author: Kikbt, J.,

text:
    National Life & Accident Insurance Company v. Whitfield.
    4-2642
    Opinion delivered October 3, 1932.

      Barber & Henry and Troy W. Lewis, for appellant.

      Sam T. ■& Tom Poe, for appellee.
   Kikbt, J.,

(after stating the facts). Appellant insists that the court erred in not sustaining its demurrer to the complaint,!since it alleges the policy limited the indemnity in any event to payment of $7 per week for 20 weeks of any one year, but, as the opinion herein shows, we have concluded that no error was committed in overruling the demurrer, this being a suit for damages for breach of the contract, rather than for indemnity under the terms of the policy.

It is undisputed that appellant company refused to comply with the provisions of the policy and denied liability thereon, alleging that such disability was occasioned by, and the result of, a venereal disease not covered by the policy; or that it had been breached by the company’s refusal to pay disability benefits in accordance with the terms thereof.

A fair construction of the terms of the policy binds appellant to pay to the insured during his lifetime and the continuation of a total disability weekly benefits of $7 per week, not exceeding, however, 20 weeks during any one period of 12 consecutive months, said policy providing :

“'* * * The total number of days for which benefits will be paid under this policy is limited to one hundred and forty (140) during any twelve consecutive months.”

A reasonable construction of this provision necessarily limits the number of days for which disability benefits may be paid to insured during any period of 12 consecutive months, but certainly not to the payment only of that amount for a continuing disability, otherwise this clause would have been omitted from the policy. It does not exclude the inference that the parties contemplated that future benefits would be paid for a disability which continued during the lifetime of the insured, such clause limiting only the liability of the insurer to the payment of the amount prescribed to 20 weeks during any consecutive 12 months. If this clause had been omitted from the policy, it would have been like the policies involved in the cases of Commercial Casualty Ins. Co. v. McCulley, 185 Ark. 468, 48 S. W. (2d) 225, and Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364.

Other provisions in the policy show it was intended to remain in full force and effect during the lifetime of the insured, if he paid the premiums as required therein. Policies of insurance are construed liberally in furtherance of the general scheme proposed, such policy being construed most liberally in favor of the insured and most strongly against the insurer. Mosaic Templars of America v. Crook, 170 Ark. 474, 280 S. W. 3, 32 C. J. 1152. This rule of contracts applies with equal force where the provisions of the policy involved are ones of limitation of liability. 1 C. J. 414-15.

It may be true that in case of a lapse of the policy or death of the insured no further claim could be made for a future period of disability as claimed by appellant company, but the limitation of the policy only is to the amount or liability of appellant to the payment of no more benefits in any one year than the 20 weeks as expressly provided. This suit, however, is for damages for breach of a contract, and the jury has found that the contract was wrongfully breached by appellant company, and that the disability here was from an illness or sickness covered by the terms of the policy. The policy provides that the insured must be disabled from performing-work of any nature, confined to'his bed, etc., and certainly such terms do not indicate that it was limited on this point or a policy providing indemnity for partial disability only.

The breach of the contract, the appellant company’s refusal to pay under its terms and denial of any liability thereunder, gave the insured the right to sue for gross damages for such breach of contract, and the court has held that the measure of such damages is the present cash value of the past and future installments of the weekly indemnity based on the life expectancy of the insured. Ætna Life Ins. Co. v. Pfeifer, 160 Ark. 98, 254 S. W. 335. The rule as to the measure of damages is not modified by the fact that the insured died long before the end of 'the period of his life expectancy, the rights of the parties to a contract which has been breached being fixed at the time of the breach thereof. Van Winkle v. Satterfield, 58 Ark. 617, 25 S. W. 1113, 23 L. R. A. 853; 6 Paige on Contracts, p. 5623; Roberts v. Benjamin, 124 U. S. 64, 8 Sup. Ct. Rep. 393, 31 L. ed. 334. The breach of the contract occurred in October, 1930, the suit was brought in August, 1931, and judgment rendered against the company on January 8, 1932, the death of the insured being subsequent to all of these dates, and damages being recoverable for the breach of the contract rather than acceleration of the payment of unmatured installments due under the contract. Manufacturers’ Furniture Co. v. Read, 172 Ark. 642, 290 S. W. 353; Ætna Life Ins. Co. v. Pfeifer, supra.

The testimony is ample to sustain the jury’s finding that the insured was permanently and totally disabled at the time his cause of action arose. Industrial Mutual Ins. Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029.

No error was committed by the trial court in its refusal to give instruction No. A as requested by appellant, since its effect was to limit the amount of weekly disability benefits which insured might recover in the suit to those maturing before the bringing of the suit on August 3, 1931. This, as already said, is a suit for damages for breach of the contract by denial of liability thereunder, and appellee was entitled to recover all damages resulting from such breach in the one suit, it being the breach of the contract, and not the time of its discharge or the time of the bringing of the suit, that inflicts the damages, the breach and denial of liability going to the entire contract being a repudiation of any liability thereunder. Van Winkle v. Satterfield, supra; Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364.

Instruction No. 5 complained of was not erroneous on the measure of damages for the breach of the contract, and was approved in the case of Ætna Life Ins. Co. v. Pfeifer, supra.

Neither was error committed in the court’s refusal to take judicial knowledge of the Hunter Tables of Mortality of Disabled Lives. The policy was not an insurance of a disabled man, but provided indemnity for disability to the insured, and certainly there was no necessity for giving any notice of any further disability under the policy of insurance, if any had occurred thereafter, or payment of a premium therefor, since the policy was breached and liability repudiated by the refusal to pay for the disability that resulted and for which indemnity was claimed as arising from a disease excepted from the provisions of the policy, a risk not covered thereby.

No error was committed in not instructing the jury otherwise, as appellant claims, by the giving of plaintiff’s requested instruction No. 4.

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


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Rose v. W. B. Worthen Company.
    4-2652
    Opinion delivered October 3, 1932.

      Carmichael & Hendricks, for appellant.

      E. G. Shoffner, for appellee.
   Mehaeey, J.

This is the second appeal in this case. When the case was here before, we held that act 195 of the Acts of 1927 authorized administrators, executors and guardians to borrow money for certain purposes and secure the same by mortgage upon the real estate belonging to the estate represented by them. We held, however, that there was no authority granted by the act to borrow money and secure the same by mortgage or deed of trust except for the purposes specified in the act, and that, if money was borrowed and a mortgage executed for any other purpose than that expressed in the act, the order authorizing it and the mortgage executed in pursuance thereof were void. The decree of the chancery court was reversed, and the cause remanded with directions to enter a decree in accordance with the opinion of this court. Rose v. W. B. Worthen Co., 184 Ark. 550, 42 S. W. (2d) 1002.

After tlie case was remanded, it was again tried in the Pulaski Chancery Court, and that court held that the mortgage was valid as to the following items: Recording fees, $5.25; continuation of abstract, $22.50; State and county taxes, $228.40 ; street improvement taxes, $160; sewer improvement taxes, $21.95; fire insurance premiums, $53; brokerage on loan, $5.77. Interest was allowed on these items at 7 per cent., amounting to $85.02. There was another item of $85 allowed for money paid to minors under the order of court, but there was no appeal from the allowance of $85, and it is not involved here.

This appeal is prosecuted to reverse the decree of the chancery court holding that the above items are secured by the mortgage, and that they are authorized under act 195 of the Acts of 1927.

Appellants insist, first, that the word “obligation” used in the statute means an obligation created by a contract which is a lien on the land, but that the word ‘1 obligation” does not include taxes. It is said by appellant that taxes are liens but not obligations secured by liens. Numerous authorities are referred to defining “obligation.” Originally, the term was limited to instruments under seal of a certain kind, such as a bond, and the obligation could at that time be created only by a written instrument. The word “obligation” now, however, is not so limited, but in the act of 1927 it is used in the sense of liability either created by contract or by operation of law. 46 C. J. 447-448; Elasser v. Haines, 52 N. J. L. 10, 18 Atl. 1095. In order to arrive at the meaning as used in the statute, we must consider the connection in which it is used and the evident purpose of the Legislature in permitting mortgages and deeds of trust to be executed as prescribed by the statute. When we consider the whole act, there seems to be no doubt that the Legislature intended to authorize administrators, executors and guardians to borrow money to protect the interest of the minors, and the words used by the Legislature are broad enough to include all obligations or liabilities which are liens on land.

Appellants contend that taxes are liens, but that they are not obligations secured by liens. Our statute providing for lien for taxes is as follows: “Taxes assessed on real and personal property shall bind the same and be entitled to preference over all judgments, executions, incumbrances or liens whensoever created, and all taxes assessed shall be a lien upon and bind the property assessed from the first Monday in June of the year in which the assessment shall be made, and shall continue until such taxes, with any penalty that may accrue thereon, shall be paid; provided, as between grantor and grantee said lien shall not attach until the first Monday in January in each year after the tax lien attaches.”’ Section 10,023, Crawford & Moses’ Digest.

There can be no doubt that the taxes create an obligation or duty, and that they are a lien on the land. But it is claimed that, while the taxes are obligations, they are not obligations secured by lien. We do not agree with appellant in this contention. They are not only secured by the very terms of the statute, but they are entitled to preference over all judgments, executions, incumbrances or liens whensoever created. If the act did not include taxes and assessments, then it would be impossible for minors in the circumstances ■ of these minors to prevent a sale of the land for taxes .and assessments. If taxes are not included in the act, and the guardian or executor or administrator had no money in his hands with which to pay the taxes, the lands would be sold, and we think that the intention of the Legislature was to permit borrowing money and executing mortgages for liens of this character as well as liens created by contract.

It is next contended that a mortgage cannot be given on a part of an infant’s estate to take care of liens not covering the particular property. The intention of the Legislature seems to be plain, and that the act authorizes borrowing money and executing a mortgage for the purpose of paying obligations secured by liens on any property except tbe homestead. There is a proviso, reading as follows: “Provided, that the homestead shall not be incumbered by mortgage or trust deed except for the purpose of satisfying existing liens against the homestead.” Therefore the homestead cannot be mortgaged to raise money to pay obligations that are liens on any other lands except the homestead. The other items were expenses necessarily incurred in order to enable the guardian to borrow money. It is a matter of common knowledge that persons would not lend money on a house or building unless the property was insured, and it is also true that the other expenses are necessary, and, if not allowed, would prevent the borrowing of money to discharge liens. No person would lend money on a house without its being insured, and no one would lend money on property without an abstract showing title, and the recording fees are, of course, a necessary part of the expense. To hold that these items could not be paid would defeat the very purpose of the act. There is nothing in the record tending to show that any of the items of expense were created after the mortgage was made. We find no error, and the decree is affirmed.


author: McHaney, J.

text:
    Southern Lumber Company v. Green.
    4-2644
    Opinion delivered October 3, 1932.

      D. A. Bradham, Aubert Martin and Fred L. Purcell, for appellant.

      D. L. Purhins and Leffel Gentry, for appellee.
   McHaney, J.

Appellee brought this action against appellant to recover damages for personal injuries sustained by him while an employee in appellant’s sawmill. On November 19, 1930, while working in the plant of appellant as oiler and while engaged in greasing bevel gears which drive the ‘Give rollers” on one of the edger tables in the sawmill, appellee’s right hand was caught in the cog wheel, brought in contact with the hood or covering over the top part of the gear and was injured— four fingers of his right hand being broken and crushed to such an extent that it became necessary to amputate three of them. A trial resulted in a verdict and judgment in favor of appellee in the sum of $1,000.

Several errors are assigned for a reversal of the judgment, the most serious assignment being the alleged error of the court in refusing to direct a verdict for appellant. This challenges the sufficiency of the evidence to support the verdict, and this necessitates a brief review of the evidence in the light most favorable to ap-pellee. It is the settled rule of this court that a judgment will not he reversed on account of the insufficiency of the evidence where there is any substantial evidence to support it, viewing the evidence in the light most favorable to the party in whose favor the judgment is rendered. Viewed in this light, the evidence establishes that appellee, a colored man, at the time of the injury was just past twenty-one years old; that he had been working for appellant in different capacities for about three and one-half or four years; that he had been performing the duties of oiler a very short time, substituting for the regular oiler, who had received an injury in the same manner a little less than thirty days prior to appel-lee’s injury; that he had never greased the gears on the edger table prior to the time he was injured, except perhaps once a year or so previous; that he was instructed by the mill foreman on the morning of the accident to grease said gears by applying the grease to the outer cog wheel with a paddle while the machinery was in operation, but no other instructions were given him as to how the work was to be done; that he was injured on the first gear that he attempted to grease, there being a number of similar gears on the edger table; and that he had previously worked around and about the edger table at different times, but paid no particular attention to the gears or how they were greased. It is further shown that the gears were covered by a guard over the top part which came down half way to the bottom, leaving the under side exposed, which was standard equipment; that the cog wheels had become worn on the gear at which he was injured, having sharp edges, and that this caused the cogs to catch the stick or paddle, pulling his hand into the machinery. Appellee did not know of this condition. Under this state of facts we are unwilling to say as a matter of law that appellee assumed the risk, and that the court should have directed a verdict against him. On the contrary, we think the facts make a question for the jury, especially when his youth and inexperience are taken into consideration. The general rule is that the question whether an employ assumes the risk is one for the jury and not for the .court-unless the danger is so open and obvious that a person of reasonable prudence would not perform the particular service. This is always true where the servant is acting under the immediate direction of his superior unless he knows and appreciates the danger of obeying the orders or the danger is so open and qbvious that a person of reasonable prudence wonld refuse to do so. Owosso Mfg. Co. v. Drennen, 182 Ark. 389, 31 S. W. (2d) 762. Here the servant was not only acting by direction of his superior, hut there was some evidence of -negligence on the master’s part of a defective condition of the cog wheel which was or could have been known to the master by an inspection and was unknown to the servant. Furthermore the servant, although twenty-one years of age, was young and inexperienced, and it is well settled that the law imposes the duty of instructing and warning such a one regarding the duties to be performed and the dangers incident thereto. Ward Furniture Mfg. Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002.

Error is assigned on many grounds to the giving of instruction number one for appellee. This is a lengthy instruction and no useful purpose could be served by setting it out and commenting on the alleged errors separately. Exceptions were saved to it, both general and specific, all of which we have carefully examined and find them without merit. Complaint is also made of the refusal of the court to give appellee’s requested instruction number seven. We have carefully read all of the instructions given by the court as well as those refused, and are of the opinion that the court fully and fairly instructed the jury on every phase of the case. "We therefore overrule these assignments.

Another assignment is that the court erred in allowing Fred Elliott, a witness for appellee, to testify over its objections that appellant had other cog gears on a casing table which were larger than those on the edger table, hut serving a similar purpose, which were entirely covered or protected by a guard and were greased in a different way, and that appellee would not have been hurt if the gears on the edger table had been encased and greased like those on the casing table. Ap-pellee responds to this statement by saying that no such testimony was given by the witness, and quotes the transcript of his testimony which shows that he did not. Whether he did or not we think unimportant, as the testimony in no way could have prejudiced appellant. The gears on the casing table were entirely enclosed with a guard or hood, both above and below, and the grease was poured in at the top in a receptacle provided for that purpose. Of course, had the gears on the edger table been so encased and greased, appellee could not have been hurt, and the witness’ statement to that effect was a simple statement of fact which the jury and everybody else would know as well as the witness.

Complaint is also made of the action of the court in permitting the witness, Quimby, to testify over its objections that there was danger in greasing the cog gears on the edger table, and that it was more dangerous to do so than putting grease in the grease boxes along the line shaft. This was another simple statement of fact which every person knows to be true, and moreover the witness was a millwright of twenty-five years’ experience and was testifying as an expert. -We think no prejudicial error occurred in the admission of this testimony.

Another assignment of error relates to the testimony of Isom Brewer, who testified as a millwright of long experience, which we have examined and found unobjectionable, at least not prejudicial to appellant. Three farmers were permitted to testify as to the extent of the impairment of appellee by reason of the loss of the fingers on his right hand. Inasmuch as it is not claimed that the verdict in this case is excessive, which it manifestly is not, we fail to see wherein the testimony of these witnesses prejudiced appellant in any manner. Their testimony was to the effect that his impairment as a farm hand or common laborer, such as appellee’s education and training fitted him for only, was, in their judgment, from fifty to seventy-five per cent. Of course, the jury was as capable of judging this matter as were the witnesses, but, conceding it to be erroneous, it was harmless.

The smallness of the verdict and judgment in ap-pellee’s favor shows that the jury probably considered that his injury was the result, in part, of his own negligence, and that they reduced the amount to which he would have otherwise been entitled under the comparative negligence statute as instructed by the court. "We find no reversible error, and the judgment must be affirmed. It is so ordered.


author: Butler, J.

text:
    DeMers v. Graupner.
    4-2649
    Opinion delivered October 3, 1932.

      Ben ID. Briclthouse and T. N. Robertson, for appellant.

      Trieber & Lasley, for appellee.
   Butler, J.

Plaintiff and defendant, respectively, the appellee and appellant here, were adjoining property owners in the residential -section of the city of Little Rock. Their properties consisted of adjacent lots upon which each had established and maintained a residence for a number of years. Between the lots the defendant some years ago had constructed an ornamental iron fence, but -shortly before the institution of this suit she began the erection of a solid board fence separating her back yard from that of the plaintiff and continuing its construction along the line between the properties to a point about even with the front of defendant’s house. Plaintiff brought this action to enjoin the further construction of said fence and to require that portion which had already been built to be torn down and removed. Plaintiff alleged that the defendant was ¡maliciously constructing the fence for spite, which fence, when completed, would constitute a solid wall about eight feet in height; that it would be unsightly, obstruct his light and air' and materially lessen the value of his property.

The defendant answered denying the allegations of the complaint and in effect alleging that the construction of the fence was not caused by malicious and spiteful purpose on her part, but was necessary for the quiet enjoyment of her property. She made counterclaim for damages because of the depredations by plaintiff’s and neighbors’ children, to which a reply was filed, and an amendment also made to the complaint in which it was alleged that plaintiff had acquired title by adverse possession to all of the ground south of the iron fence and prayed in addition to his prayer for injunction that his title to all of the land south of the iron fence be quieted in him because of his adverse holding.

The cause was heard upon the pleadings and testimony offered, and the court entered a decree finding in favor of the plaintiff and dismissing the defendant’s cross-complaint for want of equity.

It is conceded by the parties to this action that there is no statute in this State regulating the construction of fences of such character as it is alleged was in course of construe tion by the appellant, or that this court has ever been called upon to decide the precise issue here involved. It is the contention of the appellant that, according to the rule at common law and the great weight of authority, an owner of land may erect on his own property any kind of structure he may desire, even though it might have the effect of causing great annoyance to the neighboring owners, and that the motive or intent of the person erecting the structure cannot be inquired into unless the structure can have no benefit or advantage, but is for the avowed or manifest purpose of damaging a neighbor; nor could an owner be prevented, even though the purpose is a malicious one, from erecting a structure which merely prevents the free use of light and air by the adjoining property owner. In support of this contention counsel for the appellant has cited an array of authorities, among which are 1 C. J. 1229; 1 R. C. L. 399, and cases from courts of Kentucky, Ohio, Pennsylvania, South Carolina, Texas, Vermont and from a number of other respectable courts of last resort.

It is the contention of the appellee that, although the rule contended for by the appellant may have its foundation in common law and be supported by the greater weight of authority, yet the trend of modern decisions is to the effect that an adjoining landowner may enjoin the erection or maintenance of a structure erected for the purpose of annoying him and making the use of his property less desirable. To support this view, appellee cites cases from the States of Oklahoma, Michigan, Nebraska and other jurisdictions.

As we view the facts, it becomes unnecessary for us to express our adherence to either of the conflicting views. It is our opinion that the preponderance of the evidence is to the effect that the fence complained of was being built, not for the sole purpose of annoying the appellee, but to preserve and protect appellant’s property from trespassers and from the wilful destruction or damage of her flowers, fruit and windows inflicted by thoughtless persons some of whom at least were attracted to the neighborhood by reason of the means of recreation afforded by the appellee. While the fence to some extent obscured the vision of those looking from the ap-pellee’s kitchen and dining room windows and was not as attractive'as the ornamental iron fence, it was not of an unusual height, considering the purpose for which it was being built, as it was not more than eight feet, high— probably about seven feet. There is some testimony to the effect that obnoxious articles were hung upon the fence and that offensive language was used by the appellant to members of appellee’s household, but this all occurred after the institution of this suit, and had but little bearing on the question of the motive which induced the construction of the fence.

We are also of the opinion that the decree of the chancellor quieting title in appellee to all of the land south of the iron fence was erroneous. ■ The evidence is clear that the property line of appellant extended south of the iron fence about six inches at one end, gradually increasing to about eighteen inches at the other, and, while the appellee had mowed the grass on this strip for a number of years, there was no evidence of any act upon his part or any one for him which would indicate an intention to claim beyond the true boundary between his property and that of the appellant, or any conduct which would bring home to the appellant the knowledge that he was intending to divest her of title by adverse occupancy. Indeed, it is quite manifest that he never had any such intention until the unfortunate incidents occurred out of which this suit has arisen.

The decree of the trial court is therefore reversed, and the cause remanded with directions to set aside the decree vesting title to the strip above described in the appellee and to dissolve the injunction.

McHaney, J., dissents.


text:
    Atlas Life Insurance Company v. Bolling.
    4-2654
    Opinion delivered October 3, 1932.

      Silas W. Rogers and C. G. Brewer, for appellant.

      H. G. Wade and Gaughan, Sifford, Godwin & Gaug-han, for appellee.
   Butler, J.

This suit was instituted by tbe appel-lee to recover .benefits for total and permanent disability under tbe terms of a policy of insurance issued to bim by tbe appellant company. In tbe complaint appellee alleg’ed in substance that tbe policy sued on bad been at all times since tbe date of issuance and delivery to bim in full force and effect, and that, while it was in force and effect, be became totally and permanently disabled so as to prevent bim from engaging in any remunerative occupation or performing any work; that the appellant company had denied liability, and that under the terms of the policy he was due the sum of $25 per month from the date of his disability. He prayed judgment for that amount and 12 per cent, penalty and reasonable attorney’s fee.

The appellant answered denying the material allegations of the complaint and specifically denying that the appellee had at all times done and performed all things required of him to keep his policy in full force and effect, and that, since the date of the issuance of the policy or at the time of the filing of the answer, it was in full force and effect. The appellant subsequently filed an amendment to the answer in which it alleged that the policy was obtained through fraud on the part of the appellee, in that he had made false statements in his application on June 20, 1930, wherein he stated that he was in good health on that date; that this statement was not true as the alleged injury to the appellee was sustained on June 18,1930, before the date of the application for, and issuance of, the policy.

On these pleadings and the testimony adduced the case was submitted to the jury which returned a verdict for the appellee for the sums sued for. Thereupon the court entered judgment for the sums found by the jury and for a 12 per cent, penalty and attorney’s fee. From that judgment is this appeal.

One of the contentions made by the appellant is that the undisputed testimony shows that the injury out of which appellee’s disability grew occurred on a day in June before the application was made for insurance and before the policy was issued and delivered, and that therefore, under the terms of the policy, no recovery could be had, and, if the evidence as to the date of the injury was not wholly uncontradicted, the great preponderance of the testimony was to the effect that the injury occurred before the date of the application, and that appellant was entitled to have that issue submitted to the jury under its requested instruction No. 2 which in effect told the jury that, although the appellee (plaintiff) was wholly and permanently, disabled within the meaning of the policy, yet, if the cause for said total and permanent disability resulted from an injury receivéd prior to his application, there could he no recovery.

We have examined the contract of insurance with care, and are of the opinion that the construction placed ■ upon it by appellant is not warranted by its terms. That part of the clause of the policy on which this suit is predicated provides as follows: “After one full annual premium shall have been paid upon this policy, and before default in the payment of any subsequent premium, if the insured shall furnish the company with due proof that he has since such payment * * * become wholly disabled by bodily injury or disease, not occasioned by military or naval service # * *, so that he is, and presumably will be, thereby permanently, continuously and wholly prevented from engaging in any occupation for remuneration or profit, or performing any work, and that such disability has then existed continuously for not less than ninety days, * * * the company will pay to the insured * * * a monthly income of $10 for each one thousand dollars face amount of insurance.”

The above clause does not provide for exemption from liability where the cause of disability occurred prior to the date of the policy. If the insurer had so desired, it could have in plain terms made the provision for which it now contends, but, for us to sustain the contention made, we would have to write something into the policy which it does not in fact contain. It is well settled that policies of insurance must be interpreted according* to the plain import of the language used, and where there is an ambiguity or a question of doubt arises, it must be construed in favor of the policyholder. McClain v. Reliance Life Ins. Co., 170 Ark. 478, 280 S. W. 15; Great American Cas. Co. v. Williams, 177 Ark. 87, 7 S. W. (2d) 975; Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S. W. (2d) 611. Therefore, although the injury which after resulted in total disability occurred before the application for insurance was made, this would not of itself prevent a recovery.

We are of the opinion, however, that the court erred in the giving of its instruction No. 1, which in effect told the jury that it should determine from all the facts and circumstances in evidence whether the policy of insurance was delivered to the plaintiff while he was in good health, and that the burden was upon the defendant to establish the fact that he was not in good health when the policy was delivered. It must be remembered that the defendant denied in its answer that the policy was in force, and that, by the terms of the entire contract, in order for the policy to be effective, the insured must have been in good health at the time of the delivery of the policy. In the case of New York Life Ins. Co. v. Mason, 151 Ark. 135, 235 S. W. 422, 19 A. L. R. 618, the court said: ‘ ‘ The plaintiff alleged in the complaint that the policy was executed and put in force, and this was denied in the answer, and it was an essential part of the plaintiff’s case to prove that there had been a delivery of the policy in compliance with the stipulation that the policy should not be in force until delivery to the assured while in good health and upon the payment of the premium.” Under the authority of that case it is clear that the burden rested upon the plaintiff not only to prove delivery of the policy and payment of the premium, but that the assured was in good health at the time of the delivery of the policy.

The court gave instruction No. 3 over the objection of the appellant, as follows: “You are instructed that if you find from a preponderance of the evidence that the application .for insurance issued by defendant to plaintiff was prepared by the agent for the insurance company and the doctor selected by the insurance company; and, if you believe that the plaintiff truthfully answered all questions asked him by the company’s agent or examining physician, or if you find that the material statements appearing in said application which it is now claimed are false, were written into said application by said agent or doctor for the insurance company, and were statements not made by plaintiff, or if you believe that the true facts alleged to be false statements were known to the doctor or agent of the insurance company, then you are told that such misstatements will not avoid the policy of insurance sued on.” It will be seen that in the above instruction the jury was told that if the statements in the application were not made by the plaintiff, or if made and if false and known to the doctor or agent of the insurance company, then such misstatements would not avoid the policy. In response to that instruction, after it was given over the objection of the appellant, the appellant requested an instruction to the effect that if the agent and the applicant entered into a collusion to conceal facts with reference to a prior injury the verdict should he for the defendant. In commenting upon this instruction counsel for the appellee insist that it was properly refused because there was no evidence in the record showing’ that there was any col-lusion between the appellant’s soliciting agent and the applicant, or any effort made by any one to conceal any facts from the insurance company. This contention we find to he correct. There is no evidence that there was any collusion between the doctor or agent of the insurance company and the applicant to conceal the facts or any knowledge on the part of the agent or doctor that any misstatements were made. Neither was there any evidence that either of them wrote any answers to the nuestions in the application not made by the applicant himself. On this branch of the case, the applicant testified that he did not remember what the statements were, but simply stated that whatever statements he made were true. He also testified that he did not remember the date of his injury. Therefore, that part of instruction No. 3 was abstract, and we are unable to say how it might have influenced the jury. It would indicate to the jury that there was in the mind of the presiding- judge some evidence to the effect that the agent did not write the answers as made by the applicant, and also that, if the applicant did make the answers as written, the agent knew they were false. This might have had a tendency to mislead the jury and induce them to indulge in conjecture. Therefore, we think the error was prejudicial. Schirmer v. Hallman, 135 Ark. 5, 204 S. W. 606; St. Louis, S. F. R. Co. v. Townsend, 69 Ark. 380, 63 S. W. 994; Mo. Pac. Rd. Co. v. Kirby, 152 Ark. 90, 237 S. W. 687; Wisconsin & Ark. Lbr. Co. v. McCloud, 168 Ark. 352, 270 S. W. 599.

For the errors indicated, the judgment is reversed, and the cause remanded for a new trial.


author: Smith, J.

text:
    Reynolds v. State.
    Cr. 3818
    Opinion delivered October 10, 1932.

      Edward Gordon and Garner Fraser, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Smith, J.

This appeal is from a judgment sentencing appellant for a term of twenty-one years in the penitentiary upon a conviction for murder in the second degree. Only one assignment of error appears to be of sufficient importance to require discussion, and that is, whether the testimony is legally sufficient to support a conviction for that crime.

There is no serious conflict in the testimony, which is to the following effect: Deceased, accompanied by Ott Reynolds and a son of Ott Reynolds, came to appellant’s home early in the evening for the purpose of visiting one Jack Wilson, who was there at appellant’s home suffering from a burned arm. Ott Reynolds is a cousin of appellant.

Appellant heard a noise at his barn, and took his shotgun and went to the barn to investigate. When he returned from his investigation, he found deceased and Ott Reynolds and the latter’s son in the house. The visitors did not go into Wilson’s room, but remained in the room where appellant and the members of his family and the wife of Mr. Wilson were. There was a small dog in the room, concerning which deceased made a remark so vulgar that only a man maudlin drunk would have made it. Deceased also injured the dog by trying to break its leg. Ott Reynolds enticed deceased out of the room and endeavored to take him home. Deceased refused to go, and declared he would re-enter the room. To prevent him from doing so, the door was closed and latched. The door consisted of four planks, held together by two braces or cross-pieces, with a wooden latch in the center. Deceased shook and kicked the door, and continued kicking it until he kicked it open, and in doing so one of the planks of the door had been kicked loose from the crosspieces to which it had been fastened. The occupants of the house were screaming while deceased was kicking the door. The testimony is confusing as to whether deceased attempted to enter the room immediately after kicking the door open, or whether he kicked it open when he first left the house. In any event, deceased returned to the house, after having been taken away from it by Ott Reynolds, and was warned several times by appellant not to re-enter. Deceased was shot with, a shotgun, and fell on the porch just in front of the door, where he died in a short time.

For the reversal of the judgment, it is insisted that the undisputed evidence shows that appellant killed deceased in defense of his home and the inmates therein, from the aggression of one who was attempting, by violence, to enter it.

On behalf of the State, it is pointed out that all of the witnesses to the killing who so testified were either relatives or friends of the defendant, and it is insisted that the presumption arising from the proof of the killing under § 2342, Crawford & Moses’ Digest, was not overcome by this testimony.

This section reads as follows: “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense. committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’

This statute has been construed in numerous cases, and the case of Brock v. State, 101 Ark. 147, 141 S. W. 756, is exactly in point on the application of the statute to the facts of this case. In the Brock case, supra, the court read the statute as an instruction in the case, and prosecuting counsel, in commenting upon the statute, said: “The instruction means that, the killing being proved, the burden of proving that he was justified in doing it is on the defendant; and°if the defendant does not prove to your satisfaction that he is not guilty, you must convict him of murder. ’ ’ The trial court overruled an objection to this argument, aDd in holding that this was error, this court said: “The remarks of the counsel, sanctioned by the court in its refusal to sustain an objection to them, were a misinterpretation of the instruction that had been given by the court, and were an incorrect statement of the law. It was a statement, too, in direct conflict with the instruction upon which the attorney was commenting.

“The court correctly instructed the jury in the instruction that the burden rested upon the State to prove the crime charged, and that this burden did not, at any time, shift to the defendant, but, according to the construction which the attorney placed upon the instruction, with the sanction of the court, the jury were told in effect that, after the killing had been proved by the State, then the. burden shifted to the defendant to prove that he was not guilty of the crime charged, and that he must make such proof, too, to the satisfaction of the jury. This was well calculated to confuse and mislead the jury, and to cause them to fail to understand the true meaning of the instruction.

“The killing being proved, unless the evidence on the part of the State shows circumstances of mitigation, justification, or excuse, it devolves upon the appellant if he relies upon such circumstances to show them, but the burden is still on the State to show that the defendant is guilty of every grade or degree of crime included in the indictment. The burden, in other words, in a charge for murder, never shifts to the defendant, but always remains on the State. Cogburn v. State, 76 Ark. 110, [88 S. W. 822].”

Other cases to the same effect are as follows: Scoggin v. State, 109 Ark. 510, 159 S. W. 211; Johnson v. State, 120 Ark. 193, 179 S. W. 361; Parsley v. State, 148 Ark. 518, 230 S. W. 587; Williams v. State, 149 Ark. 601, 233 S. W. 776; Black v. State, 171 Ark. 307, 284 S. W. 751; Walker v. State, 100 Ark. 180, 139 S. W. 1139; Maddox v. State, 155 Ark. 19, 243 S. W. 853.

The burden was therefore upon the State to prove that appellant was guilty of murder, notwithstanding this statute, and we do not think the testimony was sufficient for that purpose. On the other hand, we are unable to say, as a matter of law, that the testimony excuses and justifies the killing. There was no testimony of previous ill-will between the parties. Deceased was found to be unarmed after his death, but the testimony does not show whether appellant knew this. Appellant probably knew, or should have known, that neither he nor the other inmates of the house were in danger of great bodily harm from deceased, in view of the number of persons present to restrain him, but deceased’s conduct was such as to arouse the anger of appellant to an irresistible point.

We therefore feel constrained to reverse the judgment sentencing appellant to a term in the penitentiary for murder in the second degree, and to cure that error by reducing the grade of the homicide tó voluntary manslaughter.

The judgment of the court below will therefore be reversed, and the judgment will be modified by reducing the conviction to voluntary manslaughter, and a sentence of seven years, the highest punishment for that offense, is hereby imposed. Blake v. State, ante p. 77. It is so ordered.


text:
    Lake v. Wright.
    4-2655
    Opinion delivered October 10, 1932.

      Mahony ■& Yocum, J. N. Saye and W. T. Saye, for appellant.

      M. A. Matlock and J. R. Wilson, for appellee.
   Smith, J.

This is a consolidated suit, brought by two plaintiffs, who alleged that they were each members of a mercantile firm operating under the name of the Star Clothing Company, to require an accounting of the earnings of the partnership, and we now have before us the third appeal which has been prosecuted to this icourt in that suit.

The first appeal was from a judgment of the circuit court sustaining a demurrer to the complaint, and the opinion which sets out the allegations of the complaint recites the issues in the case. Wright v. Lake, 178 Ark. 1184, 13 S. W. (2d) 826. We there held that a cause of action had been stated, and the question involved in 'this appeal, like that on the second appeal (Wright v. Lake, 183 Ark. 954, 39 S. W. (2d) 712), is whether the plaintiffs proved their alleged cause of action. There was a verdict and judgment in their favor on the last trial of this cause, from which is this appeal.

For the reversal of this judgment it is first insisted that a verdict should have been directed in favor of appellant, for the reason that the suit was not commenced within three years after the cause of action accrued. This was the theory upon which the court below sustained the demurrer to the complaint, but we held on the first appeal, supra, that, where there had been a fraudulent concealment of a cause of action, the statute of limitations did not begin to run until the fraud was discovered. ‘ This question of fact was submitted at the trial from which the present appeal comes upon conflicting testimony, and is concluded by the verdict of the jury.

Appellant kept the books of the partnership, and ap-pellees were salesmen, and it was shown that settlements were had at the end of each year, and a final settlement was had when appellees severed their connection with the partnership, and it is insisted that these settlements were binding on all parties. So they were in the absence of fraud or mistake, but the question in the case is the one of fact, whether there was a mistake in the settlements and a fraudulent concealment thereof; and, as we have said, this issue was submitted to and was passed upon by the jury.

It is urged for the reversal of the judgment that the court erred in permitting appellee Wright to testify concerning a proposed compromise agreement between himself and appellant. It is, of course, incompetent to prove an offer of settlement made as a compromise, but the testimony in question was not offered or admitted for that purpose. The court, in admitting tbe testimony, stated that it could be considered by the jury only as a circumstance relating to the question of the concealment of the cause of action. It will be borne in mind that the cause of action was apparently barred by the statute of limitation, and the plaintiff was required to prove, and was endeavoring to prove, that the cause of action had been fraudulently concealed, and that therefore the bar of the statute had not fallen. This testimony was to the following effect: The suit embraced the partnership earnings for the years 1922,1923 and 1924, and Wright testified that he would not have known that the settlements were not correct, had he not received notice from the United States Revenue Department advising him that he owed the Government additional income taxes for the year 1922 on his part of the earnings of the partnership. This notice related only to the earnings for the year 1922, and Wright did not know, when he discussed the settlement with appellant, that a mistake had been made for the subsequent years of 1923 and 1924. There appears to have been no question as to the amount of the mistake for the year 1922, and appellant proposed to pay that amount, but he demanded the execution of a receipt in full for all demands against the partnership. Wright insisted that there be added to the receipt the words, “for the year 1922,” and when appellant declined to permit this áddition the attempt to settle the 1922 account failed. We think this testimony has some probative value tending to show, not only that there was a mistake in the accounts for the subsequent years, but also to show a concealment of, or an attempt to conceal, that fact. The testimony was therefore admissible for the purpose for which it was admitted.

The cause appears to have been submitted to the jury under correct instructions, although certain of them were objected to on the ground that there was no evidence upon which to base them. We think there was, and the instructions given fully submitted appellant’s theory of the case.

The testimony tended to support the allegations of the complaint, which were recited in our first opinion in this case, and we there said that a cause of action was alleged.

The judgment must therefore be affirmed, and it is so ordered.


author: Kirby, J.

text:
    Standard Pipe Line Company v. Gwaltney.
    4-2662
    Opinion delivered October 10, 1932.

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

      McNalley & Sellers, for appellee.
   Kirby, J.

(after stating the facts). It is first urged that the court erred in refusing to direct a verdict in appellant’s favor at the conclusion of the testimony for appellee and also after all the testimony was introduced. It is insisted that there was no substantial testimony supporting the allegations of negligence on the part of appellant or that working in the water and slush caused the injury to appellee; appellant insisting that the undisputed testimony disclosed that appellee was an experienced workman, knew as much about the conditions under which the work was to be done as any one, and assumed the risk of any injury therefrom. It is undisputed that one of the men in the gang, when they were ordered to clean up the pumping station in the presence of appellee asked Mr. Hamilton, the foreman, “What about some boots to get in and clean it out,” and that he was told they didn’t need any boots, that it was not dangerous and that they couldn’t do any good with boots in there.

Appellee testified about Ms experience working in the oil fields, denied that he knew that he might become infected from working in oil and slush in cleaning out the pumping station, saying: “No, sir. I never heard of it before; I didn’t know anything about it.”

It was not denied that the men had requested that they be furnished rubber boots for doing the work; and the foreman stated that the company did furnish rubber boots to employees in certain places “where they were working in oil, where there was acid and stuff like that, like down here below these refineries.” He also said that several of the men under his supervision had complained about sore feet, which they said was the result of oil poisoning.

The company’s physician, to whom appellee was sent for treatment, pronounced the trouble “oil poisoning” and cautioned appellee not to work around where he would get oil on his feet after he begun to recover.

Appellee had the right, in the absence of knowledge on his part, to rely upon the assumption that the master had performed his duties so as not to expose him to extraordinary hazards, and, being directed by his foreman to do this work in this place, was justified in obeying the order and did not assume the risk incident thereto, not realizing the danger to which he was thereby exposed. A. L. Clark Lumber Co. v. Northcutt, 95 Ark. 291, 129 S. W. 88, Woodley Pet. Co. v. Willis, 172 Ark. 671, 290 S. W. 953; Dickinson v. Mooneyham, 136 Ark. 606, 203 S. W. 840; Central Coal & Coke Co. v. Fitzgerald, 146 Ark. 109, 225 S. W. 433; St. L. S. W. Ry. Co. v. Gant, 164 Ark. 621, 262 S. W. 654; and Western Coal & Mining Co. v. Burns, 168 Ark. 976, 272 S. W. 357.

The jury was also warranted in finding from the testimony that the performance of the service under the direction of the master resulted in the injury, as appellant’s physician, to whom appellee was sent for treatment, declared he was suffering from oil poisoning; and he was not shown to have been so afflicted before he did this work, nor was there any evidence or indication that he had performed any labor of any kind thereafter which did expose him to the danger of oil poisoning. The testimony is sufficient to support the verdict, and the court did not err in refusing to direct a verdict in appellant’s favor.

Neither did the court err in giving appellee’s requested instruction No. 1, which was not abstract, and submitted to the jury the question of appellant’s negligence in not exercising proper icare to furnish appellee a reasonably safe place in which to work. If the foreman knew, or by the exercise of ordinary care could have known, that it was not safe to work in the oil and slush without protective covering, and the plaintiff did not know of such danger, he should have been notified thereof, and certainly did not assume the risk of any such danger. Appellee stated he did not know of any such danger; and it was shown that appellant’s foreman knew that many of the men under his supervision had complained of oil poisoning, and that the company supplied rubber boots for the protection of its employees who were required to work where there was oil and acid and stuff like that.

Neither was error committed in the instruction complained of upon the assumption of risk. Appellee might well have been considered inexperienced, in so far as being unacquainted with the dangers that might result from working in the oil and slush without rubber boots where he was directed to work, and the jury could have found that appellant knew such danger, or should have known of such danger, through the knowledge of its foreman from the different cases of poisoning with which he was shown to have been acquainted, leaving the jury to determine whether he exercised reasonable care in failing to warn the appellee of such danger. Appellee was experienced in many kinds of service about an oil field, but testified he knew nothing about any oil poisoning resulting from working in the oil, and he was not only not warned about the attendant danger but was assured by the foreman that there was no danger when directed to do the work.

Neither did the conrt err in refusing to give appellant’s requested instructions telling the jury that appellant would not be liable for injury resulting from walking and standing in the oil and slush while cleaning out the pumping station, if they believed that an ordinary individual under the same circumstances doing the work would not have been injuriously affected by it, or if appellee’s feet were over sensitive and more susceptible to poison for any reason than any ordinary person making it a place of peculiar danger to him on account of his physical condition, unless the foreman was aware of such fact or by the exercise of ordinary care could have known of it. There was no testimony to show that appellee was any more susceptible to oil poisoning than the ordinary man, nor that he had knowledge of such condition, if it had been a fact, and did not disclose it to appellant’s foreman when he was directed to assist in cleaning out the pumping station, where he would be compelled to walk and stand in the slush and waste oil.

It is true that only one of the other men enga'ged in the service of appellant with appellee in cleaning out the pumping station was poisoned, and the effects of the poisoning developed on his arm, but such fact does not show that appellee had any knowledge of any such physical condition that would make him more susceptible to oil poisoning than the ordinary man, and certainly he was ignorant of any such condition if it existed, never having suffered from such poisoning theretofore. The negligence here consisted in not exercising ordinary care to furnish a reasonably safe place in which to do the work which appellee was directed to and did perform in cleaning out the pumping station, being assured that the work was not dangerous and that the employees did not need to use rubber boots, which were usually supplied the workmen for performance of such service under conditions that might otherwise result in injury to them.

The appellee was injured, has suffered much and has long been out of employment and has not yet recovered, but the verdict is not claimed to be excessive. We find no error in the record, and the judgment is affirmed.


text:
    Crown Coach Company v. Meadors.
    4-2663
    Opinion delivered October 10, 1932.

      James B. McDonough, for appellant.

      Partain & Agee, for appellee.
   Mehaeey, J.

Tbe appellee brought this suit for damages, claimed to have been suffered by him, by reason of the negligence and carelessness of appellant, in giving appellee erroneous information as to whether the bus of appellant had already left Van Burén, Arkansas.

The appellant is a corporation organized under the laws of Missouri, and owns and operates a bus line through the States of Missouri, Arkansas, and other States, and operates upon a regular schedule through Crawford County, Arkansas.

Appellee alleged that on August 28,1931, he received a message informing him of the serious illness of his daughter at Harrison, Arkansas, and that she was going to be operated upon immediately for appendicitis; that when he received the message he went to the ticket office of appellant in Van Burén, which was located in a drug store, and asked when he could obtain passage on one of appellant’s busses to Springdale, Arkansas, so that he could go there and then continue his journey at the earliest possible moment; that the agent of appellant ¡carelessly, negligently and wrongfully informed appellee that the bus had already gone, and there was no other bus or means of transportation that day; that said bus had not in fact gone, but left the city of Van Burén 15 or 20 minutes later, but that appellee relied on the information and was unable to catch the bus, and because of the wrongful information given him, he was delayed several hours in arriving at the bedside of his daughter, and was forced to make a part of the trip in an open car, and the exposure caused him to have a severe cold, and he became sick and suffered great mental agony on account of being deprived of being present at the bedside of his daughter during her illness and during the operation. He alleged that he was damaged in the sum of $2,500.

The appellant filed answer admitting that it was a corporation, and was operating busses for the transportation of passengers in and through Crawford County, Arkansas, and admitting that its busses stopped at or near the Palace Drug Store to permit passengers to alight and to take on passengers, and denied all the other material allegations of the complaint.

It also alleged that appellee was guilty of contributory negligence, and that he assumed the risk. It also alleged that there were other means of traveling to Harrison, Arkansas, and that appellee conld have gone much more directly and quickly by other means of travel. Appellant also filed motion to quash service.

There was a jury trial and a verdict for $200, and the case is here on appeal.

It is admitted that appellant is a public carrier; that it operates its busses on regular schedule; and that the drug store where appellant claims to have gone for information is a regular stop for discharging and taking on passengers; and that its agents there sell tickets.

Appellant insists that the relation of passenger and carrier never existed between appellant and appellee, and that the court should have directed a verdict for appellant:

The appellee testified that he had received a message advising him of the serious illness of his daughter, and that an operation would be performed almost immediately; that he desired to go to Harrison by way of Spring-dale because his wife was at Springdale, and it was his intention that he go to Springdale, get his wife, and that both of them make the trip to be with their daughter.

The appellant operated a bus from Van Burén to Springdale. It was appellee’s intention to take passage on this bus to Springdale, and then he and his wife would get other conveyance to Harrison.

He went to the ticket agent at the drug store, Mr. Triplett, and inquired of him the time the bus would leave for Springdale. Mr. Triplett told him it had already gone. Relying on. that information, and knowing that there was no other means of transportation to Spring-dale until late in the afternoon, he went to a restaurant to get lunch, and then saw the bus leaving the city of Van Burén.

If the agent of appellant had given the correct information, he would have taken passage on this bus, and would have arrived at Springdale several hours earlier than he did arrive, and would have taken passage from there on some conveyance other than appellant’s bus.

After the bus bad left van Burén appellee went to Springdale on tbe six o’clock train, tbe first conveyance by wbicb be could go to Springdale. It took bim about 30 minutes to get bis wife and get a conveyance from Springdale to Harrison. They drove practically all nigbt, arriving at Harrison about six o’clock in tbe morning. Tbe weather was inclement; there was a heavy fog, and it was necessary to keep tbe door open a great portion of tbe time in order that they could see to drive. From this exposure be contracted a severe cold, and became sick and was treated by a physician. He paid a man $10 to take bim and bis wife in bis car from Springdale to Harrison.

This evidence of appellee was corroborated by other evidence.

Triplett testified that be did not remember seeing tbe plaintiff that day; be did not think be gave bim tbe information about tbe bus, but did not remember. Other clerks in tbe drug store who sold tickets also testified that they did not remember about tbe matter.

As to whether appellee went to tbe drug store and asked for information about tbe bus, and as to whether Triplett told bim it bad already gone, were questions of fact for tbe jury.

Appellant first contends that there is no liability because tbe relation of carrier and passenger never existed. A common carrier of passengers owes a duty to- tbe public, and to any one of tbe public intending to become a passenger who applies to tbe agent for information as to tbe arrival and departure of trains or busses.

“It is tbe duty of a carrier to furnish intending passenger with such information, instructions and directions as to its own system or course of conduct as may reasonably be necessary to enable them to pursue their journey, and tbe passenger has tbe right to rely upon tbe representations and replies to inquiries made by bim of tbe proper agents or employees of tbe carrier. Thus when a railroad company authorizes an agent to sell tickets over its line, sncli agent has authority and it is his duty, upon application made to him, to furnish information to persons desiring to purchase tickets over the road he represents as to the proper trains upon which to travel, and whether such trains will stop1 at the station to which the ticket is sold, and other like information regarding the use of the ticket. It is also the duty of the carrier to give a passenger reasonable notice of the necessity for changing cars at .junction points.” 4 R. C. L. 1068.

When one intending to take passage applies to the ticket agent of the carrier for information as to the arrival and departure of its trains or busses, it is the duty of the agent to give correct information, and the person intending to take passage has a right to rely on the information given him by the agent. In such case, if the agent of the carrier gives erroneous information which results in damage to the person applying for information, the carrier is liable if its negligence is the proximate cause of the injury. St. Louis S. W. Ry. Co. v. White, 99 Tex. 359, 89 S. W. 746, 2 L. R. A. (N. S.) 110, 122 Am. St. Rep. 631; Shockley v. So. Ry. Co., 93 S. C. 533, 77 S. E. 221; Hutchinson on Carriers, vol. 3, 1240.

It was, of course, the duty of the appellee to exercise ordinary care; but, when he received information that his daughter was seriously ill, he had a right to go to her bedside, and to take passage on whatever conveyance he could, exercising reasonable care. If he did what a person of ordinary prudence would have done under the circumstances, he was not guilty of contributory negligence, and his acts, if not guilty of contributory negligence, would not prevent him from recovering damages for the wrongful conduct of appellant, if such conduct was the proximate cause of his injury.

Appellant contends that some of the instructions given at the request of the appellee were erroneous, and that the court refused to give instructions requested by the appellant which should have been given. The instructions are lengthy, and we do not deem it necessary to set them out. We have carefully examined all the instructions given by the court, and the instructions, as a whole, fairly submitted the case to the jury.

The jury returned a verdict for $200, and it is not contended that the verdict is excessive. The questions as to the negligence of the appellant and the contributory negligence of the appellee were submitted to the jury on correct instructions, and their findings of fact are conclusive here.

There was substantial evidence to support the verdict, and the judgment is affirmed.


text:
    Oil Fields Corporation v. Hess.
    4-2667
    Opinion delivered October 10, 1932.

      Albert L. Wilson, for appellant.

      Mahony & Yoctum, for appellee.
   Mehaeey, J.

The Oil Fields Corporation is a Delaware corporation authorized to do business in Arkansas, its principal place of business being in Union County.

Appellee, George L. Hess, was a director and president of the Oil Fields Corporation from May, 1925, until the latter part of August, 1928, and he was general manager of the corporation from December, 1925, until the latter part of August, 1928.

Appellee, W. E. Knappenberger, was elected a director in August, 1926, and was superintendent of production at a salary of $450 a month, which was afterwards increased to $500 a month.

On December 4, 1925, the board of directors of the Oil Fields Corporation passed a resolution authorizing and directing appellee Hess to manage the affairs of the corporation subject to the orders of the board of directors, and authorized and directed him to employ such assistants as might be necessary for the producing properties of the corporation, and fix the compensation therefor subject to the approval of the board of directors, and said resolution provided that any contract of employment made by Hess should set forth that the employee consents that he may be discharged at any time by vote of the board of directors or the person employing him, and that the only liability of the corporation shall be for actual compensation for the time such employee has actually been in the service of the corporation. The business of the corporation was producing crude oil.

Under the authority given Hess by the resolution of the board of directors, he, on December 15, 1925, employed W. E. Knappenberger as his assistant as the superintendent of production, with the understanding that Knappenberger should devote his full time to the business of the corporation.

The board of directors approved the employment of Knappenberger by Hess, and in August, 1926, elected Knappenberger a member of the board of directors, at that time fixing his salary at $500 per month.

Albert L. Wilson was a director and general counsel for the corporation at a salary of $1,000 per month.

The evidence introduced by appellees tended to show that it was the custom of the corporation to give employees a vacation with full pay; that the board of directors had discussed this and agreed to it, although no formal resolution was adopted.

The evidence offered by the appellants contradicts this evidence on the part of the appellees and tends to show that there was no discussion by the board, and that it was not the custom to give an employee leave of absence or vacation with pay.

It would serve no useful purpose to set forth the testimony. The testimony is in conflict, and it was a question for the jury to determine what the truth was.

A verdict 'based on conflicting evidence, if there is any substantial evidence to support it, is conclusive here, although we might believe that the verdict was against the preponderance of the evidence.

It is contended by appellant first that a contract with Knappenberger to give him a vacation on pay would, in effect, be giving away $500 of the money belonging to the corporation to one of its directors, and that such contract would be void. It is argued at some length by appellant that a director cannot contract with the corporation, and numerous cases are cited and relied on by appellant. It appears that several of the directors were employed by the corporation and received salaries.

Mr. Wilson, the general counsel, is a director, has been for a long time, and has been receiving a salary of $1,000 a month. Mr. Hess, as general manager, was a director, and received a salary of $1,000 a month.

The general counsel, Mr. Wilson, was not only a director and stockholder, but held proxies for four-fifths of the stock of the corporation.

The evidence shows that in July, 1928, Knappen-berger ’s father was sick in Pennsylvania, and Knappen-berger came to Hess and told him about his father being sick, and that he, Knappenberger, had never taken a formal vacation, and that he would like to take his vacation and go back to see bis father, who was very ill and getting old.

Hess, the president and general manager, bad some work to do in Texas in July, and asked Knappenberger to wait until be got back from Texas, and be could then take bis vacation. After Hess came back from Texas, Knappenberger, about July 28th, left on bis vacation.

Hess testified that when Knappenberger was planning bis vacation, be told Knappenberger to go to Judge Wilson and tell bim about it, so that there would be no misunderstanding. Witness told Knappenberger that Mr. Wilson understood the conditions, and that Knappen-berger went to Wilson’s office, which was connected with Hess ’ office, beard bim tell Wilson that Hess bad granted bim a vacation.

Witness testified that, when Knappenberger took the matter up with Wilson, be was very gracious, and that witness said to Judge Wilson: “You understand be is taking bis vacation like all the other employees and officers have taken their vacations.” Witness then testified that Wilson bad taken vacations on full pay, and that witness also bad. He testified Judge Wilson laughed, and said: “Of course, it is expected that he would do that.” This evidence on the part of appellees was denied by Mr. Wilson.

Knappenberger went on bis vacation and got back to El Dorado on the night of August 26th. Wilson bad directed Hess to discharge Knappenberger, but Hess did not do this, but wired bim to ascertain when be would return. After bis return Wilson told Hess that be intended to take the matter up with the board of directors, and ask them to discharge both Hess and Knappenberger. Suits were brought to prevent this, and for the appointment of a receiver for the corporation, but this suit was withdrawn, and the suit for the purpose of getting a receiver appointed was filed.

The board of directors met in their regular meeting on Monday. Neither Hess nor Knappenberger attended the meeting. Judge Wilson attended and reported on Hess and Knappenberger, and asked that they he removed from the board of directors, and the 'board adopted a resolution removing them.

Knappenberger then claimed that appellant owed him salary for the month of August. The corporation declined to pay this salary, and Knappenberger, for the consideration of $1, assigned his claim to Hess.

On August 14, 1931, the appellees, Hess and Knapp-enberger, filed suit in the Union Circuit Court against the appellant, Oil Fields Corporation, for $500 salary. The appellant, Oil Fields Corporation, filed answer denying the material allegations in the complaint, and alleged that Knappenberger was discharged for inefficiency ; denied that it was indebted to appellees or either of them in any sum, and denied that Hess had any authority to give Knappenberger a vacation on pay, and also alleged that, since the removal of Hess and Knappen-berger as directors, Hess had been filing fictitious suits against appellant, and that Hess took the assignment from Knappenberger with the full knowledge that appellant was not indebted to Knappenberger in any amount. The assignment showed a consideration of $1, but Hess testified that there were some matters between them; that they had not had a settlement yet. Judgment was asked in favor of Hess for $500 and costs. There was a jury trial and a verdict in favor of Hess for $500. The case is here on appeal.

Counsel have furnished the court with excellent briefs citing many authorities, but we do not deem it necessary to review or call attention to all these authorities.

Appellant, in support of its contention that a director cannot deal with a corporation, calls attention to several authorities. We think, however, the law is settled that a director may be employed and paid a salary to perform services for the corporation. He could not, of course, vote on the proposition himself, but, if the other directors, constituting a quorum, voted to employ him to perform certain services at a fixed salary, the contract would be valid, and, if be voted himself, it would not make the contract invalid, if a majority other than himself voted for the proposition.

“The rule obtaining in a majority of jurisdictions is that a director may deal or contract with the corporation where he acts in good faith and the corporation is represented by a quorum of disinterested directors or other independent officers or agents authorized to contract for it. Such a contract is not void per se nor is it voidable, except for unfairness or fraud, for which it will be closely scrutinized in equity. Similarly an officer may deal with the corporation if his acts are open and fair and known to the directors and stockholders; but all dealing between an officer of a corporation and the board of directors must be'scrutinized carefully, and to bind the stockholders must bear evidence of having been in the interests of the corporation.” 14a C. J. 118.

In the instant case the directors were employed as general counsel, general-manager and superintendent, etc., and there is nothing in the record to indicate that the director in each instance was not employed by a majority of the board other than himself. Their compensation was fixed, and the board had a right to make these contracts.

“A director or other fiduciary officer of a corporation presumptively serves without compensation. He is entitled to compensation for performing the usual and ordinary duties of his office when and only when there is a valid express agreement therefor; he cannot recover on an implied contract.” 14a C. J. 136.

Here all the evidence shows there was an express contract employing Knappenberger at a fixed salary, and nothing to indicate that Knappenberger himself took any part in voting for his employment, or in fixing his salary.

“An officer is without authority to fix or increase his own salary. Directors are precluded from fixing, increasing, or voting compensation to themselves for either past or future services by them as directors or officers, unless they are expressly authorized to do so by the charter or by the stockholders. The director who claims compensation for his services, being disqualified from voting on the question,- if he is necessary to make up a quorum of the board, or if his vote is necessary to the result, the resolution will be void. But where his vote is not necessary to the adoption of such a resolution, it will not necessarily be void, although he may have voted for it, or although he may have been present when the vote was taken.” 14a C. J. 143-144.

We think therefore, the general rule is that a director may be employed to perform services for the corporation, to act as general manager or superintendent or to perform other duties. His employment, however, must be voted for by a quorum of the directors other than himself.

There is evidence in this case that officers and employees were granted leave of absence or vacations with pay, and that this was known to and acquiesced in by the board of directors.

This court, in passing on the question of whether a reward offered by the general manager of a railroad company was binding on the company, said: “The proof showed that one who had acted for more than three years under the title and in the capacity of general manager of the road, with the knowledge of the president, had posted the reward. He had received the card offering the reward by express from the office of the vice-president in St. Louis, with instructions to post same. This was done at every station, and the president of the road passed over it as often as every ten days. * * *

“The company can only act through its representatives. The president of the company, as we have said, went over the road every ten days, and these rewards were posted at every station. This and other evidence, such as the fact that the reward came from the office of the vice-president, was entirely sufficient to show that the company had knowledge of the act of Kress in offering the reward.” Arkansas Southwestern Ry. Co. v. Dickinson, 78 Ark. 483, 95 S. W. 802.

It seems to be well settled that a director of a corporation may make a valid contract to perform services for the corporation, and.this contract may be made with the general manag’er if he is authorized, as he was in this case, to hire and discharge employees.

The next question is, can the corporation make a contract allowing the employee compensation for the time he is on a vacation or leave of absence

“Where an employee is given a vacation with pay, or a leave of absence is granted, or where the employee’s absence is involuntary, as where the employer fails to furnish work, the employee is entitled to his wages for the time off.” 39 C. J. 148; Thompson on Corporations, 3 Edition, vol. 3, 461, § 1869; Fletcher, Cyclopedia of Corporations, vol. 4, 424, § 2766; M. K. & T. Ry. Co. v. Bryant, (Tex. Civ. App.) 178 S. W. 685.

If the testimony of appellees is true, then the board of directors fixed the compensation of Knappenberger, and also authorized pay during leave of absence or vacation. As we have already said, this evidence is contradicted by the evidence offered by appellant, but it was a question of fact properly submitted to the jury, and its verdict on these matters is conclusive. There is no question in this ease of giving away the company’s money. Of course, the board would have no right to do this, but they may have thought they would get better service from an employee by giving him a vacation on pay than they would otherwise. Many corporations permit their em-nloyees to take vacations on pay, and doubtless believe that this secures better service, and is not giving away money of the corporation.

As we have already said, the law is well-established that a director may make a valid contract -with a corporation at a salary fixed by it. He cannot, of course, himself vote for his employment nor in fixing his salary. The law seems also tc be well settled that an employee may be granted a vacation on pay.

Whether the corporation did employ Knappenber-ger, and whether they agreed to give him a vacation on pay, were questions for the jury.

There was substantial evidence to support the verdict, and the judgment is affirmed.


author: McHaNey, J.

text:
    Smith v. New Hampshire Savings Bank.
    4-2658
    Opinion delivered October 10, 1932.

      Ingram & Moher, for appellant.

      G. W. Botts, for appellee.
   McHaNey, J.

Appellants, husband and wife, on-March 9,1927, executed their promissory note for $6,500, secured by a mortgage on 320 acres of rice land in Arkansas County, to the American Investment Company, who, for a valuable consideration, sold and assigned same to appellee. The principal note was made due and payable April 1, 1937. Attached to said note were ten interest coupons for $390 each, representing the annual interest on the principal note, and one became due on the first day of April each year until the principal note became due. Default was made in the payment of the interest coupon due April 1, 1930, and on March 12, 1931, appellee, under the power contained in both the note and mortgage, elected to and did declare the whole amount due and payable, there being an acceleration clause in both the note and mortgage. Thereafter ap-pellee brought this suit to foreclose the mortgage and prayed for judgment against appellants for the debt and interest, which then amounted to $7,035.02 together with interest from April 1, 1930, (the date default was made in payment of the coupons) at 10 per cent, per annum until paid. There is a clause in the coupon notes providing that interest might be charged.at 10 per cent, after maturity. A decree was rendered in conformity with the prayer of the complaint, fixing a lien upon the land and ordering same sold in satisfaction of the debt.

Appellants, although personally served with summons, did not appear in the lower court but wholly made default.

The only question raised on this appeal is that the court erred in rendering a decree for the debt with 10 per cent, interest from the accelerated maturity, April 1, 1930, and they rely upon the authority of Jewell Realty Co. v. Kansas City Life Ins. Co., 182 Ark. 397, 31 S. W. (2d) 521, where this court had occasion to pass on a similar question. We think appellants are not in position to question the validity of the decree against them for several reasons/one of which will be sufficient. The record shows that appellants have recognized the validity of the decree. While they did not appear in the trial of the cause, filed no pleading and made no objection in the lower court to the decree in any manner, they did, at a later date, appear and ask the court to postpone the date of sale, which the court did, appellee consenting thereto. Thereafter appellants came into court and petitioned the court to appoint a receiver to take charge of said lands and rent same for the year 1932. This order was made, appellee consenting, the sale being postponed until December 1, 1932, and appellants agreed to cultivate 129 acres of the lands in rice and to pay appellee one-fifth of said crops as rents. These were inconsistent positions with the right now asserted for appellants to assume, and as said in Jones v. Hall, 136 Ark. 353, 206 S. W. 671: “He waives Ms right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal.” By asking for and obtaining a postponement of the sale and by asking for the appointment of a receiver to rent the land and actually renting a portion of it for the year 1932, without raising any question in the lower court as to the validity of the decree or the amount of the judgment against them, they are precluded' from raising the question in this court for the first time.

Affirmed.


text:
    Holmes v. Holmes.
    4-2669
    Opinion delivered October 10, 1932.

      Fred A. Isgrig and Harry Robinson, for appellant.

      Owens & Fhrmcm, for appellee.
   McHaNey, J.

On February 12, 1927, appellant secured a decree of divorce from appellee. That part of the decree relating to the settlement of the property rights and the alimony reads as follows: “And it further appearing to the court that there were no children born of said union, and that the parties hereto have agreed upon a settlement of the property rights, it is ordered under said agreement that the defendant herein pay to the plaintiff herein by way of alimony the sum of one hundred fifty dollars ($150) at this time and one hundred fifty dollars ($150) on the first day of each and every month hereafter. # # * The court doth retain control of this cause for such further orders and proceedings as may he necessary to enforce the rights of the parties hereto.”

In 1931 appellee filed a petition in the chancery court to modify the above-mentioned decree by striking therefrom the provision relative to the payment of alimony, and that the court determine the amount of delinquent alimony which had accrued and extend the time for paying same upon such terms as the court might deem just and proper under the circumstances. The petition for this purpose was based on the ground that his income as a physician and surgeon had been greatly reduced both on account of his physical condition and the depressed business conditions generally prevailing throughout the country. A hearing was had on this petition on March 14, 1932, and the court made an order finding that appellee was delinquent in alimony installments as provided in the original decree in the sum of $4,650, and that he thereafter pay appellant $60 per month beginning March 15, and a like sum on or before the fifteenth of each succeeding’ month until the total amount found to be delinquent had been paid. It was further provided that, if he failed to pay as therein provided, the amount to be paid should be increased $60, but if he pay in the manner provided at the time when due, same should constitute full and complete settlement of the claims for alimony provided in the original decree. The order further provided that the original decree should be set aside in so far as future alimony is concerned, save and except that, if he fails to make the payments as therein provided, then the sum shall be increased $60 per month.

From this decree modifying the original decree as above stated this appeal is prosecuted.

The principal ground urged for a reversal of the judgment is that the court did not have the power to set aside a former decree based on an agreement of the parties. Appellant relies npon the cases of Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, and Erwin v. Erwin, 179 Ark. 192, 14 S. W. (2d) 1100, and cases therein cited to support this contention. We cannot agree with appellant that the cases relied npon go to the extent now contended for. It must be remembered that the statute (§ 3510, Crawford & Moses’ Digest) provides: “The court, upon application of either party, may make such alterations from time to time as to the allowance of alimony and maintenance, as may be proper, and may order any reasonable sum to be paid for the support of the wife during the pending of her bill for divorce.” It has been held by this court that an allowance of alimony is subject to modification by the court to meet changed conditions. Kurtz v. Kurtz, 38 Ark. 119; Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700; McConnell v. McConnell, 98 Ark. 193, 136 S. W. 931. It is true in the Pryor case the court held that, where, in contemplation of divorce, the husband and wife entered into a contract by which he agreed to pay her certain sums of money at stated times and they caused this contract to be made a part of the decree for divorce, the decree cannot subsequently be modified in so far as it is based on the contract. But even then the court said that, if the court should subsequently find the allowance excessive, it might decline to permit its extraordinary process to be used to collect more than a just and reasonable allowance for alimony. In that case the. agreement was incorporated in the decree by the voluntary consent of the parties, and the court in construing the above statute said: “Does the fact that the allowance is based on an agreement entered into between the parties hamper the power of the court to subsequently alter it? We think not, so far as the dependence of the allowance on the decree of the court is concerned. The statute gives the court the power to alter any of its decrees allowing alimony. The court is not, in the first instance, bound by the agreement of the Dailies concerning the amount of alimony to be allowed to the wife (2 Nelson on Divorce and Separation, § 915, Calame v. Calame, 25 N. J. Eq. 548); and, a fortiori, the agreement cannot, in the face of the statute, hinder the court in altering its own decree of allowance. The decree is not entirely dependent upon the agreement, and therefore the power to subsequently alter cannot be controlled by it. Parsons v. Parsons, (Ky.) 80 S. W. 1187. The agreement of these parties was not merely one as to the amount the court by. its decree should fix as alimony, but it was manifestly intended to be an independent agreement, in contemplation of divorce, for the payment of alimony.”

The language of the decree in this case is “that the parties hereto have agreed upon a settlement of the property rights, it is ordered, under said agreement, that the defendant herein pay to the plaintiff herein,” etc. It will be seen therefore that the agreement of the parties was “merely one as to the amount the court by its decree should fix as alimony,” and was not intended as an independent agreement for the payment of alimony. So in Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1, this court again said: “Section 2683 of Kirby’s Digest (now § 3510, Crawford & Moses’ Digest) provides that upon the application of either party, the court may make such alterations from time to time as to the allowance of alimony and maintenance as may be proper. Under this clause of our statute, the court has the power to alter the allowance of alimony at any time when the changed conditions of the parties justify such action. Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700.” The decision in the other case relied upon, Erwin v. Erwin, 179 Ark. 192, 14 S. W. (2d) 1100, is distinguishable from this case in the same way.

It is suggested that the testimony of the appellee as to his present condition was not sufficient to justify the court in setting aside the order for alimony, and that there is no assurance that he will carry out the last order. We think the evidence was sufficient to support the chancellor’s finding, and that the matter of carrying out the last decree, the one appealed from, rests in the power of the court to compel performance by the extraordinary remedies provided by law, and it is not such a debt as may be avoided by proceeding in bankruptcy as debts for alimony due or to become due are not dischargeable under the bankruptcy act. TJSCA, title 11, § 35. We find no error, and the decree is accordingly affirmed.