author: Humphreys, J.

text:
    Lance v. Mason.
    Opinion delivered December 12, 1921.
    1. Divorce — parties—right to appeal. — As the husband and wife are the only proper parties to a divorce suit, a third person.could not defend therein, nor appeal from a decree granting a divorce.
    2. Divorce — division of property. — Under Crawford & Moses' Dig., § 3511, providing that a wife who shall obtain a divorce shall be awarded “one-third of all the lands whereof the husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form,” held that the interest of the wife was limited to a life estate.
    3. Fraudulent conveyances — participation in fraud — evidence.— Evidence held not to sustain a finding that a defendant participated in a fraudulent scheme to defeat a divorced wife’s claims for her interest in her husband’s personal property which the husband removed from the. State, or to defeat her claim for future allowances of alimony.
    4. Subrogation — removal of incumbrance. — One who purchased land from a husband, assuming a mortgage which he subsequently paid off, is entitled to be subrogated to the rights of the mortgagee where one-third of the land is subsequently set apart to the grantor’s wife in a decree awarding her a divorce.
    5. Divorce — division of property. — In assigning to a divorced wife her statutory interest out of the lands belonging to her husband subject to a mortgage, she takes her undivided one-third life interest in her husband’s estate, according to value, subject to the payment of a just proportion of a mortgage assumed by her husband as a part of the purchased price when he bought the property.
    Appeal from Crawford Chancery Court; J. V. Bourland, Chancellor;
    reversed in part.

      Johnson <& Shaver, for appellants.
    1. It was. error to grant a decree of divorce in favor of the wife npon her uncorroborated testimony. 38 Ark. 119; 54 Id. 20; 38 Id. 324; 122 Id. 346. And without proof of her residence in the State. C. & M. Dig., § 3505. Appellant is entitled to urge this error (1) because plaintiff is not entitled to dower until the death of her husband. 5 Ark. 608; 31 Id. 576. Nor to dower in the proceeds derived from the sale of lands, but must look to the specific property. 27 Ark. 306. (2) The statute, C.'& M. Dig., § 3511, affords the only remedy open to her to obtain a share of his estate prior to his death, and under it she must allege and prove some ground of divorce.
    2. It was error to decree to appellee one-third of her husband’s undivided one-half interest in the lands, in fee simple. The statute provides an interest for life, not in fee simple.
    3. The court erred in holding that the other two-thirds interest in the land for the payment of the $1,000 in the lands should be charged with a lien to satisfy a judgment in favor of plaintiff for the sum of $1,100, which the court found to be her dower interest in her husband’s personal property. Austin v. Austin, 143 Ark. 222 has no application here. No fraudulent participation in transfer brought home to appellant, and certainly it will not be presumed.
    4. A lien cannot be declared on lands for the payment of future alimony. 38 Ark. 119. And to adjudge a lien in favor of the plaintiff upon her husband’s two-thirds interest in the land for the payment of the $1,100 and future orders of alimony, and to declare this lien superior to appellant’s lien for the money he had paid the Security Mortgage Company, was patent error. §§ 2 and 21, art. 2, Constitution.

      J. jE. London, for appellee.
    Appellant is in no position to urge errors in the divorce proceedings. Moreover no objection was raised to the want of corroboration in the court below. That question cannot be raised here for the first time. 59 Ark. 215; 61 Id. 515; 67 Id. 543; 70 Id. 197; 62 Id. 262. The probate court was entirely without jurisdiction to order the sale of Mrs. Mason’s dower interest in the land. A special statute provides for a proceeding in chancery for the sale of dower interest in land where the wife is insane. C. & M. Digest., § 3561. The court was right in declaring a lien upon the lands for her interest in the personal property removed by the husband out of the State. Austin v. Austin, 143 Ark. 222; 126 Id. 164.
    Appellant, knowing that the appellee was confined in the State hospital for nervous diseases at the time he purchased the lands from the husband, and, in furtherance of the fraud practiced on her, in order to get possession of the lands, paid off the existing mortgage on the lands, will not be protected as against the appellee. 38 Am. St. Rep. 656; 54 Id. 604; 56 Kansas, 724; 39 Id. 599; 95 U. S. 714; 33 Kans. 572; 48 Id. 636; 54 N. H. 213; 107 Mass. 528.
   Humphreys, J.

Appellee instituted suit in the Crawford County Chancery Court against her husband, W. H. Mason, for divorce and division of his property under section 3511 of Crawford & Moses ’ Digest, and for alimony. In addition • to the original bill, in the course of the proceedings she filed an amended bill and a supplemental bill. Two grounds for divorce were alleged: First, that her husband offered such indignities to her as to render her condition intolerable, and, second, deserted her. She obtained constructive service upon her husband, who was residing in Oklahoma when the suit was instituted. W. D. Patton and the appellant, William Lance, were made parties to the suit for the purpose of canceling a deed to the west half of the southwest quarter of section 27 and the east half of the east half of section 28, in township 13 south, range 32 west, in Little River 'County, Arkansas* and containing 240 acres, more or less, executed on the 15th day of September, 1919, to appellant William Lance by appellee’s husband and T. D. Abercrombie, the joint owners of said real estate, and W. D. Patton, guardian for appellee by appointment of the probate court, upon the alleged ground that the conveyance was made for the fraudulent purpose of defeating appellee of her inchoate dower interest therein and her claim for alimony.

Appellant William Lance filed answer, denying the allegations of fraud, and alleged that he purchased the land in good faith; that he paid the joint owners $5,000 each in cash, and as a part of the consideration assumed a mortgage indebtedness against the land in favor of the Security Mortgage 'Company for $5,000 and accumulated interest, which he afterwards paid. The prayer of the answer was in the alternative, first asking for a dismissal of appellee’s cause of action in so far as the rights of appellant were concerned, but in the event appellee was decreed any interest in the lands that it be decreed subject to a proper proportionate charge on a mortgage he had paid to the Security Mortgage Company.

The cause was submitted to the court on the pleadings and evidence, which resulted in an absolute decree of divorce in favor of appellee, a cancellation of the deed, the vesting in appellee of an undivided one-third interest of her husband’s one-half interest in said real estate, free of the mortgage incumbrance, and subjection of the balance of his interest therein, free of incumbrance, to the payment of $1,100 allowed appellee as her interest in personal property removed by W. H. Mason from the State, and to any further sums which might be allowed her as alimony against her former husband. From this decree appellant has duly prosecuted an appeal to this court.

The records reflects that the land in question was purchased by Y. ■ D. Abercrombie and W. H. Mason jointly from John Brazil for $2,000 and the assumption by each of one-half of a $5000 mortgage thereon to the Security Mortgage Company; that on the 15th day of September, 1919, Y. D. Abercrombie and W. H. Mason conveyed same to appellant William Lance, for a consideration of $15,000, $10,000 of which was paid in cash and the balance paid by the assumption of a $5,000. mortgage to the Security Mortgage Company; that the dower interest of appellee was conveyed in the latter deed by her guardian, W- D. Patton, under order of the Crawford County Probate Court, obtained on the application of W. H. Mason. At the time of the execution of the deed appellee was incarcerated in the State Hospital for Nervous Diseases. Appellant William. Lance paid the mortgage of $5,000 to the Security Mortgage Company in December, 1919.

Appellee testified that she and W. H. Mason were intermarried and lived together as husband and wife until about the first day of August, 1919, and without any cause he abandoned her, and, in company with his two daughters by his first' wife, left their home for Oklahoma in his ear; that he afterwards returned and took their two boys, one four and the other six years of age, to Oklahoma with him; that when he did this she went to live at Dyer.

The application to the probate court of Crawford County for an order on W. D. Patton, guardian of appellee, to convey in her stead her inchoate right of dower in said real estate was filed in the probate court on September 15, 1919, and recited that he could sell the real estate at a profit of $3,900, which was for the benefit of himself and appellee, his wife. The judgment of the probate court recited that, after hearing the oral evidence of Y. D. Abercrombie and others, the guardian of appellee, W. D. Patton, is authorized to release appellee’s inchoate right of dower in said land.

W. D. Patton testified that he was guardian of appellee at the time he signed the deed conveying her inchoate right of dower to appellant William Lance; that W. H. Mason came to him and said he wanted him to sign the deed; that he went to Mason’s office and was there shown an order of the probate court directing him to sign it; that he supposed it was all right and signed it; that William Lance was present when he signed it; that he received no money for appellee on account of signing the deed.

William Lance testified as follows: “I live at Foreman, Arkansas. I bought this land from Mason and Abercrombie. I made the bargain with Abercrombie. I went to Little Eiver County to look at it; I then came back home and closed the trade with Mason here; I was at Van Burén and Alma. I did not know whether Mason had a wife until I got back here, and he told me that his wife was in the asylum, and he would have to get an order of the probate court for her guardian to sign the deed. I was present when Patton signed the deed for Mason’s wife. I was to pay Mason $5,000 for his phrt of the land; also paid Abercrombie the same, but there was a second mortgage on the land which Abercrombie had paid off and considerable back taxes and interest. I paid the taxes on the land since. I am now in possession of the land. When I bought this land, it was subject to a $5,000 mortgage which I assumed and agreed to pay. I paid this mortgage in December, 1919. 'There was another mortgage on the place, but Abercrombie paid that off and I took it subject to the $5,000 mortgage. ’ ’

Appellant first contends that the court erred in granting a decree of divorce to appellee. The only necessary and proper parties to a divorce proceeding are the husband and wife. A third party cannot defend against a suit for divorce. The husband and wife were distinctly the parties to the marriage contract, and as a matter of policy it can only be annulled at the instance of one or the other, who is not at fault, upon one of the statutory grounds, or fraud which induced the marriage practiced by one upon the other. A third party, being -without interest in the contract, cannot defend in a suit between the parties in interest to annul it. As appellant could not defend against the divorce proceedings proper, it follows that he could not appeal from the divorce decree, and that branch of the case, therefore, is not properly before us for review.

Appellant’s next insistence for reversal is that the court erred in decreeing appellee a one-third interest in fee simple in her husband’s share of said real estate. Section 3511 of Crawford & Moses’ Digest provides that a wife who shall obtain a divorce shall be awarded “one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property, both real and personal, to which such wife is entitled.”

In the instant case appellee had not relinquished her inchoate dower interest in the real estate in question in legal form. The probate court had no jurisdiction to order the guardian of an insane wife to relinquish the inchoate dower interest of Ms ward in real estate. There is a statute conferring jurisdiction for that purpose upon chancery courts, but not upon probate courts. Appellee not having relinquished her interest in said real estate, and having obtained a divorce, was entitled to a decree for her interest therein, which was a life estate, and not a fee simple estate. It was therefore reversible error for the court to decree her a fee simple interest therein.

Appellant’s next insistence for reversal is that the court erred in decreeing a lien upon her husband’s interest in said real estate to cover her interest in her husband’s personal property which he had removed from the State of Arkansas, and to cover any future allowance of alimony which might be made to her. The lien thus declared upon her husband’s interest in the real estate was based upon a finding by the court that the husband of appellee removed his personal property from the jurisdiction of the court with the fraudulent intention of depriving appellee of her share thereof, and that he conveyed the real estate in question to appellant William Lance for the fraudulent purpose of defeating the rights of appellee, and that appellant participated in the fraud thus practiced by the husband upon his wife, the appellee herein. The finding of the court is without warrant in the evidence. Appellee her’•self did not testify in reference to the conveyance of the real estate. The only evidence found in the record in relation to the conveyance of the real estate is that of appellant and W. D. Patton. The guardian testified that he relinquished appellee’s inchoate right of dower in the real estate at the request of W. H. Mason, who ' stated to him in the presence of appellant that he had obtained an order from the probate court directing him to sign the deed; that he signed it believing it was all right to do so.

Appellant testified, in substance, that he made a tentative trade with Abercrombie for the land; that after inspecting the land he came back and closed the trade with W. H. Mason; that he did not know that Mason had a wife until after he inspected the land; that Mason then informed him his wife was in the asylum, and that it would be necessary to get an order from the probate court for her guardian to sign the deed before the deed could be executed; that he was present and saw the guardian sign the deed; that he paid Abercrombie and Mason $5,000 each and assumed the payment of a mortgage for $5,000 and interest to the Security Mortgage Company; that he paid the mortgage in December following the sale and purchase.

This evidence was insufficient upon which to base a finding that appellant participated in a fraudulent scheme to defeat appellee’s claim for her interest in her husband’s personal property which he removed from this State or her claim for future allowances of alimony. Appellee insists that the facts of this case bring it within the rule announced in the case of Austin v. Austin, 143 Ark. 222, but it does not, for in that case it was conceded that the facts were ample to support the finding of the chancellor to the effect that the conveyance of the real estate to Austin’s mother was fraudulent.

It is true the record contains an application made by the husband to the probate court of Crawford County for an order authorizing appellee’s guardian to convey her inchoate right of dower in the real estate in question and the order of the court directing the guardian to execute the deed. This application and order, however, could not in anywise affect the inchoate dower interest of appellee because the court bad no jurisdiction to entertain sncb an application or make an order thereon. The inchoate dower interest of appellee remained intact after'the order was obtained and the deed executed, as much so as if the order had never been made or the deed executed. She could not be and was not defrauded through the procurement and execution of the order.

Appellant’s last insistence for reversal is that the court erred in decreeing an interest in the land to appellee free from the mortgage incumbrance upon the land. At the time appellee’s husband purchased the land he assumed the payment of one-half of the $5,000 mortgage as a part of the purchase price for his interest therein. Appellant paid the mortgage, and in equity was entitled to be subrogated to the right of the mortgagee, the Security Mortgage Company.

This court has ruled that the interest a wife shall take in her husband’s real estate upon obtaining a divorce is analogous to the interest she would have taken in the estate of her husband, had he died. Crosser v. Crosser, 121 Ark. 64. The rule announced by this court for assigning dower to a widow out of lands belonging to her husband subject to mortgage is that the widow is entitled to an interest in the equity of redemption. Hewitt v. Cox, 55 Ark. 225; Salinger v. Black, 68 Ark. 449; Crosser v. Crosser, supra; Less v. Less, 131 Ark. 232; Mayo v. Arkansas Valley Trust Co., 132 Ark. 64.

The court should have decreed appellee an undivided one-third life interest in the interest of her husband in the lands, according to value, subject to the payment of a just proportion of the mortgage assumed by her husband as a part of the purchase price when he bought the property.-

For the errors indicated the decree, in so far as it affects the division of the property, is reversed and the cause is remanded with directions to enter a decree in keeping with the opinion herein.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    New York Life Insurance Company v. Adams.
    Opinion delivered December 19, 1921.
    1. Insurance — misrepresentation—waiver of forfeiture. — Where an insurance company was advised as to the falsity of representations of the insured upon which the reinstatement of a policy was procured, it was the duty of the company to take advantage of the right to avoid the policy within a reasonable time after discovery of such falsity; otherwise there is a waiver.
    2. Insurance — forfeiture—waiver.—Where a policy of life insurance was reinstated on October 30, 1918, and on Nov. 28 following the insurance company was advised that the application for reinstatement contained misrepresentations, and, without taking steps to declare a forfeiture, it retained possession of an unmatured premium note until January 12, following, on which day the insured died, the delay was unreasonable, and the forfeiture was waived.
    3. Insurance — statutory penalty and attorney’s fee. — Where, in a suit upon a policy of life insurance, no issue was raised as to the defendant’s right to a deduction from the judgment of the amount of an outstanding premium note, and the plaintiff recovered the full amount of the policy, she is also entitled to recover the statutory penalty and attorney’s fee.
    Appeal from Phillips Circuit Court; J. M. Jackson, Judge;
    affirmed.

      Ewing, King & Ewing, and Fmk & Dmning, for appellant. •
    Tbe policy lapsed and a reinstatement was bad, wbicb reinstatement was rescinded when tbe company discovered tbe false statements contained in tbe application tberefor. Tbe period of incontestability provided in tbe policy therefore related from tbe date of tbe reinstatement, which was in effect tbe making of a new contract, tbe old one having become ineffective, and not from tbe date of tbe original policy. 206 Fed. 20, 46 L. R. A. (N. S.) 1056; 83 Fed. 631; 159 N. Y. 411; 220 N. Y. 447; 115 Tenn. 471.
    Tbe reinstatement of tbe policy did not constitute a waiver of ■ a forfeiture, and authorities cited in appellant’s brief and there discussed are not applicable to the question at issue though frequently cited in opposition to appellant’s theory.
    An issue of fact was presented which should have been submitted to the jury, as to whether or not the answers given by the assured to the questions, avoided the reinstatement of the policy. 91 Ark. 337; 97 Ark. 438; 103 Ark. 401; 104 Ark. 267.
    There was not sufficient funds in the hands of the company to continue the policy in force up to the date of the death of the insured, and the policy could not be held to be in force on this ground according to decisions in 68 Ark. 105; 111 Ark. 514; 125 Ark. 372; 144 Ark. 190.
    It is not necessary for application for reinstatement to be attached to original policy or to be made part thereof by reference to enable appellant to avoid the contract of reinstatement either on the grounds of fraud in its procurement or by reason of breached warranties. 105 Ark. 101; 111 Ark. 554.
    Appellant’s request for a peremptory instruction should have been granted, as the uncontradicted testimony shows that the answers to the questions in the application for reinstatement were warranties, and that they were breached by the insured. 58 Arfc. 528, 25 S. W. 835; 72 Ark. 621; 84 Ark. 57; 103 Ark. 201; 120 Ark. 605.
    The court erred in directing verdict for the face of the policy as the amount of an anual premium was due the company. Judgment in any event should not have been for more than $4,732.05. If this be true, the recovery would have been less than the sum sued for, and penalty and attorney’s fee were therefore improperly allowed. 92 Ark. 388; 93 Ark. 84; 117 Ark. 82. Had plaintiff amended her complaint to ask judgment for the face of the policy, less $267.95, the amount of the premium due, she would have come within the rule in 118 Ark. 22, but she failed to do this. The amount clue to the company cannot he said, as in 126 Ark. 483, to have- been insignificant as compared with the face of the policy.

      Bevens & Mundt, for appellee.
    The policy never lapsed for the reason that, upon the dne date of the so-called defaulted premium, the company had in its hands $39.65 unpaid dividends. This sum would have carried the insurance in force until the premium was paid by the taking of a note and check, so that there was never a moment that the policy was forfeited for non-payment of premium. It is the duty of insurance companies to appropriate any moneys it holds for an insured to the payment of his premium to prevent a forfeiture. 68 Ark. 505; 144 Ark. 190; 111 Ark. 514 ; 125 Ark. 372.
    The policy became ineontestible after two years. This period dates from the issuance of the policy and not from the reinstatement of same. 104 G-a. 526, 42 L. R. A. 261; 97 la. 226, 32 L. R. A. 473; 78 Sou. 299, L. R. A. 1918-D 860 ; 247 111. 488; 84 la. 734; 111 N. 3. 391.
    Nothing contained in application for reinstatement can be considered by the court, as said application was not attached to the policy or indorsed thereon, or in any manner made a part thereof, as provided by the terms dí the policy. 108 Ark. 511.
    Penalty and attorney’s fee were properly granted. Appellant did not plead the amount of the note as a set-off in his answer filed, nor raise any question to the amount of the verdict. Conceding liability' for the outstanding note, yet the amount of interest due on the principal would more than equal this sum, so that in no event would the recovery have been for less than the sum sued for. See cases in 103 Ark. 1 and 92 Ark. 378.
   McCulloch, C. J.

This is an action on a life insurance policy issued by appellant on the life of Richard H. Adams, payable to his wife, the appellee. Payment is resisted on the ground that there was a forfeiture for non-payment of an annual premium, that thereafter, in accordance with the terms of the policy, there was a reinstatement, but that the reinstatement was void on account of breach of warranty by false statements concerning the state of health of the assured and the attendance of physicians. The case was tried before a jury in the court below, but the court gave a peremptory instruction in favor of appellee.

The policy was dated August 27,1917, and was conditioned upon the payment, annually in advance, of premiums in the sum of $267.95. The policy also contained the following clause concerning reinstatement after default:

“At any time within five years after any default, upon written application by the insured and upon presentation at the home office of evidence of insurability, satisfactory to the company, this policy may be reinstated, together with any indebtedness * * * upon payment * * * .arrears of premium with 5% interest thereon from due date.”

The advance payment of premiums was made on the issuance of the policy and the premium due August 28, 1918, was also paid at maturity, but the premium due August 28, 1919, was not paid. There was at that time an earned dividend of $39.65 due the assured. After the failure to pay the premium, correspondence between the company and the assured ensued, which resulted in an application by the assured for reinstatement, dated October 10, 1919. The application was in the following form:

“Application for Reinstatement of Policy.

Policy No. 7385267

Amount $5,000.00

All questions must be answered by the applicant.

(Omitting all immaterial questions and answers but questions 4, 5, 6, 7, and answers thereto.)

4. What illness, if any, have you had since the date of the above policy? (If none, so state).

Answer: Influenza.

5. What was the nature of such illness, its date and duration? (If none, so state).

Answer. October, 1918, about two weeks.

6. What physician or physicians have you consulted or been treated by and for what illness or ailment, since the date of the above policy? (If none, so state).

Answer. Dr. EL P. Graves. Influenza.

7. Are you now in sound health?

Answer. Yes.

“I declare on behalf of myself and every person who has or shall claim any interest in or under the above numbered policy, that I made each and all of the foregoing answers; that I have carefully read them over, and find they are written exactly as I made them. Said answers each and all are, and I warrant them to be, full, complete and true. I have made said answers for the purpose of inducing said New York Life Insurance-Company to reinstate my said policy, and I understand that they are each material to the risk,’ and that said company will, and I agree that it shall, rely and act solely upon my said answers in passing upon my application for the reinstatement of the said policy which lapsed for non-payment of premium due on the 28th day of August, 1919, and is not now in force except as may be provided by its non-forfeiture provisions.

“I further agree that said policy shall not be deemed reinstated by reason of any cash paid or settlement made in connection with this application or otherwise, unless and until said company at its home office in acting upon this application shall duly reinstate said policy during my life time and good health, notice of such reinstatement to be promptly mailed to me. *

The application was accepted by the company without further investigation upon the agreement that the dividend of $39.65 due the assured should be applied on the premium, and a lien note in the sum of $228.30 be accepted by the company for the balance, which was done The reinstatement was granted by the company and entered October 30? 1919. The assured died January 12, 1920, the note still remaining unpaid in the hands of the company.

It was shown on the trial of the cause that the statements in the application that the assured was then in sound health and that the extent of the previous illness of the assured was a spell of influenza lasting about two weeks in October, 1918, were untrue in that assured had, for more than a. year prior to that time, been afflicted with serious and critical ailments and was then so afflicted. It is also shown that the statement of the assured in his application to the effect that Dr. H. P. Graves was the only physician who had treated him was untrue in that he had also been treated for serious illness by Dr. E. C. Ferguson, of Clayton, Louisiana, and by Dr. Chamberlain, of Natchez, Miss.

It was shown that the policy contained a clause that it should be incontestable after' two years from date of issue, except for non-payment of premiums.

It is unnecessary to discuss all of the grounds urged by counsel in defense of the trial court’s decision, for, if the undisputed evidence establishes the right of appellee to recover on any ground, the judgment should be affirmed.

There is, as before stated, testimony in the case, at least sufficient to justify submission to the jury of the question whether or not the statements of the assured in his application for reinstatement were false, and, ilj that constituted a defense and there was no waiver, it follows that the judgment must be reversed. There is, however, another question to be .considered, and that is, whether or not, under the uncontradicted testimony, appellant waived the right to insist on a forfeiture of the policy by retention of the cash payment on the premium, and the premium note for the balance, after receiving knowledge of the falsity of the statements.

It is undisputed that appellee, the wife of the assured and beneficiary under the policy, made application to appellant's agent at Memphis oh November 28, 1919, for payment under the disability clause of the policy, ana, m doing so, stated that her husband, the assured, had been under disability about seven or eight months before the last premium became due under the policy, and that he had been under the care of Dr. Craves at Waterproof, Louisiana, Dr. Ferguson of Clayton, Louisiana, and Dr. Chamberlain of Natchez, Miss., all during that time. This information was communicated to the home office of the company by a letter from the Memphis agent of that date setting forth in detail the statements made by Mrs. Adams. This letter acquainted the home office with facts directly in conflict with the statements of the assured in his application, and the company took cognizance of this conflict, and attention to it was called by a letter of Mr. Ballard, one of the general officers, in which it was stated that the statements of Mrs. Adams in her application were irreconcilable with the statements of the assured in his health certificate of October 10, 1919. This letter was addressed by Mr. Ballard to the company’s agent at Memphis and directed an investigation to ascertain the facts in the.case and to obtain a full explanation of the discrepancy between the two statements. This letter was dated Décember 3, 1919. Again, on December 8, 1919, the Memphis agent wrote to Mr. Ballard, the secretary of the company, stating that Mr. Carter, the organizer who had obtained the application for reinstatement and also' the application of Mrs. Adams for payments under the disability clause, had been imposed upon, but that he would in a few days talk with Mrs. Adams and try to get the facts and report them to the company. On December 12, Carter, the organizer, reported to the Memphis agent that he had talked with Mrs. Adams, and that she had insisted that her husband had been sick all of the year, and said that she could not explain why he had made the statement in his application to the effect that he had not been sick. On December 22, 1919, this information was communicated to the home office by a letter from the Memphis agent, and in a reply letter written by Mr. Ballard, the secretary, to the Memphis agent, the facts about the discrepancy between the two statements were again reiterated. Attention was called to the fact that Mr. Carter, the organizer, had not obtained a satisfactory explanation of the discrepancy between the two statements. The letter concluded with the statement that, “if the statements in the application for reinstatement were untrue, we want to know it, because if they were not true the policy contract would be rescinded.” A letter of the Memphis agent to Mr. Ballard, dated December 27, stated, in substance, that Mr. Carter could not give any further information than that already given. Ballard testified that the matter was called to the attention of the medical department of the company for investigation on December 3, but there is no testimony tending to show that an investigation was instituted by that department until after the death of the assured and notice thereof was given to the company. On the contrary, it is clearly inferable from the testimony that the first attempt to gain further information on the subject by communicating with the physicians mentioned was after the death of the assured, when the company was gathering information to defend against payment under the policy. Tne statements in the application for reinstatement at most can only be treated as representations and not as warranties, notwithstanding the application itself declared that the answers to the questions should be treated as warranties of their truth. This is so because 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, at any time within five years after default “upon presentation at the home office of evidence of insurability satisfactory to the company.” The company had no right to enlarge the terms upon which reinstatement could be obtained, and the requirement of a warranty of the truth of the answers was a distinct enlargement of the contract. Treating the answers of the assured merely as false misrepresentation, and not ais a breach of warranty,it seems clear to us that the forfeiture was waived if the company, after full knowledge of the falsity of the answers, retained the unearned premium, as evidenced by the note given by the assured, for an unreasonable length of time and until after the death of the assured. This must be so, for it is a well-settled principle of law that one who is induced by a false misrepresentation to enter into a contract must, within a reasonable time, take advantage of his right to rescind the contract. This principle has been announced in many decisions of our own court, and the principle was applied in the case of Remmel v. Griffin, 81 Ark. 269, in which we held that one who applies for and receives a life insurance policy is required to examine it within a reasonable time after he receives it and will be deemed to have accepted it unless he offers to rescind within a reasonable time after discovery that the policy delivered was not of the kind he contracted for. This duty is a reciprocal one, and is imposed with like effect upon insurance companies, and makes it the duty of the .company, within a reasonable time after discovery of the falsity of the representations upon which the policy or reinstatement was issued, to take advantage of the right to void the contract, otherwise there is a waiver. We decided in Gray v. Stone, 102 Ark. 146, that where the company had a right to cancel the policy on account of misstatement as to age, it waived this right by failing to. return the premiums and cancel the policy after it had received notice of the incorrect statement as to age.

In the ease of New York Life Insurance Co. v. Baker 83 Fed. 647, before the U. S. Circuit Court of Appeals for. the Eighth Circuit, in an opinion delivered by Judge Thayer, in which Mr. Justice Brewer and Judge Sanborn joined, it was said:

“Where statements in the application are made warranties and the policy contains no stipulation that a false statement shall render the policy void, false statements merely render the policy voidable at the option of the company, and, upon learning of the falsity of such statements, the company may waive the breach, and insist on performance of the contract by the insured, or it may, by its conduct, estop itself from taking advantage of a known breach.”

The authorities seem to be clear that the retention of unearned premiums or unmatured premium notes on the discovery of the falsity of representations constitutes a waiver of the forfeiture. 3 Cooley's Briefs on Insurance, 2690 et seq.; 3 Joyce on Insurance, § 1992b; Padronos v. Insurance Co., 142 Iowa 199. It is undisputed that appellant, long before the death of the assured, received reliable information concerning the falsity of the statements made by the assured in his application for reinstatement. Definite information was obtained by appellant as early as November 28, 1919, that the assured had been seriously ill for about a year, and that he had been under the treatment of two physicians other than the one mentioned in his application, and that he was not in good health at that time. This information was shortly thereafter reaffirmed by a statement of appellee to the cornua,ny’s agent. Notwithstanding the receipt of this definite information, the company took no steus to declare a forfeiture, but, on the contrary, retained the note given for the unearned premium. The comuany had no right, with this knowledge, to speculate upon the situation by retaining the note to ascertain whether the assured was going to get well or die. If it desired to take advantage of the- right to avoid the contract on account of the false misrepresentation, the duty rested upon it to at once declare a forfeiture and return the note for the unearned premium.

This brings us to the question whether the time between the receipt of this definite information and the death of the assured was so short that it can be said, as a matter of law, that the company waited an unreasonable length of time. It is generally a question of fact for the determination of a jury whether or not a given time is unreasonable, but the circumstances may be such that the court should declare, as a matter of law, whether the delay is or is not unreasonable. Our conclusion is that in this instance the delay was unreasonable, and that the, court should so declare as a matter of law. Appellant’s general officers had full and complete information in detail concerning the falsity of the statements of the assured in his application. This information was very definite, and stated the length of time of the illness of the assured and the different physicians who had treated him. This information was, as before stated, verified and reaffirmed by the statements of the wife of the assured about December 12, and the additional information was communicated to the company on December 22. The company was bound by the information received by its agent on December 12, whose duty it was immediately to communicate that information to his superior officers at the home office. It is true that the secretary, Mr. Ballard, testified that the matter was turned over to the medical department for further investigation, but there is not a particle of testimony that that department initiated any inquiry until after the death of the assured, and then it was not for the purpose of determining whether a forfeiture should be declared, but for the sole purpose of defending against the claim under the policy. There was a considerable period of complete inaction on the part of the officers of the company, whereas it is evident that further inquiry could have been initiated and definite information obtained from the attending physicians long before the death of the assured. We think, therefore, that the delay was unreasonable, and that the conduct of the company in retaining the premium note for an unreasonable length of time after discovery of the falsity of the answers was a waiver.

It is also insisted that the court erred in rendering judgment for penalty and attorney’s fees, the contention being that the amount of the premium note should have been credited on the policy, and that when so credited it reduced the amount of the judgment below the amount demanded in the proof of loss and in the complaint. We have held that under the statute there can be no imposition of penalty or attorney’s fees where the recovery is for a sum less than the amount demanded and sued for. Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378. Such is not the case here, however, as the appellee demanded and recovered the amount of the policy, $5000, and under the issues presented in the pleadings she was entitled to that sum. It is true that the proof disclosed the fact that there was an outstanding premium note, which appellant would have been entitled to claim in reduction of the amount to be recovered under the policy. Or it could, and still can, recover the amount from the estate of the assured. No remedy for the collection of the amount of the note, or the reduction of the amount of the policy pro tanto was sought in the pleadings, therefore appellant is in no attitude to complain that the court failed to deduct from the judgment the amount of the note. Queen of Arkansas Ins. Co. v. Bramlett, 103 Ark. 1. Under these circumstances, appellee was entitled to recover penalty and attorney’s fees.

The judgment is correct upon the undisputed facts, and should be affirmed. It is so ordered.

Wood and Smith, JJ., dissent.


text:
    New York Life Insurance Company v. Mason.
    Opinion delivered December 19, 1921.
    1. Insurance — delivery of policy. — Where a life insurance policy was mailed by the insurance company to its local agent with instructions to collect the premium and to see that the assured was in good health before delivery of the policy, the mailing of the policy to the agent did not constitute a constructive delivery nor put the policy into force without actual delivery to the assured in person.
    2. Insurance — delivery of policy — sufficiency of proof. — Where a life insurance policy stipulated that the policy should not be in force until delivery to the assured while in good health and upon payment of the premium, proof that the company mailed the policy to its local agent, and that the local agent held assured’s short-term note for the premium, was insufficient to prove that the policy was delivered to assured.
    3. Insurance — delivery of policy on Sunday. — Where a policy of life insurance was delivered to the assured by the insurer’s local agent on a Sunday and was returned by him to the agent, with the request that he keep it for him, and the assured was killed the next morning, the delivery on Sunday being invalid, there was no ratification by retaining the policy until the following morning.
    4. Insurance — delivery of policy — burden of proof. — Where, under the pleadings, plaintiff was bound to show that, notwithstanding the fact that the insurance policy sued on was not in the possession of plaintiff nor in the possession of assured at the time of his death, there was one duly issued and put in force by the defendant, and where the proof introduced by plaintiff showed that the alleged delivery was made on a Sunday, her case failed unless she further proved that there was a subsequent ratification.
    Appeal from Mississippi Circuit Court, Chickasawba District; B. H. Dudley, Judge;
    reversed.

      Ewing, King £ Ewing, and Little, Buck & Lasley, for appellant.
    The court erred in refusing to instruct that Sunday contracts are void unless subsequently ratified. 29 Ark. 387; 106 Ark. 568.'
    The court also erred in refusing to charge that the retention of the policy by appellants agent on Monday would not be a ratification of a Sunday contract, and in giving an instruction to the contrary.

      Davis, Costen & Harrison, for appellee.
    The premium was paid. 94 Ark. 578. The mailing of the policy of insurance to its agent. Humphries constituted a delivery. 97 Ark. 229; 129 Ark. 137; 116 Ala. 659; 67 Am. St. Repts. 154; 42 L. R. A. 88; 101 Fed. 33. The mailing of an insurance policy to the insured, although to the wrong address, constitutes a delivery. 97 Ark. 229. Actual manual delivery is not necessary. 222 S. W. 1064; 14 R. 0. L. 898; 111 Ark. 173; 163 S. W. 1188; 129 Ark. 137; 116 Ala. 659; 67 Am. St. Repts. 154; 42 L. R. A. 88; 101 Fed. 33; 21 Ky. L. Rep. 717; 52 S. W. 959; 68 S. C. 387; 47 S. E. 681.
    Contract not void because made on Sunday. 37 Cyc. 552; 61 Ark. 216.
    Contracts made on Sunday may be ratified on a secular day. 106 Ark. 568; 85 Ark. 471; 44 Ark. 74.
    The contract, although made on Sunday, was not pleaded as a defense. 81 Hun 178; 30 N. Y. Supp. 697; 2 Standard Ency. of Procedure, 37; 73 Ark. 221; 28 Ark. 502; 104 Ark. 79; C. & M. Dig., sec. 1194; 68 Iowa 526; 27 N. W. 507,
   McCulloch, C. J.

This is an action instituted to recover on a life insurance policy alleged to have been issued by defendant, New York Life Insurance Company, insuring the life of Frank B. Mason in the sum of $5,000, and for double that amount if death should result directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause. The policy is alleged to have been made payable to Ruth Mason, wife of the assured, and the suit was brought in her name. She recovered judgment below, and since the appeal was prosecuted to this court she died and the cause has been revived in the name of the special administrator.

The policy of insurance, at the time of the commencement of the action, was not in possession of the plaintiff and was in possession of the defendant, but it was alleged in the complaint that the policy had been duly executed and put into force, and there was a prayer in the complaint that the defendant and its agents be required to file the original application and policy and all correspondence and papers relating thereto. Interrogatories appended to the complaint related to the alleged issuance of the policy, the date thereof, to whom forwarded, etc. The defense, among others, is that there was never any valid delivery of the policy so as to put it into force and effect.

The defendant introduced no testimony at the trial of the cause, but the interrogatories answered pursuant to the demand in the complaint, and the papers filed therewith, were introduced in evidence by the plaintiff.

It appears that the application for the insurance was made by Frank B. Mason on December 7, 1918, to W. J. Humphries, one of the defendant’s soliciting agents. The application was made at Blytheville, where Humphries was soliciting insurance and where Mason resided, and the medical examination was made on the same day and was forwarded through the Memphis office, under which Humphries was operating, and was received at the home office on December 16, 1918. The application signed by Mason contained a stipulation that the insurance should not take effect “unless the first premium is paid and the policy is delivered to me and received by me during my life time and in good health.” The policy was duly written up, signed and countersigned at the home office -and forwarded to the Memphis office for delivery, and was mailed out from the Memphis office to agent Humphries at Blytheville on Saturday, December 21, 1918. Mason was shot and killed at his farm, about 6 miles distant from Blythe-ville, at or about 9 o’clock Monday morning, December 23. The correspondence introduced in evidence by the plaintiff shows that Humphries immediately returned the policy and reported it as undelivered.

The contention of plaintiff in the trial of the cause was that the policy was delivered on Sunday afternoon, December 22, 1918, and testimony was introduced to prove circumstances which tended to establish her claim that there was a delivery made at that time. A witness was introduced who testified that Mason was out at his farm in a car Sunday afternoon, and that witness came back to town with him, and they met a man on the streets who approached Mason in relation to the delivery of an insurance policy, and that Mason told the man to keep it for him, as he was in a hurry at that time.

Conceding, without discussing the evidence at length, that it was sufficient to show that Humphries on the Sunday afternoon mentioned, tendered the policy to Mason, and that Mason accepted the policy but left it, for his own convenience, in the possession of Humphries, constituting the latter his agent so as to make a constructive delivery, the question in the case remains whether or not the delivery of the policy on Sunday put the insurance into force and whether the delivery, if not valid on that day, was subsequently ratified. There was no claim, or effort to prove, that there was a delivery of the policy at any other time or under any other circumstances than as specified above.

The court instructed the jury that the delivery of the policy on Sunday did not constitute a valid delivery so as to put the contract of insurance into force unless it was found that “thereafter, and on some day other than Sunday, the said Humphries held the policy in pursuance of the agreement, if any, with Mason for him and for his use and benefit.”

It is contended by counsel for plaintiff that the mailing of the policy from the Memphis office to Humphries constituted a constructive delivery and put the policy into force without an actual delivery to the insuréd in person. This would be true if the policy was mailed to Humphries unconditionally for the sole purpose of delivery to the assured, but such is not the effect of the transaction if the policy was mailed to the agent of the insurer for the performance of specified duties in making the delivery of the policy. National Life Assn. v. Speer, 111 Ark. 173; Missouri State Life Ins. Co. v. Burton, 129 Ark. 137.

There is no evidence to show that the policy was mailed to Humphries unconditionally for the mere purpose of delivery without having any other duties to perform. The printed instructions filed with the interrogatories on plaintiff’s demand show that the agent was to receive the policy as the agent of the insurer, to collect the premium and to see that the insured was in good health before delivery of the policy, otherwise to return it to the insurer. It is true that there is some evidence tending, to show that the printed instructions thus filed were promulgated on January 1, 1919, after the death of the assured, but even if it be conceded that there is doubt on that point, it leaves the record without any testimony as to Humphries’ instructions, and the burden was on the plaintiff to show that the delivery was made by mailing of the policy unconditionally to Humphries for that purpose. The plaintiff alleged in the complaint that the policy was executed and put into force, and this was denied in the answer, and it was an essential part of plaintiff’s case to prove that there had been a delivery of the policy in compliance with the stipulation that the policy should not be in force until delivery to the assured while in good health and upon payment of the premium. The only proof in relation to the payment of the premium was that a short-term note was executed by Mason to Humphries for the premium, payable on delivery of the policy, and that Humphries destroyed the note after the death of Mason, when he returned the policy to the company.

The discussion recurs, then, to the question whether or not the alleged delivery on Sunday was void, and, if so, whether or not there was a valid ratification thereof. The court, as before stated, instructed the jury that the delivery on Sunday was void, and it must be assumed that the jury based its verdict on a finding that there was a ratification. It has often been held by this court that all contracts executed on Sunday are void. In the first case on that subject, Tucker v. West, 29 Ark. 386, there was an extended discussion in the opinion delivered by Chief Justice English. There is no reason for holding that this rule is not applicable to insurance contracts; in fact, it has been held to be thus applicable. 4 Joyce on Insurance, sec. 2534; Heller v. Crawford, 37 Ind. 279. The written policy is merely evidence of the contract, and under the stipulations contained in the application it was not consummated until the writing was delivered. Hence the delivery of the policy on Sunday, even though the policy was dated on another day, made it a Sunday contract and unenforceable. Counsel for plaintiff undertake to sustain the validity of the delivery on the ground that it constituted a bailment, but the policy is the written evidence of the contract and is not in any sense, as between the insurer and the insured, a bailment. It is contended that, as between the assured and Humphries, the redelivery of the policy to the latter was a mere bailment, but the answer to this contention is that the question of redelivery of the policy to Humphries is not the turning point of this case, for that is not the act upon which the validity of the contract depends. The case is the same as if the policy had been kept by Mason himself when offered to him by Humphries, and the question is whether or not this was a valid delivery. The trial court was correct, as an abstract proposition of law, in holding that a Sunday contract may be subsequently ratified. We have so held in the many decisions of this court on the subject, beginning with Tucker v. West, supra, and coming down to the latest case on that subject, Planters’ Fire Ins. Co. v. Ford, 106 Ark. 568. There is, however, no fact or circumstance in this case which can justify the inference of a ratification of the unlawful delivery on Sunday. The undisputed facts are that after tne alleged delivery of the policy on Sunday afternoon, Mason feft it in the hands of Humphries and at once returned to his farm, where he remained until he was shot and killed, about d o'clock the next morning. The mere retention of the policy, even by the assured himself, for an unappreeiable length of time after the passing of the Sunday on which it was delivered, would not constitute a ratification. If delay in disaffirming or repudiating the delivery would alone, be sufficient to constitute a ratification, it certainly would have to be for an unreasonable length of time, and the short time shown in this case could not come under that rule. There was no opportunity to either ratify or disaffirm the illegal delivery. If it be held that the short time in this case was sufficient, it would necessarily result that if there was no repudiation one hour or one minute after the expiration of the Sabbath day, it would constitute a ratification. The policy itself being yet in the hands of Humphries and he being still the agent of the insurer, even though the illegal delivery had been constructively made, he repudiated the delivery by returning the policy to the insurer. We think there was no valid delivery nor ratification under the undisputed facts, and the court erred in submitting to the jury the question of ratification.

Finally, it is contended by counsel for plaintiff that the question of the illegality of the delivery was not raised in the pleadings. This contention is unsound for the reason that the denials of the.answer were as broad as -the allegations of the complaint and distinctly put in issue the question whether or not there had been a contract entered into between the parties. As before stated, it was part -of the plaintiff’s case under the pleadings to show that, notwithstanding the fact that the policy was not in possession of the plaintiff, nor in the possession of the assured at the time of his death, there was one duly issued and put in force by the defendant, and when the proof introduced showed that the alleged delivery upon which the plaintiff depended to make out a case was on Sunday, her case failed unless she further proved that there was a subsequent ratification.

It follows from what we have said that the evidence ia the case shows that the plaintiff was not entitled to recover, so the judgment must be reversed and the cause dismissed.


text:
    Brown v. Welch.
    Opinion delivered December 19, 1921.
    Prosecuting attorney — fee of deputy on plea of guilty. — Under Crawford & Moses’ Digest, § 8309, providing that it shall be the duty of a deputy prosecuting attorney to prosecute criminal cases before justices of the peace, and that “in the event of conviction, he shall be allowed the same fees as are now allowed by law to prosecuting attorneys in similar cases in the circuit court,” held, that a deputy prosecuting attorney is entitled to a fee on conviction where he filed information which caused the arrest of the accused and attended the court on the day of trial, though accused pleaded guilty.
    Appeal from Clay Circuit Court, Western District; R. II. Dudley, Judge;
    reversed.

      Shcme <£ Batten, for appellant.
    Appellant had the authority, and it was his duty, to file the informations {% 8308, C. & M. Digest). It was the duty of the justice of the peace to issue the warrants, Id. It was appellant’s duty to attend and prosecute. § 8309, Id. He did attend for the purpose of prosecuting, and was present and prosecuting at the time the pleas of guilty were entered as much so as . if there had been a jury trial. He was entitled to the fees. C. & M. Dig. §§ 8307. 4571; 138 Ark. 154; 92 Tenn. 289, 21 S. W. 519; 128 Ark. 287; 46 L. R. A. (N. S.) 662 and note, p. 664; Ann. Cases, 1915-B, 283, 285, 289 and notes; 24 Fla. 153, 4 So. 560; 6 Words and Phrases “Prosecute,” 5737, 5739; Bouvier’s Law Diet., “Prosecute;” 32 Cyc. 6186; 74 Iowa 292, 37 N. W. 376; 92 Tenn. 289, 21 S. W. 519; 2 Words & Phrases, “Convict,” “Conviction,” pp. 1584, 1590; Bouvier’s Law Diet.; 6 Fed. 152; 95 Mich. 543, 55 N. W. 461; 128 Ark. 287; Ann. Cases, 1915-B, supra.

    In so far as pertains to Clay County, and the other counties mentioned in the act 220, Acts 1905 (§§ 8307-9 C. & M. Digest), section 8310 of Crawford & Moses’ Digest was repealed by that act. 112 Ark. 437; 88 Id. 324; 105 Id. 77. Section 8310 is still in force, and applicable to the other counties not included in act 220.
    If the pleas of guilty and the payment of the fees were not under compulsion of the prosecution, then the payment was voluntary and cannot be recovered. 110 Ark. 303, 305; 86 Id. 175; 97 IT. S. 181; 98 Id. 541.

      J. N. Moore, for appellees.
    The fees demanded were not legal unless provided for by the plain letter of the law. A statute fixing a duty upon a public officer does not of itself fix a compensation for the discharge of that duty. 57 Ark. 487; 73 Id. 600; 138 Id. 154.
    Section 6390 Kirby’s Digest (§ 8310 Ci & M. Digest) was not amended, nor repealed, by the act of May 1, 1905 (§§ '6387, 6388 and 6389, Kirby’s Digest). On a state of facts exactly the same as in this case, it has been held that under the above statute the deputy prosecuting attorney was not entitled to the fee. 85 Ark. 382.
    ' Voluntary payment was not pleaded in the lower court but the actions were based on § 4632, C. & M. Digest, hence it is immaterial whether the payments were voluntary, or not. 49 Ark. 361.
   McCulloch, C. J.

Appellant is the deputy prosecuting attorney for the Western District of 'Clay County, and this appeal involves his right 'to demand and receive a fee on conviction in a criminal case in which he filed information before a justice of the peace, caused the arrest of the two appellees and attended the court on the day the trial was to be held, but the accused entered pleas of guilty.

The right of this officer to demand a fee depends upon the construction of the statute applicable to Clay and certain other counties. Section 8308, Crawford & Moses’ Digest, provides that the deputy prosecuting attorney shall have authority to file with justices of the peace information charging persons with the commission of “any offense against the laws of this State,” and section 8309 reads as follows:

“When any person shall have been arrested under a warrant issued in accordance with the provisions of this act, it shall be the duty of the deputy prosecuting attorney to attend and prosecute such charge on behalf of the State, and he shall in like manner attend and prosecute on behalf of the State in any criminal case pending before any justice of the peace, or in the circuit court of his county, when so requested by any such justice of the peace or the prosecuting attorney of the circuit, and, in the event of a conviction, he shall be allowed the same fees as are now allowed by law to prosecuting attorneys in similar cases in the circuit court. Provided, that two may be appointed for Pulaski County.”

It is clear, we think, that the prosecution of a case by the officer, even where a plea of guilty is interposed before the trial of the cause, entitles him to the fee. The cases cited on the brief of counsel show that the legal definition of the word “prosecute,” when used in this sense, includes a conviction under a plea of guilty where the officer performs the preliminary duties in instituting the prosecution and attends the trial for the purpose of conducting the prosecution. This is made additionally plain, too, by the fact that the statute in question amended the former statute, which provided that there should be no fee demanded by the prosecuting attorney except in case the accused entered a plea of “not guilty” and demanded a trial. Those words were eliminated from the statute now in force in Clay County, and this omission is significant in construing the statute.

Counsel for appellee rely on decisions of. this court in other cases where the statute is different; for instance, the case of Phillips County v. Jackson, 85 Ark. 383, is relied on, hut that case was decided under the statute (Kirby’s Digest, § 6389) which limited the right of the deputy prosecuting attorney to demand a fee to cases where the accused entered a plea of “not guilty” and demanded a trial. The digesters have brought forward into Crawford & Moses’ Digest, as section 8310, Kirby’s Digest, section 6390, relating to the duties of deputy prosecuting attorneys in case's before justices of the peace where the accused. have pleaded not guilty and secured the services of attorneys. We need not determine in this case the extent to which Kirby’s Digest, section 6390, was affected by the later statute (‘Crawford & Moses’ Digest, § 8309) further than to say that the law now applicable to this case entitles the officer to a fee when he attends and prosecutes on behalf of the State, whether the accused secures counsel or not, and even where there is a plea of guilty.

It follows that the circuit court erred in holding that appellant was not entitled to the fee demanded. Judgment is therefore reversed, and the cause is dismissed.


author: Wood, J.

text:
    Lynch v. Mackey.
    Opinion delivered December 19, 1921.
    Landlord’s lien — innocent purchaser op warehouse receipt.— Under Crawford & Moses’ Digest, § 6893, providing that “the purchaser or assignee of the receipt of any ginner, warehouse-holder or cotton factor or other bailee for any cotton, com or other farm products in store or custody of such ginner, warehouseman, cotton factor or other bailee shall not be held to be an innocent purchaser of any such produce against the lien of any landlord or laborer,” held that one who purchases cotton stored in a warehouse necessarily purchases the warehouseman’s receipt therefor, and is not an innocent purchaser as against the lien of a landlord.
    Appeal from Mississippi Circuit Court, Chickasawba District; R. H. Dudley, Judge;
    reversed.

      Little, Buck & Lasley, for appellant.
    Tbe fact that a sample of the cotton was exhibited to appellee from which he determined the grade and staple thereof, does not make this a sale by sample. In order to get possession of the cotton, he must first obtain the warehouse receipts, which in effect are the cotton. Under C. & M. Digest, § 6893, appellee could not be an innocent purchaser against the lien of the landlord. See also 69 Ark. 551; 103 Ark. 91. The trial court erred in its finding of fact and declaration of the law.

      Davis, Costen S Harrison, for appellee.
    A purchaser of cotton without notice of a landlord’s lien takes free from any right or claim under the landlord’s lien. 31 Ark. 131.
    There can be a complete delivery of personal property without the property itself being turned over to the other party, where it is of such bulky nature that a symbolical delivery is the only practical way to deliver it. 35 Ark. 190.
    . Sec. 6893, C. &. M. Digest, relates to transactions where warehouse receipts are bought and sold without regard oh the part of the purchaser to the actual cotton itself. Here Mackey bought the actual cotton, and the receipts were merely to identify the cotton and to indicate that Mackey was the owner. The sale was completed before the receipts were delivered.
    In the cases cited by appellant the purchasers of the cotton had knowledge of facts which would put them on inquiry as to whether there was an outstanding landlord’s lien. Here there were no such facts, and appellee was an innocent purchaser.
   Wood, J.

In the year 1920 one Catchings rented a tract of land from B. A. Lynch. He agreed to pay Lynch the sum of $2,000 as rent for the land, which was not paid. Five bales of cotton grown upon the land were stored by Catchings in the Blytheville 'Compress Company, and that company issued to Catchings a receipt for each bale of the cotton, which receipt showed the weight, marks, and number of the respective bales. The receipts, among other things, specified, “This bale of cotton to be delivered to bearer only upon return of this receipt and payment of all charges.” Across the face of each receipt was marked, “Canceled through error 1-5-21,” and signed by the superintendent of the compress company. Along with other cotton, Catchings sdld to one Mackey the five bales of cotton which he had stored with the compress company. The sale was made in the following manner: Catchings procured

from the warehouse company samples of the cotton and took them to Mackey’s office and submitted the samples to him and asked him what he would pay for the cotton represented by those samples. Catchings and Mackey agreed on tñe price and after examining the samples Mackey paid to Catchings the price agreed upon and Catchings delivered to Mackey the compress receipts. Mackey knew at the time he purchased the cotton that it was in the warehouse. The samples exhibited to him had a coupon attached which revealed the fact that it had been stored with the warehouse company. Mackey did not know at the time he purchased the cotton that there was any lien against it for rent. He did not know that Catchings was renting any land. Mackey would not have purchased the cotton if he had not obtained the receipts. After he obtained the receipts he checked them against the samples of the cotton, and these receipts represented the weights of the bales and the location of the cotton in the warehouse. They represented the cotton. Mackey could not get the cotton out of the warehouse without presenting the receipts unless he made a bond.

After he purchased the cotton the receipts were delivered to him. Before the receipts were delivered he had the samples. Mackey could not go to Memphis and sell the cotton without the receipts and get the money on it until he had attached the receipts to a draft. Mackey paid insurance on the cotton after the purchase of same. After purchasing the cotton Mackey sold the same to T. J. Brown. 'Cotton is sold in Blytheville by samples to cotton buyers. The value of the cotton in the bale is estimated by the sample which the seller exhibits and the purchaser inspects. When a bale of cotton is sold and purchased, the purchaser does not consider that he has bought any receipt at all. If a bale of cotton is bought on the street and sold, it is sampled. Cotton in Blytheville is not sold in bulk when it is baled, but by the samples. If a bale of cotton is bought on the street, it is bought on the sample, and the purchaser when he stores it in the compress requires the compress receipts therefor to be delivered to him.

The above are the material facts upon which the appellant instituted this action against Catchings, Mac-key, and the compress company. He prayed judgment against Catchings for the amount of the rent due him, and that an attachment be issued and levied upon the cotton in the possession of the warehouse company and that a landlord’s lien be declared on the cotton to secure the rents due him. Mackey answered the complaint, and denied all of its material allegations, and set up that he purchased the cotton in controversy from Catchings by sample, paying the market price therefor, and that he had obtained possession of the cotton, and that, if it was subject to a lien for rent due appellant as landlord, defendant had no notice thereof and was therefore an innocent purchaser. The cause was tried by the court sitting as a jury. The court among other things found that the preponderance of the evidence showed that Mackey bought the cotton in question on samples, which samples contained a coupon with a number that corresponded to the warehouse receipt number. Thereafter for the purpose of identifying the cotton the warehouse receipts were turned over to Mackey. Upon these findings the court declared the law to be that under the facts Mackey was an innocent purchaser for value of the cotton in question without notice and not merely a purchaser or assignee of the warehouse receipts. Judgment was rendered in favor of Mackey, from which judgment is this appeal.

The court erred in its findings of fact and declarations of law. Sec. 6893, C. &. M. Digest, provides: “The purchaser or assignee of the receipt of any ginner, warehouse-holder or cotton factor or other bailee for any cotton, corn or other farm products in store or custody of such ginner, warehouseman, cotton factor, or other bailee shall not be held to be an innocent purchaser of any such produce against the lien of any landlord or laborer.”

The appellee contends that the above statute was intended to cover transactions involving warehouse receipts where the receipts themselves were sought to be bought and sold without regard on the part of the purchaser to the actual cotton for which the receipts were issued. We cannot concur in such construction of this statute. There can not be a purchase of cotton stored in a warehouse for which a receipt has been issued without also purchasing the receipt. Nor, on the other hand, does the statute contemplate that there can be a purchase of the receipt that does not carry also the right to the actual cotton for which the receipt was issued. Any other construction would ignore the manifest intention of the Legislature in enacting the above statute. The receipt in itself, aside from the farm product for which it was issued, is a mere piece of paper wholly worthless; but it was intended by the framers of this law that a receipt issued for farm products should stand for and represent the products themselves, and that no purchaser of any farm product mentioned in the statute, which had been stored as therein provided and for which a receipt had been issued, could be an innocent purchaser of such product as against the lien of any landlord for rent, or laborer whose labor had contributed to produce the product.

The one who purchases farm products thus stored, under the statute, necessarily in the same transaction purchases and is entitled to the receipt issued as an evidence of the storage and ownership of the product. The fact that the warehouse company produces samples of the product stored with it is only a method by which the owner may show to the prospective purchaser the grade and quality of the article he wishes to sell so as to better enable him to make the sale. But the sale is not complete until the article is delivered, and there can be no delivery of the article until the receipt is surrendered to the warehouse company, except at the risk of such company. Therefore, the transfer or delivery of the receipt to the purchaser in contemplation of the statute is the essential transaction and a pre-requisite to the sale of the product. See Noe v. Layton, 69 Ark. 551; Jacobson v. Atkins, 103 Ark. 91. It follows that the court erred in its findings of fact and declarations of law. Therefore the judgment in favor of the appellee dissolving the attachment is reversed, and the cause is remanded with directions to subject the cotton in controversy to the payment of the appellant’s judgment for rent.


text:
    Pryor v. Pryor.
    Opinion delivered December 19, 1921.
    1. Divorce — personal indignities. — 'Evidence of personal indignities is insufficient which does not establish any settled hate or any condition of enduring alienation and estrangement.
    2. Divorce — uncorroborated testimony of parties. — Divorces are not granted upon the uncorroborated testimony of the parties.

      Appeal from Miller Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      B. E. Carter and J. M. Carter, for appellant.

      Arnold & Arnold, for appellee.
    The court erred in overruling the motion to make the complaint more specific. There was no merit or equity in the suit. Nelson on Divorce and Separation, § 333. The testimony was not sufficient'because there was no corroboration. 114 Ark. 518; 105 Ark. 194.
    The resumption of the marriage relation amounted to a condonation of past causes of divorce. 86 Ark. 56.
    Husband and wife are competent witnesses in divorce cases. 38 Ark. 119; 38 Ark. 324; 54 Ark. 20. Uncorroborated evidence is not sufficient. 34 Ark. 37; 104 Ark. 381; 102 Ark. 54; 99 Ark. 94; 122 Ark. 346; 122 Ark. 376.
   Wood, J.

This action was instituted June 22, 1920, by the appellant against the appellee for a divorce. The complaint is in part as follows: “That on June 29,1911, the plaintiff and the defendant, John H. Pryor, Jr., were lawfully married at Hamburg, in the State of Arkansas, and that after that time until recently lived and cohabited together as husband and wife at Hamburg, Arkansas; that no child was ever born to the plaintiff and defendant as a result of this marriage. Plaintif says that the defendant is a resident and citizen of Ashley County, in the State of Arkansas, now and has been for a number of years next past, and that the plaintiff is now a resident and citizen of Miller County, Arkansas. The plaintiff says that recently and for several years prior to the present time since their marriage the defendant has been guilty of such cruel and barbarous treatment as to endanger the plaintiff’s life and has offered such indignities to her person as has rendered her condition intolerable, and that because thereof and for the protection of her life and health and to protect herself from such indignities so offered to her person by defendant, she has been compelled to cease cohabiting and living with the defendant as his wife, and she is now residing at Texarkana, Arkansas, with her father, Rev. F. M. Brewer.” The complaint further sets forth that the defendant is possessed of real estate of the value of more than $18,000, and of personal property consisting of household goods of the’ value of $1,000, and a stock of groceries of the value of more than $8,000. She prayed for a decree “dissolving the bonds of matrimony and- for alimony as the law provides.”

In his answer the appellee denied all material allegations of the complaint, and, among other things, he says “that he has always and at all times treated the plaintiff with great consideration, love and affection; that he always provided for her really better than his finances would permit; that at the time plaintiff left his home the last time it was well understood that she was merely making a social visit to her parents and would soon return to the defendant as his wife; that after she left she advised the defendant from time to time through letters that she would soon be back to her home and defendant; that, after plaintiff was gone an undue length of time, defendant wrote her a letter urging her to come home; that plaintiff took -exceptions and appeared to get very angry at this defendant on account of this letter, and advised him that she did not intend to return to him as his wife, and this was the first intimation that this defendant had of any trouble. The defendant further says that he has very limited means. He then sets forth the proportv. real and personal, which he possesses, and alleges that the brick store buildings which he owns are of the value of $10,000, incumbered by a mortgage of $7,503.63; that his dwelling is of the value of $1,000, that his groceries and fixtures are of the value ■of $2,500, and his household and kitchen furniture of the value of $600, and that he is indebted, in addition to the mortgage above mentioned, in the sum of $1,800. He then alleges that ‘ his arms and home are open for tlie return of the plaintiff at any time; that he loves the plaintiff, and is moré than ready to forgive her imprudence in' bringing this suit; that, although his business is in a precarious condition, and he is heavily involved and burdened with debts, and he is just barely able to make sufficient money to meet his interest payments, he stands ready to pay all costs and expenses incurred in this suit by the plaintiff, if she will return to him as his wife. His prayer is that the complaint be dismissed.

On the 21st day of December, 1920, the same being a regular day of the September term of the Miller Chancery Court, the court overruled a motion of the appellee for continuance and proceeded to a trial of the cause upon the pleadings and depositions of the appellant, her father, her sister, the testimony of three physicians testifying as experts, and four witnesses who testified as to the property, real and personal, of the appellee and its value. The appellee, at that hearing, did not adduce any testimony. After hearing the above testimony, the court took the cause under advisement and on December 22, 1920, entered a decree in favor of the appellant, dissolving the bonds of matrimony, and also rendered a decree in her favor awarding her one-third of the husband’s personal property absolutely and one-third of all his lands, as provided in § 3511, C. & M. Digest. At the same term of court, the appellee moved to set aside the decree. The court heard the motion and granted the appellee thirty days’ time in which to take depositions, ■announcing that, when the evidence for the appellee was in, the cause would be tried on its merits, but refused at that time to set aside the decree. Later in the term, the court, being about to adjourn, set aside the decree. At the next, the March term of the court, on the 2nd day of April, 1921, the court heard the cause upon the depositions of the witnesses adduced on behalf of the appellant and also the depositions of the witnesses on behalf of the appellee, and rendered a decree dismissing the appellant’s complaint for want of equity, and in her favor for all the costs she had expended. Prom the decree dismissing appellant’s complaint for want of equity she prosecutes this appeal.

If there had been no other testimony than that adduced by the appellant at the first hearing of the cause, we would without hesitation decide that she was entitled to a divorce. The decree of the court on the first hearing of the cause, bottomed alone upon the evidence adduced by the appellant, was undoubtedly responsive to that evidence. But the testimony adduced on behalf of the appellee in several important and essential particulars was in direct conflict with the testimony adduced on behalf of the appellant. The testimony on behalf of the appellee furnished an explanation of the conditions and situations, which, unexplained, would have entitled appellant, as we have said, to a divorce. The physical disability of which the appellee was a victim came upon him after marriage, and, according to the testimony of the appellant, began about four years before she left the appellee, and became complete about eighteen months before their separation. This was not of itself a ground for divorce. If, however, the appellee was so afflicted, and notwithstanding this, he continued to subject the appellant repeatedly to the humiliation-and indignities which her testimony tended to disclose, then undoubtedly the conduct of the appellee in this respect would have rendered the condition in life of appellant intolerable; because, according to her testimony, the frequent and continuous annoyances and embarrassments to which appellant was subjected on account of the physical ailment of the appellee were fast undermining her health. The testimony of the appellant tended to prove 'that the course of conduct of the appellee toward her was so persistent and so unnatural because of his physical ailment that it brought her almost continuously under a mental and physical strain which was making her nervous and hysterical and. rapidly destroying her otherwise strong constitution and her .buoyant and happy disposition.

The opinion evidence of medical experts, based upon the assumption that the facts were true which the testimony of the appellant tended to prove, was to the effect that the conduct of the appellee was impairing the health of the appellant and would, if continued, finally render the appellant a mental and physical wreck. Therefore, if there had been no testimony on the part of the appellee to refute this testimony of the appellant and her witnesses, she would unquestionably have been entitled to a decree of divorce on the ground that the conduct of the appellee toward her had subjected her person to such indignities as to render her condition in life intolerable. We should say, en passant, that the other grounds upon which the appellant relies, and which, through her own testimony and the testimony of her father and sister, she brings forward as incidents tending to prove that the appellee was guilty of such cruel and barbarous treatment as to entitle her to a divorce, are not worthy of consideration; for, if their testimony as to these grounds were undisputed, it does not establish that there was any “settled hate” or any condition of enduring alienation and estrangement on the part of the appellee toward the appellant. Rose v. Rose, 9 Ark. 507; Kurtz v. Kurtz, 38 Ark. 119; Malone v. Malone, 76 Ark. 28.

In the leading case of Rose v. Rose, supra, it was held that the personal indignities contemplated by the statute as rendering one’s condition intolerable included, “rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumely, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule, and every plain manifestation of settled hate, alienation and estrangement.” It was also there held that to constitute grounds for divorce these manifestations must be “habitual, continuous and permanent. ’ ’

In view of the above requirements of the law, most of the incidents related by the appellant to show studied neglect and unmerited reproach of, and open insult to, her must be considered rather as mere passing trivialities and temporary ebullitions of temper, which, according to the correspondence between the parties, seemed to have been mutually forgiven and forgotten, as they should have been, until about a month before the institution of this unfortunate action. If the holy bonds of wedlock — the sacred union between husband and wife — could be sundered by such manifestations and occurrences, then the duties and obligations which these bonds impose would soon be even more lightly assumed and more often ignored than they are at the present time, all to the great detriment of society. As was said by Judge Eakin, speaking for the court in Kurtz v. Kurtz, supra): “The great and predominant obligation of mutual forbearance and mutual forgiveness would soon sink from sight, and society would be delivered over to all the evils which civilized government have anticipated in the looseness of the marriage tie. Those who assume those ties should do so gravely, and take each other not only ‘for better’ but ‘for worse’ also, if life be endurable in any tolerable shape. They should be driven by necessity to conciliate each other rather than to aggravate dissensions with the hope of separation.” See also Arnold v. Arnold, 115 Ark. 32-43, where'we said: “The love and faith that are plighted when parties stand at the marriage altar should suffer long and be exceedingly kind. 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. ’ ’

So, we conclude that the only possible ground for divorce revealed by the testimony of the appellant is that relating to tbe physical condition of her husband and his treatment of her because of such condition. But the burden is upon her to establish this ground for divorce by a preponderance of 'the evidence. This, as we view the record, she has wholly failed to do. Neces■sarily the only method by which the testimony of the appellant as to the physical condition of the appellee could be corroborated would be by the admissions of the appellee, or the testimony of appellee’s physician, or some one else who had knowlelge of such alleged condition. The appellee, in his testimony, flatly contradicts the testimony of the appellant that he had been afflicted for the length of. time and to the extent that the testimony of the appellant tended to prove. But, even if he had admitted that her testimony in this respect was entirely true, still this would not entitle her to a decree of divorce; because the law as announced by this court in numerous cases is “that divorces are not granted upon the uncorroborated testimony of the parties and their admissions of the truth of the matters alleged as grounds therefor.” Sisk v. Sisk, 99 Ark. 94-97; Rie v. Rie, 34 Ark. 37; Kurtz v. Kurtz, supra; Brown v. Brown, 38 Ark. 324; Scarborough v. Scarborough, 54 Ark. 20; Kientz v. Kientz, 104 Ark. 381; Shelton v. Shelton, 102 Ark. 54; Johnson v. Johnson, 122 Ark. 276.

The appellant and her sister, in their testimony, claimed that the appellant’s testimony as to the physical condition of the appellee was corroborated by certain statements made to them by the family physician of the appellee, Dr. W. S. Norman. Their testimony as to his statements to them concerning appellee’s physical con-' dition was pure hearsay and therefore incompetent. After their depositions were taken Dr. Norman waived his privilege as a physician and testified concerning the physical condition of the appellee. He emphatically contradicted the testimony of the appellant and her sister. He testified that he did not tell Mrs. Pryor that Mr. Pryor’s condition was wrecking her health, as testified to 'by her, nor did he say anything to her that could have been truthfully considered that way. “Mr. Pryor’s condition,” says he, “was not such at any time as to interfere with the condition of Mrs. Pryor’s health at all. He never in his life had any conversation with Mrs. Gregory (appellant’s sister) concerning Mr. Pryor’s alleged physical condition, nor with any one else in her presence.” Therefore, under familiar rules of law announced in numerous decisions of this court, appellant’s contention, namely, that the physical condition of the appellee and his treatment of her by reason thereof were wrecking her health and rendering her condition in life intolerable, is not sustained by a preponderance of the evidence.

Having reached the conclusion that appellant is not entitled to a decree of divorce, we have purposely refrained from setting out and discussing in detail the testimony of the witnesses, and have commented upon the facts in the most general way for the reason that the facts in detail would not be useful as a precedent. The facts do not call for the application of any legal principles that have not already been declared in many opinions of this court. Furthermore, the parties in their intense zeal to maintain their respective contentions have opened to our view the book of their innermost family secrets, some of the chapters of which are too indelicate to be made a perpetual memorial in the reports of this court. In this connection, however, we ought to say that marriage is a divine institution. As a consequence thereof, it is ordained by the laws of God and man that children shall be brought into the world. The family throughout all Christendom is the primal unit of organized society, and children are the bond of mutual sympathy, love and care that cement home ties and bind closer together husband and wife. The higher the ideals and the more perfect the government of children in the home, the more perfect will be the government of the Státe. When young people, therefore, enter into the bonds of matrimony, they should expect, and at least be willing, that children should be born to them. The testimony tends to prove that the parties to this deplorable lawsuit resorted to artificial expedients to prevent conception and the consequent birth of children. We are convinced that this defiance of the holy laws of wedlock is the principal cause of much of their mental and physical suffering and the train of connubial infelicities which have overwhelmed their household. Doubtless “there was the weight that pulled them down.”

Since, under the law, the bonds of matrimony cannot to be severed, it were infinitely better for their future happiness, that the censure of each other which they have brought into this record be mutually forgiven, and, if possible, forever erased from memory’s page. It is certain that further publicity by a rehearsal in more minute detail of the testimony showing the particular facts which were the causes of their now unhappy state would only tend to open wider wounds that are already gaping. Therefore, we here drop the curtain upon certain scenes in this unhappy drama, which, we opine, were staged by the parties only for the observation and consideration of the judges of this court. Let the decree be affirmed.


author: Hart, J.

text:
    St. Louis-San Francisco Railway Company v. Pace.
    Opinion delivered December 19, 1921.
    Railroads — injury to colt — negligence.—An agreed statement to the effect that, after the defendant’s engine had passed plaintiff’s colt, the colt began running along the defendant’s track close to the train, and continued to do so until it reached a gulch and was killed, and that the train crew saw the colt’s danger and could have saved it by stopping the train, held to support a finding of negligence on the part of the defendant.
    Appeal from Randolph Circuit Court; J. B. Baker, Judge;
    affirmed.

      W. F. Evans and W. J. Orr, for appellant.

      Pope é Powers, for appellee.

      The statement of facts shows a prima facie case of negligence on the part of the defendant, and the burden is upon it to explain away that negligence. 37 Ark. 562; 33 Ark. 816; 42 Ark. 122; 39 Ark. 413; 54 Ark. 214; 57 Ark. 137; 104 Ark. 500; 104 Ark. 38; C. & M. Digest, sees. 8570 and 8574.
    The judgment should be affirmed under section 2175 of C. & M. Digest.
   Hart, J.

N. E. Pace sued the St. Louis-San Francisco Bailway Company to recover the value of a colt alleged to have been killed on account of the negligent operation of one of the defendant’s trains.

The case was tried before the court sitting as a jury upon an agreed statement of facts which is as follows:

“It is agreed that on the 1st day of November, 1920, the colt of N. E. Pace was on the right-of-way of the Frisco; that after the engine of the north-bound local on said day had passed said colt, the colt began running up the track close beside the train, and on account of its diminutive size it ran along under the side of the car. There was a wire fence on the right side of the right-of-way on which said colt was running. Said colt continued to run alongside of said train for a distance of about 300 yards. There was a trestle on the railroad over a deep gulch ahead of said colt. The train crew on said local saw said colt and knew that there was a trestle ahead of the said colt. Said train could have been stopped, and the colt could have been removed from the right-of-way. Just when said colt reached the gulch across the track, it seemed to stop suddenly and turn a little toward the train and then fell headlong into the gulch. Before it went into the gulch, it was within a few inches of the train. When the colt was reached, it was dead, and was immediately buried. Said colt was of the value of $100.”

The court found in favor of the plaintiff, and from that judgment rendered the defendant has appealed.

In Paragould Southeastern Ry. Co. v. Crunk, 81 Ark. 35, the court held that while ordinary care does not generally require a train to be stopped in order to avoid injury to stock on the track, there may be facts which make it defendant’s duty to stop to avoid an injury which would otherwise occur. That principle controls here. If the colt ran into the trestle to escape the approaching train negligently driven forward by the servants of the company, it was responsible for the killing of the colt by falling into the trestle.

On the evidence agreed upon, it was open to the court to find that the defendant’s track was fenced, and that the colt was running along inside the right-of-way near the train towards a trestle over a deep gulch; that the colt was running along in apparent fright of the train toward the trestle, and that the train was being moved forward toward it and thereby caused the colt to continué its flight along the side of the track into the trestle.

Under the agreed-statement of facts, the court might have found that under the surrounding circumstances there was such obvious danger of the colt running into the trestle as to impress upon the engineer the necessity of removing the cause of the colt’s fright by stopping the pursuing engine.

It follows that the judgment must be affirmed.