text:
    Continental Casualty Company v. Erion.
    4-2862
    Opinion delivered February 27, 1933.

      Bonham & FulJc, for appellant.

      Billon i& Robinson, for appellee.
   Butler, J.

Action on an alleged oral contract of insurance ; trial and judgment in court below for the plaintiff.

Among the errors assigned and argued here by the appellant is that the trial court erred in refusing to grant its motion for a directed verdict in its favor. The reasons assigned are: (1) The agent, who it is claimed made the oral contract, was merely a “soliciting1 agent” and there was no competent substantial evidence that he had apparent authority to hind the appellant by his alleged act; (2) there was no premium paid and no consideration for the contract; and (3) that by the express agreement of plaintiff, if any valid agreement had been made, it ceased to exist before the date of the injury -for which liability is claimed.

The trial court submitted to the jury the question of the agent’s apparent authority by instructions which are correct if based upon substantial evidence. We discover no essential conflict in the testimony, and as to all the material facts it may be said that the evidence is undisputed.

One Collins was the agent of the appellant to solicit and obtain applications from railway employees for insurance against accident and sickness and to transmit such to the appellant’s home office for its acceptance or rejection. This was the extent of his authority, and in the face of the application he was designated as a “soliciting agent” in this way; at the head of the application was a statement that the blanks were to be filled in and signed by “the soliciting agent,” and in the blank left for the signature appeared the name of Collins.

On September 8, 1931, Collins solicited and obtained the signature of the appellee, who at that time was a railroad employee,'to an application for insurance and told him that the insurance would be effective and begin on that date. The application was received at the home office of the appellant on September 14, 1931, and after some investigation it declined to issue its policy, but wrote Collins on September 18, following that waiver of claim for a certain ailment which it knew appellee at one time suffered be obtained, and stated that, upon the receipt of the signed waiver, “the matter of the policy issue will have our. further attention.”

In the meantime (September 10th) appellee had been “laid off” by the railroad company and while working at Ms home had suffered an injury (September 18th) to his leg which caused him to enter a hospital for treatment some days later, where he was when Collins got appellant’s letter. This letter and the unsigned waiver he returned with the notation “applicant is now in the hospital with an injured leg. ’ ’ After receipt of the unsigned waiver and the information relating to appellee’s condition no further action was taken and no premium was demanded or received. In this connection it may be stated that accompanying the application was a written instrument signed by the appellee to his employer directing it to pay out of appellee’s wages the monthly premiums as they became due. The first premium payment was to be deducted out of his October wages. In this order the following stipulation was made: “I understand and agree as to the duration of my said insurance: (1) that after my policy takes effect the payment of each installment of premium shall continue it in force as stated in “Period Schedule” appearing below, all such periods to be computed successively from the date of the policy; (2) that the failure to pay any installment of premium for- any reason whatsoever shall terminate my said policy as of the expiration of the period from the wages of which such installment was to have been paid, except as it may be continued in force by reason of premium previously paid; (3) that if I shall cease to be in the service of the employer to whom this order is directed, this insurance shall terminate at once without notice, except as it may be continued in force by reason of premium previously paid.”

On September 29 appellee made proof of his disability and demand for the disability benefit. It appears that at a prior time appellee had a policy with appellant company under which he had received payment for disability benefits, but which afterwards he had allowed to forfeit for failure to pay the monthly premiums. Replying to appellee’s demand, appellant called attention to this fact and advised him that there was no insurance outstanding. Appellee wrote in reply that he was not claiming on that policy but on “a new contract” made by Collins, its agent, on September 8th.

In support of his contention, appellee argues (a) that in the correspondence last above mentioned there was an effort to deceive and an indication that Collins had authority to make the agreement that insurance should be in force on and after September 8, and as a further indication of this it is argued that a previous policy bore the same date as the application. These further proved facts are urged as evidence that in making the agreement Collins was acting within the apparent scope of his authority, namely, (b) that in settlement of a previous claim he had received from Collins a draft drawn on appellant for the amount of the claim less a due premium; (c) that he knew what authority Collins had from what he said, and that while in the hospital he had been told by Collins that the insurance was in effect; (d) that the order on the railway company for deduction from wages for insurance premiums had been retained by appellant; (e) that while in the hospital he had been given by Collins the form for his preliminary notice of disability; and (f) principally, that the form of the requisition of appellant to the Commissioner of Insurance of the State of Arkansas and the latter’s license issued thereon was sufficient to submit to the jury the question of the apparent authority of Collins to contract for and bind the appellant by the act in question.

Giving to these facts their greatest weight and indulging in every legitimate inference reasonably deducible from them we cannot see anything which would fairly sustain appellee’s view.

(A) For the sake of brevity we refrain from setting out the correspondence relative to the present demand of the appellee as we cannot see how any fair interpretation of this correspondence can be construed as an effort on the part of the appellant to deceive him, or how it could have deterred him from asserting whatever rights he might have had, as it has developed he was in possession of the knowledge of all the facts known by the appellant and of others of which at the time appellant did not know, and conld not he expected to have known.

(B) That in the consummation of a previous transaction Collins had drawn a draft upon the appellant for the sum due, as agreed upon by the insurer and the insured, appears to us to have in it no element which would lead a reasonable person to believe that he had authority to do any act which bore no relation to this transaction. Neither could the fact that a previous policy bore the same date as the previous application indicate that in a subsequent transaction Collins would have the authority to make an oral agreement that the insurance should be in force from the date of that application.

(C) What Collins might have said to the appellee regarding the extent of his agency and the binding force of his verbal agreement is unavailing to the appellee, and the evidence of it incompetent under the well-known rule that the extent and nature of an agent’s authority to act for and bind the principal cannot be proved by his declaration made in the absence of the party to be affected by them. Turner v. Huff, 46 Ark. 222; Dennis v. Young, 85 Ark. 252, 107 S. W. 994.

(D) The order given on the railway company for deduction from wages for insurance premiums was valuable only if and when the policy was written, and, as the application was not accepted, it would be immaterial what became of it and its disposition would have no evidentiary value.

(E) While appellee was in the hospital, he requested Collins to procure for him the form for giving his “preliminary notice.” This Collins did — how or where he obtained it was not shown, but however it was obtained there is no showing that, prior to the date of the oral contract or at the time of it, Collins had these forms in his possession, or, if so, that appellee knew of it. Whatever was done after the application could not have influenced the action and belief of the parties at or before the time.

(F) Appellee relies principally on the requisitions for and license issued to Collins as evidence warranting the submission to the jury of the question of Collins’ apparent authority. The requisition and the license are as follows: “This is to certify that the Continental Casualty Company of Hammond, Indiana, has appointed Paul Collins of Little Rock, Arkansas, agent for the transaction of its authorized business of insurance in the State of Arkansas for the term ending March 1, 1932.”

“Whereas, the Continental Casualty Company of Hammond, Indiana, is authorized until March 1, 1932, to transact the business of insurance in this State in accordance with license issued to said company,

“Therefore, I, the undersigned, Commissioner of Insurance of the State of Arkansas, in pursuance of instructions received from said company, do hereby license Paul Collins of Little Rock, Arkansas, as the agent of said company in the conduct of its authorized business in this State, untl March 1, 1932, unless his appointment as such be sooner revoked or otherwise terminated.”

These were on forms which were not the work of the appellant, but which were prepared in compliance with §§ 6060 and 6062 of subdivision 5 of chapter 98 of Crawford & Moses’ Digest, under the title “Insurance,” which the insurance companies were required to use. These statutes recognize that there are different classes of agents representing insurance companies, and require that they be regarded as agents of such and render ineffective any provision in the applications or policies to the contrary and are as follows:

“Section 6060. No person shall act as agent or solicitor in this State of any insurance company of another State or foreign government, in any manner whatever relating to risks, until the provisions of this act have been complied with on the part of the company or association, and there has been granted to said company *or association, by the Insurance Commissioner, a certificate of authority showing that the company or association is authorized to transact business in this .State.”

“Section 6062: Companies to which certificates of authority are issued, as provided by § 6060, shall from time to time certify to tlie Insurance Commissioner and State Fire Marshal the names of .the agents appointed by them to solicit risks, issue policies or receive applications in this State; and no such agent shall transact business until he has.procured from the Insurance Commissioner and State Fire Marshal a certificate showing that the company has complied with the requirements of this act, and that the person named in said certificate has been duly appointed its agent.”

Since the requisition and license were not prepared by the appellant company but by the Insurance Commissioner and are based on the above statutes, they can have no greater or other effect than the statute itself. It seems settled that statutes such as those quoted supra are not intended to, and do not, have any effect upon the agent’s powers to bind the principal, nor do they change the general laws of agency, the powers of an agent being and remaining those only which his principal has expressly or impliedly conferred upon him, to be determined by the applicable principles of the common law relating to principal and agent. Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676; Sun Ins. Co. v. Scott, 284 U. S. 177, 52 S. Ct. 72; Eikelberger v. Ins. Co. of N. A., (1920) 107 Kan. 9, 190 Pac. 611; Md. Gas. Co. v. Seay, 56 Fed. (2d) 322; Wood v. Fireman’s Fire Ins. Co., 126 Mass. 316.

Counsel for appellee appear to concede the correctness of the rule stated, but argue that the form and language of the requisition and license extend the real or apparent scope of authority so as to bind the principal for all of the agent’s acts, or at least raise the question of fact to be determined by the jury from the language used. The case of Mass. Bond & Ins. Co. v. Vance, 74 Okla. 261, 180 Pac. 693, 15 A. L. R., page 981, is cited as sustaining this contention. In that case the requisition of the appellant company on the Insurance Commission for agent’s license is the one point of similarity of it with the case at bar, and whether or not the applicant knew of it or was acquainted with its language before or at the time his application for insurance was made is not disclosed. There, the applicant, a traveling salesman, who habitually carried accident insurance, remembering that his policy was about to expire, was directed to one Evans as an insurance agent and had an interview with him in the office and in the presence of the company’s district manager. He told Evans that, unless the insurance would take effect at once, he did not want it. Evans, in the presence of the district manager, assured him that the insurance would take effect immediately, and the application was accordingly signed and a part of the first premium then and there paid and the remainder taken the next morning to the office of the district manager where it was paid to a person in charge of the office who delivered to the applicant the agent’s receipt prepared by him and left in the office the preceding evening. There was a delay in the acceptance by the company of the application and of the issuance of the policy and in the interval an injury occurred. Liability was denied, but the premium was retained, and no offer made to return it until after suit was filed and just before the trial. On this evidence a recovery was allowed, and in the course of the opinion upholding the judgment of the court below appears language which indicates that the submission to the jury of the case would have been warranted on said requisition alone. Were we disposed to follow all the implication contained in that opinion in a similar state of case, we do not in the case at bar, if for no other reason, because of the difference in the facts.

In order for any conduct of a principal with respect to the agent, or of the agent, known or which ought to have 'been known to the principal, to bind the former for the latter’s act as done within the apparent scope of the agent’s powers, such conduct must have been of that character as would justify the reasonable belief of the agent’s authority, and that those dealing with the agent knew of the conduct of the principal or of the agent and relied upon it. The rule is thus stated at page 574, § 213, 2 C. J.: “It is essential to the application of the above general rule (as to apparent authority) that two important facts be clearly established: (1) that tbei principal held tbe agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as haying such authority ; and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority.”

The application of this doctrine to the facts in the instant case makes the form of the requisition and license unavailing to the appellee, for according to his own admission he had no knowledge of the existence of either until after this controversy arose, and therefore could not have been influenced by them in judging what was the apparent scope of the agent’s authority.

On an examination of Gibson v. Continental Casualty Co., 178 Ark. 1091, 13 S. W. (2d) 621, the principal case from this court relied upon by the appellee, it will be seen that the act from which the agent’s power was determined. was performed in the course of the taking of the application. This was the filling in of blank forms furnished by the principal to the agent for that purpose, one of the blank lines being for the date the policy was to become effective. In New Hampshire Fire Ins. Co. v. Walker, 178 Ark. 319, 11 S. W. (2d) 772, it was held that the fact that an agent of a fire insurance company had authority to write insurance and issue policies at one place was not sufficient to warrant the submission of the apparent authority of that agent to write insurance in another territory and bind his company by an oral contract for insurance.

In Gibson v. Continental Casualty Co., supra, the court, in differentiating that case from the case of New Hampshire Fire Ins. Co. v. Walker, supra, said: “There is no- testimony in the instant case that disputes the authority of the agent Henderson to fill the blank, thereby stating the date when the accident policy became effective. We have already said that this action on the part of the agent was within the apparent scope of his authority. Of course, if be bad no right to make this, and bad not bad tbe blanks for tbe purpose of filling them up, or if tbe undisputed proof showed that be bad no authority to fill tbe blanks or to make tbe contract, then, of course, it would be controlled by tbe case of New Hampshire Fire Ins. Co. v. Walker, supra.”

In tbe case at bar, as already observed, tbe proof is uncontradicted that Collins bad no actual authority to make tbe oral contract and performed no act before tbe application from which bis authority might be inferred as was tbe fact in tbe Gribson case.

In addition iit may be said, if a valid contract bad been made with railroad employees, such as was tbe applicant, it could continue only so long as did the employment. This was tbe express agreement of tbe appel-lee which; has already been quoted.

Appellee ceased to work for thé railroad two days after tbe application was signed and before the injury was received, and drew all bis wages before tbe insurance company could have collected any premiums. Hence, in any view of tbe case, there was no valid existing contract, and tbe court should have directed a verdict for tbe appellant as requested by it.

Tbe judgment is therefore reversed, and, as the case appears to have been fully developed, it is hereby dismissed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Smith v. McEachin.
    4-2884
    Opinion delivered February 27, 1933.

      Patterson, Patterson i& Patterson, for appellant.

      Pryor & Pryor, for appellee.
   Butler, J.

The appellant, while engaged in the performance of his duties as an employee of the appellees, suffered an injury which caused the loss of an eye. He brought suit to recover damages alleging that his employers were negligent in failing to provide him reasonably safe instrumentalities with which to perform his labor.

Appellees answered denying negligence and pleading assumed risk and contributory negligence as a bar to recovery. At the conclusion of the testimony, on motion of the appellees, the jury returned a verdict at the direction of the court. Judgment was entered in accordance with the verdict, from which this appeal is prosecuted.

There is only one question presented for onr determination — i. e., was the trial court correct under the evidence adduced in directing a verdict for the appellees? It is a rule of universal application that, where the testimony is undisputed and from it all reasonable minds must draw the same conclusion of fact, it is the duty of the court to declare as á matter of law the conclusion to be reached; but, where there is any substantial evidence to support the verdict, the question must be submitted to the jury. In testing whether or not there is any substantial evidence'in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.

The evidence tended to establish the following facts: Appellant is a “metal cooker,” it being his duty to properly melt metal for use in connecting joints in a pipe line. At the time of the injury the appellees were engaged in constructing a water main, and the appellant was employed by them in his usual capacity. The water main consisted of iron pipe which was being laid in a ditch dug for that purpose, and, on the occasion of the-appellant’s injury, the workmen who were engaged in-excavating the ditch had been sent to another place, leaving some rock in it. The foreman passed by the place where appellant was working and told him to get an iron or steel maul, which he pointed out, and to remove some rock which was lying in the ditch. In order to do this, it was necessary to shatter the rock. The foreman told the appellant to hurry, and, in obedience to the orders of the foreman, he picked up the maul which was lying about 150 feet from the rock to be broken, and, throwing it on his shoulder, hurriedly wenit to the place and struck the rock two or three blows. As he struck the last blow, something hit him in the eye, either a fragment of the rock or a sliver from the maul, resulting in the loss of sight in that eye. The appellant had never used a maul of that kind or for that purpose before. At one time about ten or twelve years before the accident he had used a maul or sledge in breaking up rubble while working on a levee. An examination of the maul after the injury showed that it was in a worn condition. The handle was not straight, and the striking face of the maul had been worn, so that it did not have a flat surface, but “was broken all off around the edges of it, and had a little ball in the middle.”

The appellant testified that he did not make any examination of the maul at the time he picked it up because he had been told to hurry, and he did not think the foreman would order him to take a tool that he could hurt .himself with, and so just did not look at it. There was testimony of a witness who had had sixteen years’ experience in stone quarries to the effect that it was proper, when the striking face of a maul became battered, to have it redressed so as to make the face of it smooth, as there was a tendency of rock to fly outward to the side when struck by a maul with a smooth face, but that if struck by a battered maul with rounded surface the tendency of the broken rock was to fly upward, and that was considered one of the dangers of using a battered maul; that there was also danger of slivers of steel breaking from the maul if it had a battered or rounded surface; that, while any one could observe the condition, it would be only one having experience who would understand the danger from its use.

It is the theory of the appellee that the maul should be classed as a simple tool which the master was not required to inspect, and that the dangers attendant upon its use would be only those ordinary risks which the servant would assume, and also its condition was obvious and the danger of its use" ought to have been as apparent to him as to the master. The duty resting upon the master in the selection and inspection of the instrumentalities which the servant used in his work in all cases is to use ordinary care that they are reasonably adapted and safe

for tlie purpose intended, and, in determining that question, the simplicity of the tool and the skill required in its use is one of the circumstances to he considered in determining whether or not the master has exercised ordinary care. There is no fixed rule by which the liability of the employer for a defect in a common tool can be ascertained. Arnold v. Doniphan Lumber Co., 130 Ark. 486, 198 S. W. 117. Bach case must necessarily depend on its own peculiar circumstances.

In Arnold v. Doniphan Lumber Co., supra, the court approved the following statement: “A master is not required to inspect common tools and appliances which are committed to the custody of a servant who has the capacity to understand their character and uses.”

In Williamson & Williams v. Cates, 183 Ark. 579, 37 S. W. (2d) 88, it is said: “The axes were simple tools such as men engaged in appellee’s occupation are accustomed to use from boyhood, and the fact that they were dull could in no wise contribute to the happening of the injury, for that was occasioned by the falling of a brush, and the mere fact that it was severed with a dull axe instead of a sharp one could make no difference. As we have seen, appellee must have had knowledge of the use and construction of the axes, as he appears to have been a man of ordinary intelligence. Therefore there was no duty resting upon the appellants to exercise ordinary care in the selection of the axes, for they were simple tools in ordinary use.”

In the case of Little Rock M. R. & T. Ry. Co. v. Leverett, Admr., 48 Ark. 333, 3 S. W. 50, quoted in the case of C. R. I. & P. Ry. Co. v. Smith, 107 Ark. 512 (156 W. 166), at page 522, it was held that a servant is not required to inspect the appliances of the business in which he is. employed for latent defects, but only to take notice of such, defects or hazards as a-re obvious to the senses. The fact that he might have known these or had the means and opportunity of knowing them will not preclude him from a recovery unless he did in fact know, or, in the exercise of ordinary care, ought to have known, of them.

After a careful consideration of the evidence adduced on behalf of the appellant, applying to it the principles of law above stated and giving to it its strongest probative value, we are of the opinion that it warranted a submission to the jury of the question of negligence on the part of the master, and whether or not the servant assumed the risk or was himself guilty of negligence contributing to his injury. The question involved in this case, like that of C. R. I. & P. Ry. Co. v. Smith, supra, “is an exceedingly close one.” In that case the defective tool was one in common use and practically identical with’ the tool involved in the instant case. There the servant injured had been directed to get the particular tool for the use of his fellow-servant, which tool, while in such use, glanced from the object struck because of a worn and defective face. The court said: “The undisputed evidence shows that the hammer had an imperfect striking face and was in a defective condition, when considered with reference to the uses for. which it was intended. * * * Hence the jury was justified in finding from the evidence that the face of the hammer was defective, and that its defective condition; was the efficient cause of the injury to the plaintiff. Neither can we say, as a question of law, that, under all the facts and circumstances adduced in evidence, an unskilled laborer of ordinary intelligence should have known that the hammer was defective and should have known and appreciated the dangers that he was exposed to by reason thereof. There is no hard and fast rule that may be laid down as governing the liability of an employer for a defect in common tools. In view of this condition, we do not undertake to say what state of facts the rule of liability should embrace and what state of facts it should not. * * * There was no duty imposed upon either plaintiff or Blackman to search for defects in the hammer. It cannot be said, as a question of law, that the defect in the face of the hammer was so open and obvious that they could have seen the defect by a glance or by such casual observation as it would be natural for plaintiff to have made while carrying tbe hammer to Blackman or by Blackman to have made after receiving it. ’ ’

Since there must be another trial of this case, it is proper that we refrain from commenting npon the effect of the evidence or pointing ont with particularity that which appears to ns to warrant a submission of the case to the jury.

Beversed and remanded for a new trial.


author: Kieby, J.

text:
    Royal Neighbors of America v. Tate.
    4-2887
    Opinion delivered March 6, 1933.

      Bretver & Cracraft, for appellant.

      John C. Sheffield, for appellee.
   Kieby, J.

Mrs. Alice Tate became a member of the appellant order at the solicitation of its agent and was duly initiated into the local lodge of the order, and a policy of insurance in the sum of $2,000 was issued on her life with Jesse T. Tate named as beneficiary. All premiums due on the policy had been paid, and on August 4, 1931, the insured was killed in an automobile accident, while the policy of insurance was apparently in full force and effect.

Demand for payment was made and liability denied, and, npon a suit filed by the beneficiary, the order defended on the ground that the insured had fraudulently misrepresented her medical history making untrue and false representations about such history as forfeited the policy under the terms of the contract.

After the introduction of the testimony, the court instructed the jury, two of appellee’s instructions being objected to as abstract and misleading, and refused to direct a verdict in favor of appellant, and from the judgment on the verdict against it the appeal is prosecuted.

The policy provided that the application, medical examination, articles of incorporation and by-laws were a part of the contract. In the application and the policy the answers to the questions asked the insured were warranted to be literally true, and otherwise it was agreed that the policy was to be void ab initio.

Among the questions asked were, whether or not the applicant had ever had cancer, whether or not she had ever had abnormal vaginal flow, and whether or not she had ever had an operation or been an inmate of a hospital. All these questions were answered by the applicant in the negative.

The deputy, Mrs. Maude Fields, who took the application, had authority to solicit applications for membership, to instruct in ritualistic work, promote the growth and prosperity of local camps, and organize new camps. The by-laws provided that no benefit certificate should be issued to any applicant until examined by the camp physician. The application was divided into three parts, part one dealing with the family history, and at the top of the page it is provided that it may be filled in by the applicant or deputy, part two dealing with the health and medical history of the applicant must be filled out by the camp physician, and part three was the medical certificate, it being made by the examining physician, the camp physician, Dr. C. P. Burnett of Paducah, Ky.

Mr. Tate paid $1.25 for the medical examination, and when the benefit certificate came to he delivered she was notified but did not have the money and Mrs. Fields, the deputy who was the soliciting agent in this case, agreed to advance the sum for her, and so Mrs. Tate signed the acceptance of the certificate as of July 6, 1931, and left it in Mrs. Fields’ possession until she could get the money to pay the assessments. On August 4, Mrs. Tate was killed in an automobile accident while riding with her husband near Monteagle, Tenn. Mrs. Fields thereupon sent Mr. Tate word about the certificate, which she had, and he reimbursed her to the extent of $6.50, which was paid after Mrs. Tate’s death. The total amount of $7.75 was tendered to appellee in settlement of the policy before suit was brought.

Proof of death was sent in on October 3d, and Mrs. Ida Shelby, a member of another camp in Paducah, Ky., wrote the home office informing them that Mrs. Tate had had an operation for cancer of the uterus before she made application for the policy, and, upon investigation made, the information disclosed being proved to be true, the society declined to pay the claim.

It was stipulated that, after the death of the insured and prior to the filing of suit, the appellant tendered to the appellee all dues and examination fees paid by the insured, and the tender was refused; and that on December 11,1930, the deceased was admitted to the Biverside Hospital of Paducah, Ky., and was operated on there on December 12, “for ulceration and cancer of the cervix, and the uterus was removed and a post operative diagnosis showed ulcer of the cervix and carcinoma; that the operation was performed by Drs. Shemwell, G-oodloe and Fishman; that a copy of the hospital record is attached and may be admitted in evidence; that the history as given thereon was based on facts given by the deceased, Alice Tate, and on her examination .by physicians ; that the application for the insurance was made May 6, 1931, and may be admitted in evidence; that Dr. C. P. Burnett was the camp physician and conducted the medical examination as shown on page 3, and prior to said examination he did not know of the operation, and that, if present, he would testify that he did not know that the operation had been performed on Mrs. Tate; that he asked her various questions appearing on the application, page 2, and the answers were put down as she gave them. ‘ She stated to me that she had not had an operation and had not been an inmate of a hospital. Had I known of the operation which she had on December 12, 1930, and had I been familiar with the hospital records which I have since examined, after the death of Mrs. Tate, showing carcinoma and that there had been a hysterecotomy and removal of the uterus, I would not have recommended her. I did not observe anything in the examination that caused me to believe that she had had an operation. I considered the statements she made as true’.”

It was also shown that Mrs. Fields had written the answers for the medical examination, and she testified that they were correctly written, and the answers about the operation were all in the negative; and the doctor who read the questions again in making the examination was told that she had never had an operation and had never been an inmate of a hospital.

An attempt was made to show that Mrs. Fields, the deputy who solicited the insurance, might have known that Mrs. Tate had had such operation, but she denied having had such information, and stated that she read the questions in the application over and wrote Mrs. Tate’s answers thereto correctly; and that she was then taken to the doctor’s office where he took the application and read it, read to her each question and answer and “asked her if I, Mrs. Fields, had written them down correctly, and she replied, ‘Yes,’ and then the insured signed the application in the doctor’s presence, and it was witnessed by him. She did not write down the doctor’s examination; he made his own examination, and bad received no information from ber or anybody else that sbe bad bad an operation.”

Instruction No. 2, objected to as abstract, reads as follows:

“Tbe jury are instructed that, even though you find that tbe answers contained in tbe application for insurance are false, still if you find that tbe applicant made correct answers to tbe representative of tbe defendant and such representative wrote false answers without tbe knowledge of the applicant, this would not void tbe policy. ’ ’

It is insisted that tbe court erred in not directing a verdict in appellant’s favor, and this contention must be. sustained. Tbe undisputed testimony discloses that tbe insured in ber application made answers to several questions about never having been operated upon nor an inmate of a hospital, and, under the provisions of tbe application, tbe policy or contract of insurance and by-laws such untrue representations and warranties voided tbe policy according- to its provisions. Tbe fact that tbe untrue warranties bad nothing to do with tbe accident or injury makes no difference, since tbe policy would not have been issued if tbe true disclosures bad been made to tbe questions asked, and it was not done.

There is no 'testimony tending to show that tbe answers of tbe insured were not correctly written as given, nor any change made therein after they were written, and tbe said instruction No. 2 was not warranted and is erroneous and prejudicial under tbe circumstances.

The court should have directed a verdict as requested by appellant; and for its error in not doing so tbe judgment will be reversed, and, tbe cause appearing to have been fully developed, it will be dismissed. It is so ordered.


author: Mehaffy, J.

text:
    United Order of Good Samaritans v. Reavis.
    4-2906
    Opinion delivered March 6, 1933.

      Cooper Thweatt and Jno. D. Thtoeatt, for appellant.

      W. A. Leach, for appellee.
   Mehaffy, J.

The appellant is a fraternal insurance company, and on June 5, 1923, it issued a policy of insurance to James Rivers, and another to his wife, Zetta Rivers. Zetta Rivers was the beneficiary under the policy issued to James Rivers, and he was the beneficiary under the policy issued to her. The policies were identical except the differences in the insured and beneficiary.

The policies provided that the premiums or dues should be paid to the local financial secretary by the first of the month, and it provided that they must be forwarded to the home office of appellant by the tenth of the month, and, if not so forwarded by such date, the policies should be null and void.

It was also provided that, when an amount greater than the premium for one month became due, the insured became automatically suspended, and that, if such dues should be paid later, neither insured nor beneficiary should be entitled to any benefits, not only during the delinquent period, but for 30 days after payment was made.

There was also a provision in the policy that the financial secretary was the agent of the insured, and not the agent of the appellant, and failure of the home office to receive payments rendered the policy null and void.

James Rivers died January 25, 1930, and Zetta Rivers two days later. All premiums were paid by both parties, and they were both in good standing until December, 1929.

The appellant contends that neither the December, 1929, premium, nor the January, 1930, premium was paid as required by the terms of the policy. Appellant also contends that the payment to the local financial secretary was not a payment to appellant. There was a controversy as to whether the January payment had been made.

H. R. Reavis, administrator of the estates of Zetta Rivers and James Rivers, -brought suit in the Prairie Circuit Court, and the appellant filed answer denying all the material allegations in the complaint, and alleged that the policies were void for failure to pay premiums. It also alleged that, under the rules of the company, each of the beneficiaries, being over 51 years of age at the time the policies were taken out, was entitled to only one-half of the face value of the policy.

The case was tried on August 15, 1932, and the jury returned a verdict for the appellee, as administrator, on the policy’' issued to Zetta Rivers in the sum of $300, and on the policy issued to James Rivers, in the sum of $150, and judgment was entered for the sum of $450 with interest from May 1, 1930, at the rate of 6 per cent, per annum. Tlie case is here on appeal.

Appellant contends first that there is no competent evidence tending to show that the premiums for the month of January, 1930, were paid.

H. R. Reavis, the administrator, testified that at the time of the deaths of James and Zetta Rivers, proof of the deaths and the two policies were turned over to hipa, and he mailed all of the papers to the home office of the insurance company at Little Rock. He did not know whether there were any receipts among the papers, hut he sent all of the papers turned over to him to Little Rock, and demanded a receipt. The receipt showed that the company received the papers. Witness had not seen any of the papers nor the policies since he sent them in. The policies called for $300 each, and $50 burial expenses.

It was admitted by the appellant that proof of death was sent in, and that the policies were a printed form, a copy of which was exhibited in court.

The court thereupon told the jury that it was admitted that proof of death was filed and sent to the insurance company, and that Mr. Reavis was duly appointed administrator, and had a right to bring this lawsuit. The court told the jury that the only question involved now, was whether or not premiums were paid up according to the rules of the insurance company at the time of their deaths. This instruction was agreed to by both the parties.

Reavis further testified that James Rivers died first, and Zetta Rivers died two or three days later; that he paid the burial expenses himself, and that the insurance company had never paid him.

J. E. Humphreys testified that he was in the undertaking business in Stuttgart, knew James and Zetta Rivers in their lifetime, and furnished the burial supplies; that he examined the insurance papers, and had all the receipt's from the insurance company before him.

The receipts were exhibited by witness, but the one for December was missing. He bad the January receipt. These were receipts issued by appellant and showed that the January premium had been paid, but there was no receipt for the December payment. All the receipts from the company were there except the one for December.

Witness received the receipts from Zetta Rivers, and they were in a long envelope post-marked Little Rock, and it came from the headquarters of the lodge. A letter acknowledged the receipt of dues sent in for January; this receipt was on a printed form, signed by W. 0. Hill.

H. R. Reavis was recalled, and testified that the dues for December were paid to the local secretary, but she failed to send them in. The money was handed to the local secretary, whose name was Zola Price. She was the local secretary of the United Order of Good Samaritans. Witness knew that the secretary, Zola Price, at times bought money orders and sent them to the company. The company had a local lodge at Brummit, and Zola Price was its local secretary.

Jim Curry testified that he paid Zola Price the December dues at a store down town. He also testified that he took the money to Mrs. Hoover, the postmistress at Brummit, and gave it to her to pay the January dues, and got a receipt for his money. After Jim Rivers died, the company sent a dun, stating that they had received the January dues, and to hurry with the December dues.

1 A letter was introduced, which was on the letterhead of appellant, acknowledging receipt of the December dues.

Appellant introduced some witnesses whose testimony was in conflict with the evidence offered by appel-lee, but as to whether the January and December dues were paid was a question of fact properly submitted to the jury. The, appellant itself stated that the court gave proper instructions, and no objections were offered to any of the court’s instructions.

The burden was upon the appellant to show a forfeiture. Supreme Council American Legion of Honor v. Haas, 116 Ill. App. 587; Ry. Passenger & Freight Conductors Mutual Aid & Benefit Ass’n v. Thompson, 91 Ill. App. 580; United Brotherhood of Carpenters & Joiners of America v. Fortin, 107 Ill. App. 306; Sup. Tent of Knights of Maccabees v. Stensland, 206 Ill. 124, 68 N. E. 1098; Sleight v. Sup. Council of Mystic Toilers, 133 Iowa 379, 107 N. W. 183; Kidder v. Sup. Commandery United Order of Golden Cross, 192 Mass. 326, 78 N. E. 469.

It is not disputed that the December dues or premiums were paid to the local secretary, but it is contended by appellant that, because the dues were not sent in to the home office by the local secretary, the policies were void.

The policy provides that the Supreme Colony shall in no event be responsible to individual members for the failure of the secretaries to send to the Supreme Recorder of Records and .Seal their names and money. The policy also provides that in each or every case or condition that may arise, it is expressly understood and declared that the Colony is the agent of the member or insured, and not of the Supreme Colony.

Whenever an insurance company authorizes the clerk of the local lodge to collect dues from members, it thereby constitutes such person its agent, notwithstanding it may provide in its constitution, by-laws, or policy that such officer, in collecting and forwarding assessments, shall be the agent of the insured. «

It is not disputed that the December dues were paid to the local secretary. The proof shows conclusively that they were so paid, and the local secretary did not testify, and this evidence that they were paid to the local secretary is not contradicted. In order that there, should be a forfeiture of the policy, the burden was on the appellant to show a forfeiture of the policy, and, sino,e the undisputed proof shows that the dues were paid to the local secretary, who was the agent of the appellant in collecting and forwarding the dnes, this was a payment to the company. Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132, 219 S. W. 759; Eminent Household of Columbian Woodmen v. Simmons, 150 Ark. 325, 234 S. W. 182; Supreme Lodge K. of H. v. Davis, 26 Colo. 252, 58 Pac. 595; Sup. Tribe of Ben Hur v. Hall, 24 Ind. App. 316, 56 N. E. 780, 79 Amer. State Rep. 262; Sup. Lodge K. of P. v. Withers, 177 U. S. 260, 20 Sup. Ct. 611.

One provision of the policy provides that the policy shall be void if the dnes are not received at the home office as required by the constitution and laws of the society, and, if the dues are paid after the time, neither the insured nor the beneficiary shall be entitled to any benefits before the expiration of 30 days.

Another provision of the policy provides that when the dues exceed one month’s dues, taxes and fines included, the insured shall be automatically suspended, etc.

There seems to be some conflict in these provisions of the policy. They, at all events, make the provision of the policy with reference to forfeiture ambiguous.

This policy, like all policies of insurance, should be construed most strongly against the insurance company that wrote it, and it is also a well-established rule of this court in the construction of contracts of this character that, if capable of two constructions, one of which will make the policy void, and the other will avoid a forfeiture, that construction must be adopted which avoids the forfeiture. Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; American Indemnity Co. v. Hood, 183 Ark. 266, 35 S. W. (2d) 67; Ætna Casualty & Surety Co. v. Sengel, 183 Ark. 151, 35 S. W. (2d) 67; Mech. Ins. Co. v. Inter-Southern Life Ins. Co., 184 Ark. 625, 43 S. W. (2d) 81; Gilbert v. Life & Casualty Co., 185 Ark. 256, 46 S. W. (2d) 807; Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; McClain v. Reliance Life Ins. Co., 174 Ark. 478, 295 S. W. 730; Mosaic Templars of America v. Crook, 170 Ark. 474, 280 S. W. 3; Fire Ins. Co. v. Boydston, 173 Ark. 437, 293 S. W. 730; Nat. Benevolent Society v. Harris, 178 Ark. 24, 9 S. W. (2d) 773.

We find no error, and the judgment is affirmed.


author: Smith, J.

text:
    Coca-Cola Bottling Company v. Swilling.
    4-2900
    Opinion delivered March 13, 1933.

      S. Hubert Mayes and Busbeé, Pugh i& Harrison, for appellant.

      Robert Bailey and Hays i& Smallwood, for appellee.
   Smith, J.

Suit was brought by appellee to recover damages sustained by drinking a bottle of Coca-Cola in which there was a partly decomposed centipede. The suit was brought in the Pope Circuit Court against two defendants, who were residents of that county, and served with process therein. A third defendant was the Coca-Cola Bottling Company of Arkansas, a domestic corporation having its place of business'in Pulaski County. There was a verdict and judgment against all three defendants, from which is this appeal. It is stated in the brief of ap-pellee, the plaintiff below, that the suit was not brought upon the theory of implied warranty, but upon the theory of negligence on the part of R. Kelch and C. C. Sanders, the resident defendants, and upon the negligence also of the Coca-Cola Bottling Company.

Kelch, as a dealer, sold bottled Coca-Cola to the ultimate consumers, who drank the contents of the bottles in his place of business, as did the plaintiff in the instant case, and it was alleged that one of these bottles which plaintiff bought and drank contained a decomposed centipede.

The allegations of the amended complaint, upon which the cause was tried, as to plaintiff’s injuries, read as follows: “That said injuries to this plaintiff and the poisoning of the plaintiff’s system were brought about solely, wholly and alone by the carelessness and negligence of the defendants, the Coca-Cola Bottling Company, Morrilton, Arkansas, and the Coca-Cola Bottling Company of Arkansas, in bottling said drink and holding out and representing said drink to be fit for human consumption, and permitting their agent, C. C. Sanders, to be upon the road and selling said bottled products to merchants, and not properly protecting said bottles and syrup itself from foreign substances, and through the carelessness and negligence upon the part of these defendants, and that R. Kelch was careless and negligent in his manner of selling said Coca-Cola to this plaintiff, and through the carelessness and negligence of the defendant, the Coca-Cola Bottling Company, Morrilton, Arkansas, and the ‘Coca-Cola Bottling Company of Arkansas, their agents and employees, in their failure to make a proper investigation upon their part as to whether or not said Coca-Cola was fit for human consumption, before offering the same to the general public.”

Although there were allegations as to two Coca-Cola companies, it appears that there was only one corporation by that name, this being the Coca-Cola Bottling Company of Arkansas, domiciled in Pulaski County, and service was had on that corporation in that county.

Before trial or verdict, the Coca-Cola Company filed objection to the jurisdiction of the Pope Circuit Court, and moved that the cause be dismissed for lack of jurisdiction, for the reason that it was not served in Pope County, and for the further reason that no joint cause of action was stated against it and the other defendants. The motion to dismiss alleged that, even though a joint cause of action were stated, the plaintiff would not be entitled to a judgment against it unless judgment was also obtained against one or both of the other defendants who were served in Pope County. This objection to the jurisdiction was based upon § 1178, Crawford & Moses’ Digest.

It is conceded that the testimony was sufficient to support a finding that plaintiff bought from Kelch, the dealer, a bottle of Coca-Cola which contained a partially decomposed centipede which plaintiff drank, and that he sustained an actionable injury on that account.

The testimony as to the defendant, Sanders, was to the effect that he made delivery of bottled Coca-Cola to dealers in cases, each ease containing 24 bottles. He made delivery to many dealers every day, and in no instance made inspection of any bottles. It appears very clear that no cause of action was established against Sanders.

As to the defendant, Kelch, the testimony of the plaintiff himself was to the following effect: Plaintiff drank bottled Coca-Cola daily, usually from three to six bottles each day, and made purchases from numerous dealers. It was not customary for the dealer, upon selling a bottle of Coca-Cola, to inspect the bottle, as the drink was supposed to be put up in sterilized bottles, and all the dealer was expected to do, and all any dealer did in that vicinity, was just to take a bottle out of the receptacle in which it was contained, pnll the cap off., and hand it to the customer to drink. Neither Kelch nor the plaintiff made any inspection of the bottle in question. Had either done so, the presence of the centipede in the bottle wonld probably have been discovered. A careful inspection wonld certainly have revealed its presence.

Upon this testimony we are of the opinion that no case was made against Kelch. There was no occasion, nor was it usual or ordinary, for the dealer to inspect the bottle, which was an original package ready for delivery to the consumer, to be drunk by him. Both dealer and the consumer had the right to assume, and both apparently did assume, that the drink was contained in sterilized bottles, containing no deleterious substance, as neither made any inspection. The presence of the centipede was as easily discernible by the one as the other. The dealer was not selling a portion of a bulk product, but a drink contained in an original package, which was known to be sealed with a metal cap to prevent the waste of the content and to protect it from contamination. The case of Heinemann v. Barfield, 136 Ark. 456, 207 S. W. 58, cited and relied upon by the plaintiff, does not therefore apply.

The duty of the dealer in selling a portion of a bulk commodity, as distinguished from his duty in selling an article canned or sealed, both being intended for human consumption, is pointed out in § 29 of the chapter on Food in 11 R. C. L., page 1124. In the early history of the law on this subject sales of food or drink in canned or sealed containers was not common, and, as is said in the section of the chapter cited, the early rules of law were formulated upon the theory that the provision dealer having the opportunity to inspect the article sold was charged with knowledge of its unfitness. But it was there said also that, the reason for the rule having ceased when manufacturers began to prepare their products for sale in canned or sealed containers, a new rule should be •and is applied which more nearly harmonizes with what is rational and just, and that it “comports better with justice to hold that,- where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer, and the customer knows as much about the article as the dealer, and buys it without any representation from the dealer or reliance upon his judgment, knowing that there has been.no inspection of it by the dealer, there is no implied warranty, although the dealer knows that the customer buys it for food. ’ ’ It was there further said: “The situation of the retailer and consumer of packed products is properly governed by the rules of negligence law. The retailer owes to the consumer the duty to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of the care, skill and experience of dealers in such products generally. This is the measure of the retailer’s duty, and if he has discharged it he should not be mulcted in damages because injuries may be produced by unwholesomeness of the goods. As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter.” The annotated cases cited in the notes to the text quoted appear to sustain the text.

Now, as we have "said, it is not questioned that the testimony supports a finding of liability on the part of the mánufacturer of the Coca-Cola. The cases of Coca-Cola Bottling Co. v. McBride, 180 Ark. 193, 20 S. W. (2d) 862; Coca-Cola Bottling Co. v. Bennett, 184 Ark. 329, 42 S. W. (2d) 213, and Coca-Cola Bottling Co. v. Jordan, ante p. 1006, are to that effect. But, if it be true, as we have concluded, that there was no liability on the part of Kelch and Sanders, the question arises whether the Pope Circuit Court had the jurisdiction to ascertain whether the Coca-Cola Company was liable and to assess damages on that account.

Each defendant requested a separate instruction for a directed verdict declaring that there was no liability against the defendant asking the instruction, but each and all of these instructions were refused, and error was assigned in the motion for a new trial for refusing to give them.

The motion for a new trial did not specifically assign as error the action of the court in refusing to quash the service upon the Coca-Cola company and dismiss the cause for want of jurisdiction as to that defendant, hut at the time the motion for a new trial was filed a verdict had been returned and a judgment rendered against all three defendants, and, if either of the other defendants was liable, the service upon the Coca-Cola Company was good under § 1178, Crawford & Moses’ Digest. The motion for a new trial did, however, as we have said, assign as error the refusal of the court to direct a verdict for the Coca-Cola Company and each of the other defendants, and we think this was sufficient to raise the question of jurisdiction.

Upon this question, the case of Howe v. Hatley, ante p. 366, is very similar and controls here. In that case Belford, a resident of Randolph County, had been sued, in conjunction with Hatley, a nonresident of the county, upon allegations that their joint and concurrent negligence had caused the damages sued for, and it was upon these allegations that service was had upon the nonresident of Randolph County in the county of his residence. There was a verdict and judgment against both defendants. The opinion in that case recites that, after the introduction of all the evidence, the nonresident defendant filed his motion objecting to the jurisdiction of the court under § 1178, Crawford & Moses’ Digest. This motion was overruled, and, we said, correctly so, for the reason that the court had .jurisdiction of both the subject-matter and the parties at that stage of the proceeding, but it was said that, had there been a verdict against the nonresident defendant alone, he could have objected to the jurisdiction of the court at any time prior to the judgment. We there said there could be no judgment against the nonresident defendant served with process in another county unless .judgment was also rendered against the local defendant where timely objection, as required by the statute, was made.

In that case instructions were given on the question of joint liability, to which no objections were made and the giving of which was not assigned as error in the motion for a new trial. But, as we were there constrained to reverse the judgment against the resident defendant, we also reversed the judgment against the nonresident defendant, for the reason there stated, that there could be no judgment against a nonresident defendant unless there was also a judgment against the resident defendant, where objection to the jurisdiction had been made as required by the statute.

Section 1178, Crawford & Moses’ Digest, provides that, “Where any action embraced in § 1176 (which section provides that transitory actions may be brought in any county in which the defendant, or one of several defendants, resides or is summoned) is against several defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in any other county than that in which the action is brought, where no one of the defendants is summoned in that county or resided therein at the commencement of the action, or where, if any of them resided, or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him.”

Here instructions were requested by each defendant for a directed verdict, and refusal to give them was assigned as error in the motion for a new trial, declaring the law to be that no case had been made for the jury, and we are of the opinion that no negligence was shown as against Kelch and Sanders, the resident defendants, it follows that a verdict should have been rendered in favor of the defendant served in another county, it having, before judgment and within the time prescribed by law, objected to the proceeding against it.

The entire judgment must therefore be reversed, and, as the Pope Circuit Court is without jurisdiction to pro.-ceed for lack of proper service against the only defendant shown to be liable, the case must be dismissed, but without prejudice to - further proceedings against the Coca-Cola Company upon proper service. Fidelity Mutual Life Insurance Co. v. Price, 180 Ark. 214, 20 S. W. (2d) 874.


text:
    First State Bank of Bensenville, Illinois, v. Taggart.
    4-2916
    Opinion delivered March 13, 1933.

      Ingrown $ Moher, for appellant.

      George G. Lewis, for appellee.
   Smith, J.

On January 29,1931, the First State Bank of Bensenville, Illinois, filed suit in the chancery court of Arkansas County, Northern District, against Thomas T. Taggart, to foreclose a mortgage securing certain notes of Taggart payable to its order. As ancillary to the foreclosure of the mortage, the plaintiff bank caused to be issued a garnishment requiring McGill Brothers to answer what funds they had in hand belonging to the defendant Taggart. The usual bond was given. McGill Brothers answered that they had in their hands the proceeds of a crop of rice belonging to Taggart, which they were ready to pay under the direction of the court, but that they were advised there, were outstanding liens thereon.

At the beginning of the year in which the crop of rice was grown, Taggart borrowed money from his wife, to secure which he gave her a chattel mortgage on his crop of rice and certain personal property. The snm due Mrs. Taggart and thus secured was $416.07. The net proceeds of the sale of Taggart’s rice sold to McGill Brothers amounted to $669.98. From the time the garnishment was issued until th.e following March, McGill Brothers were doing a large business as rice millers, met their obligations promptly, and were in good local credit. After that time they became somewhat dilatory, and on the 26th day of July, 1931, were adjudged bankrupt, with large liabilities and small assets. •

A decree was rendered on December 9, 1931, foreclosing the mortgage, and pursuant thereto a sale was had of the land described in the mortgage, but the sale left a large deficiency against Taggart.

On September 17, 1932, Mrs. Taggart filed an intervention, in which she alleged that the rice had been sold to McGill Brothers subject to. her mortgage, but that by reason'of the garnishment the money had been impounded and lost through McGill Brothers’ insolvency, whereas, but for the garnishment, the rice would have been paid for. She prayed judgment for the amount of her debt secured by her mortgage by way of damages against the plaintiff in the original foreclosure suit and garnishment proceeding and the surety upon the garnishment bond. Mr. Taggart filed a petition in which he prayed that, after his wife’s claim had been ordered paid, the balance due on the rice be paid him under § 5549, Crawford & Moses’ Digest. He alleged that he was a married man and insolvent, and filed a schedule of all his personal property, and claimed the balance due from McGill Brothers after his wife’s debt had been paid as his personal exemptions from the demands of his creditors under the law. The court granted the relief prayed, and this appeal is from that decree.

Authorities are cited in support of the decree below to the effect that property exempted from execution generally is also exempt from garnishment, and that the debtor has the right to assert the exemption in a garnishment proceeding at any time before the impounded funds have been lawfully paid to the creditor, and also to the effect that a stranger to the garnishment proceeding may sue for the wrongful conversion of such impounded funds.

It is true that Mrs. Taggart was a stranger to the garnishment proceeding, hut it is true also that McGill Brothers were required to answer only as to the money due her husband. No sum due her was impounded. She had the right to take such action as was adyised for the recovery of any money due her. It is true also that the garnishment against her husband was not wrongfully sued out. McGill Brothers did have money in their hands belonging to Taggart. He alleges this to be a fact himself. It is no doubt true that Taggart had the right to claim his personal exemptions, but he might or might not have asserted this exemption, failing which his creditors had the right to subject the money to the payment of his debt. As a matter of fact, both Mr. and Mrs. Taggart delayed the assertion of the rights upon which they now insist for many months and until McGill Brothers became insolvent. Had they proceeded more expeditiously, their action might have been more profitable.

Under the circumstances, we think there is no liability against the plaintiff in the garnishment, and the decree of the court below must be reversed, and both the intervention and the petition will be dismissed.


text:
    Broadway-Main Street Bridge District v. Taylor.
    4-2913
    Opinion delivered March 13, 1933.

      Trieber i& Lasley, for appellant.

      Sam Roreos, for appellee.
   Mehaffy, J.

The appellant, Broadway-Main Street Bridge District of Pulaski County, had on deposit in the American Exchange Trust Company on November 22, 1930, when the Commissioner took charge, $62,685.45, and held improvement district and school district bonds pledged to it by the depository in the sum of $43,000, of which $6,500 now remains on hand unrealized upon. This was the sole security for the deposit.

The appellant filed an intervention in the Pulaski Chancery Court in the liquidation therein pending, involving the affairs of the American Exchange Trust Company, insolvent. The purpose of the intervention was to establish the basis of intervener’s participation as a secured creditor in the dividends 'payable by the insolvent estate.

The rule adopted by this court is announced in the case of Jamison v. Adler-Goldman Commission Co., 59 Ark. 548, 28 S. W. 35, and followed in Merchants’ Nat. Bank of Ft. Smith v. Taylor, 181 Ark. 356, 25 S. W. (2d) 1048.

In the last case cited, we stated the rule as follows: ‘ ‘ The rule is that when one files a claim he files it for the full amount due at that time. If his claim is secured by collateral, and he collects anything from the collateral before a dividend is paid, then his dividend is calculated on the amount reduced by the amount of the collateral collected. If there is still another collection from the collateral before another dividend, the creditor is entitled to a dividend on the amount reduced by the amount of the collateral received. In other words, he is entitled to a dividend on the amount of his debt at the time the distribution is made, and not entitled to a dividend on the claim as originally filed, if anything has been realized from the collateral.”

The above rule was followed by this court until the enactment of act 107 of the Acts of the Legislature of 1927. That part of the act of 1927 applicable is as follows: “All creditors of a bank of which the Commissioner has taken charge are classifiable either as secured creditors, prior creditors or general creditors. A secured creditor shall be a creditor (1) who has security for his debt upon the property of the said bank of a nature to be assignable under this act, or (2) who owns such a debt for which some indorser, surety or other person secondarily liable for said bank has such security upon the said bank’s property, to the extent in both such instances of the value of such security. The value of the security of a secured creditor shall be determined by converting the same into money (1) according to the terms of the agreement pursuant to which such security was delivered to such creditor or in the absence of applicable terms of such agreement (2) by such creditor and the Commissioner, by agreement, arbitration, compromise or litigation, as the chancery court may direct. The expense of such conversions by such creditor and the Commissioner shall be borne as the said court may direct.”

It will be observed that this act established a different rule as to the payment of dividends to secured creditors. The secured creditor files his claim, but the law provides that the value of the security of a secured creditor shall be determined by converting the same into money, according to the terms of the agreement pursuant to which security was delivered to such creditor. It will therefore be seen, if there is an agreement, that the value of the security is to be determined according to the terms of that agreement. If there are no applicable terms of such agreement,, then, the value of the security must be determined by the creditor and Commissioner, either by agreement, arbitration, compromise, or litigation, as the chancery court may direct. This act establishes a new rule for the payment of dividends to secured creditors.

It was manifestly the intention of the Legislature to change the rule heretofore announced by this court as to' the payments of dividends to secured creditors, but providing that the value of the security of the secured creditors should be determined in the manner named in the act.

Therefore, while the secured creditor must file his claim in the manner provided by law, he receives his dividends as provided in act 107, above referred to, and not according to the rule heretofore followed by this court.

It is the duty of the court, in interpreting a statute, to give effect to the intention of the Legislature in enacting the law; and the law enacted by the Legislature must be enforced according to such intention of the Legislature when ascerthined.

When a statute is plain and unambiguous so that no doubt arises from its terms, it needs no interpretation, and courts must follow such act implicitly. Lewis’ Sutherland Statutory Construction, vol. 2, 694.

This statute either means that dividends to secured creditors are to be paid according to the rule announced in the statute, or it would be meaningless.

It would serve no useful purpose to discuss the rules or authorities, because, if this statute is applicable, and we hold that it is, it must be implicitly followed.

The decree of the chancery court is affirmed.


author: Mehaefy, J.

text:
    Sternberg v. Snow King Baking Powder Company, Inc.
    4-2919
    Opinion delivered March 13, 1933.

      George W. Dodd, for appellant.

      I. J. Friedman, for appellee.
   Mehaefy, J.

This is a suit in replevin brought by the appellee against Browne-Brun Wholesale Grocery Company. The appellee alleged that it was the owner and entitled to the immediate possession of 259 cases of baking powder, and four nose trucks. It was alleged that the goods were placed with the appellant on consignment.

The following is the instrument under which the Browne-Brun Wholesale Grocery Company acquired possession of the goods:

“Ship. Date Snow King

Jobber Agency Plan

“Browne-Brun Who. Gro. Co. Nov. 12, 1931.

“Ft. Smith, Ark. Advertising Premiums

“Cases Size Cans Price Chain-10

50 10e 48 3.70 Pana-5

250 20 25c 24 4.60 Truck-5

25 Introductory Free

12/15/31 1/3 Billed 30 days — less 2%

1/15/32 1/3 Billed 60 days — less 2%

2/15/32 1/3 Billed 30 days — less 2% Less 17% and 2%

(Stamped on face: Nov. 16, 1931. 22647)

“CONDITIONS AND AGREEMENT

“1. All orders on Snow King Baking Powder are to be shipped from jobber’s stock, including all orders for advertising premiums taken by the Snow King salesman, or the jobber’s salesman.

“2. The Snow King Baking Powder Company agrees to supply the jobber with advertising premiums free of charge. As these advertising premiums offers change from time to time, only a limited supply of these premiums are sent along with this order, but the premiums are sent to the jobber, without any cost to him, whenever new deals are put into effect and whenever new premiums are offered to the trade as long as this arrangement is in effect.

“3. Only jobbers operating under this plan are privileged to fill Snow King orders from their stocks. Jobbers’ salesmen are notified of new deals and new premium offers from time to time when they are brought out by the Snow King Baking Powder Company.

“4. The Snow King Baking Powder Company reserves the right to withdraw this agreement, if it is impossible to effect savings by not shipping into this territory in either pool car shipments, or solid cars, because this extra profit to the jobber is only possible due to the savings in freight which the Snow King Baking Powder Company can make.

. (In pencil as follows): “If any of the above payments become due before same being sold, payments to be deferred 30 or 60 days or longer if necessary or until this stock is sold by the jobber.

“Signed:

“Bowling

“The Snow King Baking ‘‘Signed:

Powder Co. “Browne-Brun Gro. Co.

“Cincinnati, Ohio. “Fred Browne.”

The Browne-Brun Wholesale Grocery Compány was adjudicated a bankrupt after suit was brought, and Henry Sternberg, trustee in bankruptcy, was substituted as defendant. The case was tried before the circuit judge sitting as a jury, and, after hearing the evidence, the court took the case under advisement, and afterwards rendered judgment' in favor of the appellee. The case is here on appeal.

At the time of the hearing, appellee. offered certain evidence which was excluded, some of which the court afterwards considered. The appellant requested the court to find as follows :

. “(a) That the baking powder involved in the suit was sold to the grocery company, and'title-passed upon delivery;

“ (b.) That the contract in this case is evidenced by a written instrument in the form of an order signed by both' parties, complete in its terms, not ambiguous and requires no explanation to enable one to understand its terms;

(c) That the order does not establish a conditional sale, nor does the order, together -with the invoice, show that same was on condition.

“Defendant requested the court to find as a conclusion of law that the title to the baking powder was vested in the grocery company, or its trustee in bankruptcy, and judgment should be for the defendant. These requests were denied.”

The court at the request of appellee, found as follows:

“(a) That the sheriff has in his possession merchandise described in the writ;

“(b) That the merchandise was shipped and delivered to the grocery company under and by virtue of a jobber’s agency plan, written-order, duly signed by Fred Browne, president of the Browne-Brun Wholesale Grocery Company, an authorized agent of the defendant, which order provided that goods were not to be paid for until sold and were placed in storage, goods to be withdrawn by defendant as needed; an additional commission being allowed by saving’ expense of storage, and that title to said goods to be in plaintiff until sold; defendant being an agent for sale on account of plaintiff. The court announced its conclusion of law to be, “that, upon the facts introduced by plaintiff, title to the baking powder remained in plaintiff, * * * and that the written order designated ‘jobber’s agency plan, not -to be paid for until sold,’ in connection with the undisputed testimony of plaintiff constitutes an agency agreement, and the goods in question were consigned by the plaintiff to the defendant, * * * and that the plaintiff is entitled to judgment for possession of the baking powder.”

It is first contended by the appellant that the evidence objected to and which the court afterwards considered was inadmissible, because he contends that the contract is plain and complete and contains no ambiguity.

The evidence was competent to explain certain provisions in the contract, and it was not prejudicial. The only purpose of it was to show the intention of the parties, and the trial court, believing that the contract was ambiguous, admitted the evidence for the purpose of showing the intention. Moreover, the evidence is practically undisputed.

The primary rule in the construction of contracts is that the court must, if possible, ascertain and give effect to the intention of the parties so far as this can be done consistent with legal principles. 13 C. J. 521; 6 R. C. L. 835.

And, in order to arrive at the intention of the parties, courts may acquaint themselves with the persons and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they view them, and so as to judge the meaning of the words and the correct application of the language to the things described. Inter-Southern Life Ins. Co. v. Shutt, 175 Ark. 1161, 1 S. W. (2d) 801; Coca-Cola Bottling Co. of Ark. v. Coca-Cola Bottling Co., 183 Ark. 288, 35 S. W. (2d) 579.

Evidence which tends to show the intention of the parties and does not contradict or vary the terms of the -written instrument is admissible for the purpose of showing the real meaning of the words used in the instrument and the intention of the parties.

It is contended, however, by the appellant that the sale was not conditional, and that the title passed to the purchaser. The last paragraph in the contract clearly shows that the Browne-Brun Grocery Company was not to pay for any of the goods until they were sold, and the instrument does not purport to he a contract of sale. It further appears that this clause, indicating that there was to be no payment made until the goods were sold by the jobber, was written into the contract by Mr. Browne himself. We must look at the whole contract in order to determine its meaning, and ascertain what the parties themselves did under the contract, and how they construed the contract.

Unless the Browne-Brun Grocery Company sold the goods, it was not to pay for them. Moreover, the evidence on the part of the appellee shows that he talked with the representative of the Browne Company, and stated to him that the appellee was carrying insurance on the goods. This is not denied by Browne, but he simply says he does not remember.

It is not necessary that the term “conditional sale” be used in a contract, nor that there be a reservation of title to make it a conditional sale. Such reservation may be implied from the contract. 55 C.‘ J. 1201. The facts that’ the appellee carried insurance on the goods, and that no payment was to be made to it until a sale by the jobber, together with the other competent evidence introduced, shoAV clearly the intention of the parties.

The finding of facts by a judge sitting as a jury is as conclusive here as the verdict of a jury. We do not pass on the weight to be given to the evidence, nor the credibility of the witnesses.

There was substantial evidence to sustain the finding of the court, and the judgment is affirmed.


author: McHaNey, J.

text:
    Sternberg v. Libby, McNeill & Libby.
    4-2920
    Opinion delivered March 13, 1933.

      George W. Dodd, for appellant.

      Daily ■& Woods, for appellee.
   McHaNey, J.

Sometime prior to the failure of Browne-Brun Wholesale Grocery Company, appellee sold it a quantity of merchandise. The order for the merchandise was signed by the grocery company’s agent and contained a clause at the head of the order providing that the seller retained title and property in the goods until they were paid for in full. The goods were not paid for, and, the grocery company being in a failing condition, appellee brought replevin against it to recover the merchandise still on hand and unsold, a part of it having been sold. Shortly thereafter the grocery company was adjudicated a bankrupt, and appellant became the trustee. He was substituted as defendant in the action and filed an answer denying that appellee was the owner of the goods and entitled to the possession thereof and all other material allegations in the replevin action. A trial before the court sitting as a jury resulted in a finding and judgment for appellee.

For a reversal of the judgment against him, appellant contends (1) that the provision in the contract of sale for the retention of title in the goods was no part of the contract; and (2) that such retention of title is void as against creditors.

As to the first, proposition', appellant' contends that the purchaser did not notice the provision of the contract relating to the retention of title, and that it was not bound on that account. ■ The testimony was in' dispute as to whether the grocery company had notice .of that provision. of the contract. Appellee’s agent stated that the buyer’s agent knew that it was there; that it was in all their contracts. The buyer’s agent said that the'clause made no impression on him, and that he paid no attention to it. The court’s finding against appellant is supported by substantial evidence. However, we think it would be immaterial whether the purchaser noticed that provision or not. The undisputed fact is that if was in the contract, plainly visible had the purchaser’s agent desired to inform himself of the provisions of the contract. In the recent case of Gray v. Brewer, 177 Ark. 486, 9 S. W. (2d) 81, we held that “where a person signs a paper containing the terms of a proposed contract, and the paper is accepted, he is bound by its terms, whether he reads the paper or not.” See also authorities cited in that case. We therefore hold that this provision is an essential part of the contract. .

As to the second proposition that the reservation of title is void as against creditors, we are of the opinion that the appellant is again in error. One of the leading cases in this court holding against appellant’s contention is Triplett v. Mansur-Tebbetts Implement Co., 68 Ark. 230, 57 S. W. 261. It was there held that a contract of conditional sale is valid, regardless of the fact that it contains a provision that the purchaser may resell the property in the usual course of business, and the conditional vendor was allowed to replevin the goods from the conditional vendee’s assignee in insolvency who had taken possession. See also Swofford Bros. Dry Goods Co. v. Bryant, 153 Fed. 841. This case was affirmed by the Supreme Court of the- United States in Bryant v. Swofford Bros. Dry Goods Co., 214 U. S. 279, 29 S. Ct. 614, 53 Law. Ed. 997.

We find no error, and the judgment is affirmed.


text:
    Blakely & Son v. Jones.
    4-2922
    Opinion delivered March 13, 1933.

      Buzbee, Pugh & Harrison, for appellant.

      Wallace Townsend and Oicens $ Ehrman, for ap-pellee.
   Butler, J.

Action for personal injury — verdict and judgment for plaintiff.

On appeal the defendant raises only two questions: (1) That the evidence fails to show any actionable negligence on the part of the defendant, and (2) That the court should have declared as a matter of law that appel-lee Jones was guilty of negligence which directly occasioned or contributed to the casualty causing his injury.

The injury involved in this suit was caused by ap-pellee’s Ford coupe striking the rear of appellant’s truck. This happened about ten or ten-thirty p. m. about fifteen miles out from Little Rock while appellees were journeying from that city along the highway in the direction of Hot Springs. The highway is one of the principal thoroughfares of the State, and is paved with concrete. The truck belonged to the appellant, and was operated by two of its servants making daily trips between Little Rock and Hot Springs transporting freight. It had left Little Rock on the"night in question, and, at the time of the collision, was standing on the highway without any lights being displayed thereon. The claim is made by the appellant that the uncontroverted evidence establishes the fact that the stopping of the truck was unavoidable, and that the collision occurred under circumstances which made it impossible for appellants’ servants, in the exercise of ordinary care, to prevent it, and therefore no actionable negligence was proved.

On the evening of the accident there were two of appellants’ servants on the truck, the driver and his helper. The testimony of these two is relied upon to establish appellant’s contention, and it is insisted that this evidence stands undisputed.

The driver testified that they were going to Hot Spring's, the truck being loaded with furniture and other commodities, and the load weighing about 4,000 pounds; that, while driving at the rate of about thirty miles an hour, the lights on the truck suddenly went out, and because of this the truck was brought to an immediate stop. It was a dark misty night. There was no flash light or lantern or other means of making a light except matches. As soon as possible after stopping, witness got out of the truck from the left, or driver’s side, on the highway and struck a match to locate the position of the truck thereon, and as he did so he saw two cars coming, one meeting him from the direction of Hot Springs and the other, which proved to be appellee’s coupe, coming from the direction of Little Rock behind him; that at this time, and when first observed, the car approaching from the rear of the witness was about 200 yards distant and coming at a rapid speed. The car approaching from the front had stopped, and witness stepped upon the running board of the truck expecting the car coming from the rear to pass on his left, but, instead of doing so, it crashed into the back end of the truck. He was corroborated by his companion as to the interval of time between the stopping of the truck and the collision and that the truck was stopped because its lights had suddenly gone out. The testimony of this witness was to the effect that, when the truck stopped and the driver got out on the left, witness got out on the right with one foot on the pavement and the other on the fender, and in this position raised the seat in order to look for a pair of pliers; that at this time the coupe struck the rear end of the truck, but that he had not seen it or any other car before the collision.

The inference to he drawn from the above testimony is that the stopping of the truck was necessary, and that the collision occurred practically simultaneously with the stopping of the truck. Under settled rules of law, this testimony could not arbitrarily he disregarded by the jury, and, if reasonable and not inconsistent with other testimony, must be accepted and would warrant the contention of the appellant. If however there were other circumstances in evidence from which a contrary inference might be drawn, then it could not be said to be undisputed, and a question would arise for the determination of the jury. In our opinion such is the state of the case raised by other testimony adduced. The evidence is clear that the truck was stopped and suffered to remain with its left wheels within one and a half or two feet of the center line of the highway. The truck was about eight feet wide and virtually blocked that part of the road intended for and used by those traveling in the same direction; also, that beyond the pavement and to the right was a space about four feet wide, a part of the highway called the shoulder, and within eighty feet of the point where the truck was stopped and on the same side of the road was an ample and convenient place where it might be parked. It is also certain that no lights were displayed or any other care taken to warn approaching cars of the presence of the unlighted truck. The appellants, in effect, say that their servants had no time to maneuver the truck to the side or to the open space nearby or to warn those approaching of danger. But on this question there was evidence warranting the conclusion that a greater interval of time elapsed between the stopping of the truck and the collision than is to be inferred from the testimony of appellant’s servants, and that they had time by the nse of dne care and circumspection to have taken the precautions suggested, but they negligently delayed with the intention of repairing the lighting system on the truck at the place where it was standing rather than to take the trouble to move it to a safer place or the precaution of signalling those who might approach.

These are the implications to be found in the testimony of the servants regarding the search for the pliers, a tool which then could have no use except to repair the wires of the lig’hts, and from the testimony of a witness who was in bed but awake in an upper room not over one hundred feet distant and overlooking .the highway where the collision occurred. This witness stated that, just after having gone to bed, he heard the truck approach and-stop. He heard voices in conversation, and arising he went to the window and looked in the direction-where he had heard the truck stop and the voices. Because of the darkness he was unable to see either the truck or the persons who were doing the talking, and retired to bed with his curiosity unsatisfied. Sometime after this — which he estimated at about three or four minutes — he heard -what he judged to be a Ford car approaching and a crash, which he afterward learned was the noise of the Ford striking the rear of the truck standing where he had before heard a vehicle stop and from whence had come the voices he had heard.

On the question of the conduct of the appellee, Jones, who was the driver of the Ford coupe, and as to whether or not he was negligent in its operation, there was some evidence that the impact of the car moved the truck along the highway about ten feet and that at the time the truck was in low gear with its -brakes set. Appellant argues that the proof of this physical fact and the estimates of witnesses as to the rate of speed at which Jones was driving is sufficient to show an excessive speed and a failure to keep a proper lookout ahead. We discover no evidence tending to establish-the distance a truck of the kind and situated as was this one would be moved by the impact of a Ford coupe traveling at any given rate of speed. That matter therefore must have been purely speculative with the jury as it is with us. Some of the witnesses estimated the speed of the coupe a quarter of a mile or further away from the scene of the collision at from fifty to sixty miles per hour. The estimate of another witness was thirty-five miles an hour and both of the appellees testified, one of whom was an experienced driver, that the rate at which they were traveling was from twenty-five to thirty miles per hour. Here was a direct and substantial conflict in the testimony of the witnesses of whose credibility the jury was the sole judge. On the question of keeping a lookout, it seems to us the evidence is such that different conclusions might reasonably be drawn. The witnesses all agree that the night was unusually dark, and the obscurity increased by a fine rain or mist; also that the truck had over it a dark covering and was stopped in a depression or valley, and that the appellees were on the proper side of the road. They testified that they were looking- ahead and explained that the truck was stopped, as one expressed it, so as to show no “sky-line” and that, because of this and the peculiar contour of the terrain, their lights did not shine upon and disclose the presence of the truck until they were nearly to it, when, as they said, “it suddenly loomed up” before them, and then so close that they had neither opportunity nor time to avoid striking* it.

In determining what is or is not negligence in any given case, the test is always what in the light of all the circumstances and in situations similar to that of the person under inquiry, one of ordinary prudence would or would not do, and where men of ordinary intelligence might differ in their honest judgment, the question of negligence is one for the jury. This is the state of case the record before us presents, and the trial court by correct instructions fairly presented the issues to the jury, which by its verdict, resolved the conflict in favor of the appellees. Its judgment is conclusive upon us.

The judgment of the trial court is therefore affirmed.


author: Kirby, J.,

text:
    White v. Taylor.
    4-2820
    Opinion delivered February 27, 1933.

      Jeff Bratton, for appellant.

      Partlow & Rhine, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted first that the court erred in refusing to transfer the cause to the chancery court that appellant might have an opportunity to show that the old bank was not really insolvent when it was declared to be so and taken over by the Bank Commissioner for liquidation. He insists that, if certain of the old bank’s property wrongfully transferred to others could be recovered, it was sufficient to pay all its liability without any stock assessment. But, however this may be, this action is not the proper one to try the question of fraud or insolvency. Necessity for the levy and call of the stockholder’s assessment by the Bank Commissioner was discussed at length in Davis v. Moore, 130 Ark. 128, 197 S. W. 295, where the court held that the action of the Bank Commissioner in making the assessment of liability of individual stockholders is conclusive in an action to enforce that liability. It was also said in Poch v. Taylor, 186 Ark. 618: “In any event it is definitely settled that the action of the Bank Commissioner in levying an assessment against the stockholder's is conclusive as to the -necessity, for the call and the amount to be assessed against the stockholders. Davis v. Moore, 130 Ark. 128, 197 S. W. 295; Aber v. Maxwell, 140 Ark. 203, 215 S. W. 389.” The language of the section of the statute relating to assessments was copied from the National Banking Act, which had been construed by the United States Supreme Court prior to the enactment of our statute, and such construction was necessarily adopted with it. The Supreme Court of the United States said in Casey v. Galli, 94 U. S. 673, 24 L. Ed. 307, that the Comptroller’s order that each stockholder should pay to the receiver the par of his stock cannot be controverted in a suit against the stockholder, saying: “It is conclusive upon him and makes it his duty to pay. What may be done or intended with respect to other stockholders is immaterial in his case.” The appellant could not question in the suit for the collection of the assessment either the necessity therefor or the right of the Bank Commissioner to levy same, and the chancery court could have no jurisdiction of this cause therefore.

It is next insisted that the stockholder’s liability was not an asset and could not be assigned in the disposition of the assets for organization of the new bank. It was said in Collman v. State, 161 Ark. 362, 256 S. W. 357: “This stockholder’s liability was not an asset available in the usual and ordinary course of business.” See also 7 C. J. 507. Under our statute providing for liquidation of insolvent banks by the Bank Commissioner, he is authorized to maintain all necessary suits, make collections, conserve the assets and business, and, on the order of the chancery court, may sell or compound all bad or doubtful debts, and enforce, if necessary in the State or elsewhere the liability of the failed bank’s stockholders. We see no reason why the Bank Commissioner, after the assessment of the stockholder’s liability had been made, could not transfer and assign the claims therefor the same as he could any of the other assets of the bank in final settlement of its affairs, and certainly the purchaser of such assets of the bank, including the stockholders ’ assessments already made, would have the right to use the name of the Bank Commissioner in enforcing the liability, if necessary. Waldron v. Alling, 76 N. Y. Supp. 251.

We find no error in the record, and the judgment is affirmed.