final report and tendered her resignation. The report was approved and her resignation was accepted. By agreement of the attorneys representing appellant and appellee, her sister, Elmer Johnson was appointed guardian in succession, and continued to act in that capacity until after the death of Mrs. Sager, at which time he was appointed administrator of her estate.' By consent of the parties, the appeals and petition for certiorari were consolidated and tried by the court with the result stated above.

Appellant contends for a reversal of the judgment because the trial court refused to state his conclusions of facts separately from his conclusions of law in compliance with § 1309 of Orawford & Moses’ Digest, which is as follows:

“Upon trials of questions of fact by the court, it shall state in writing the conclusions of fact found separately from the conclusions of law.”

Although the trial court refused to adopt the conclusions of law and conclusions of fact submitted to him in writing by appellant, he did make the following written finding: ‘ ‘ The court having heard the evidence and the argument of counsel, and being well advised in the premises, finds the facts and the law in favor of the appellees.”

This was a sufficient compliance with the statute. State ex rel. Attorney General v. Knights of Pythias, 157 Ark. 266, 247 S. W. 1068.

Appellant also contends for a reversal of the judgment on the ground that the probate court was without jurisdiction to appoint a guardian for the person and estate of Mrs. Sager, or to appoint Elmer Johnson guardian in succession of her estate, assigning as reasons that she was not in court and examined as to her mental condition when the original appointment was made or approved; that the guardian’s bond was executed by nonresidents of the State, and that, as the original appointment was void, the appointment of Elmer Johnson in succession was also void.

The record reflects that the jurisdiction of the probate court was invoked by appellant, and that she signed the guardian’s bond; also that, when she became dissatisfied with the actions of her sister as guardian, she sought by petition to have her removed, but, before the hearing on the petition, one of her' attorneys agreed in open court to the appointment of Elmer Johnson as guardian in succession. These acts on her part clearly estopped her from questioning the jurisdiction of the probate court to make the appointments. 28 C. J., p. 1296.

No error appearing, the judgment is affirmed.