author: Mehaffy, J.

text:
    Bieard v. State.
    Crim. 3881
    Opinion delivered May 7, 1934.

      Toon Harper and John P. Roberts, for appellant.

      Hal L. Noo'OMood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Mehaffy, J.

Appellant was indicted by tbe grand jury of Sebastian County for tbe crime of murder in tbe first degree, for tbe killing of Elmer Best. Upon a trial of the case in tbe circuit court, he was found guilty of murder in tbe second degree, and bis punishment fixed at 12 years in tbe penitentiary. To reverse tbis judgment of conviction, tbis appeal is prosecuted.

The evidence is in conflict, but there is no contention that tbe evidence was not sufficient to justify tbe jury in returning a verdict of guilty. It would therefore serve no useful purpose to set out the evidence as to tbe manner of tbe killing. Tbe killing was admitted.

Tbe appellant contends for a reversal of the judgment, first, because be alleges that the court erred in giving instruction No. 8, given at the request of tbe State. Instruction No. 8 reads as follows:

“If you find from tbe evidence in tbis case, beyond a reasonable doubt, that at any time from tbe beginning of a difficulty between tbe defendant and deceased on tbe square at Greenwood in which tbe deceased was shot and killed by tbe defendant, if you find there was such a difficulty, that tbe defendant could have reasonably withdrawn from or avoided tbe difficulty with safety to himself, but failed to do so, be could not justify the killing on tbe ground of self-defense. ’ ’

It is urged by appellant that there was no testimony introduced to show that the defendant was tbe aggressor in tbe difficulty in which deceased was killed. To support his contention be cites several cases, but we do not think these cases are in point.

An instruction similar to instruction No. 8 was given in the case of Crews v. State, 179 Ark. 94, 14 S. W. (2d) 261. Tbe court in that case gave the following instruction: “You are instructed that, although you may believe that the defendant, Jim Crews, fired the first shot in necessary self-defense, still, if you believe that the second shot was fired at a time when the defendant, as a reasonably prudent person, acting on the facts and cirT eumstances, wdthout fault or carelessness on his part, did not honestly believe that it was reasonably necessary to further defend himself, then the defendant would he guilty of murder in the first degree, or murder in the second degree, or manslaughter, provided you believe that the second shot contributed in any manner to the death of the deceased.”

In other words, no matter who the aggressor may be, if the time comes in the difficulty when the slayer could reasonably withdraw, with safety to himself, he cannot thereafter kill his antagonist and claim self-defense. Every one has a right to repel force with force, but he does not have the right to. use more force than is necessary. Therefore the court correctly told the jury that, if the defendant could have reasonably withdrawn from or avoided the difficulty with safety to himself, but failed to do so, he could not justify the killing on the ground of self-defense.

In one of the oases cited and relied on by appellant, the court said: “He was not bound to retreat if deceased first assaulted him, with an intent to murder, but might have stood his ground, and, if need be, killed his assailant. ’ ’ LaRue v. State, 64 Ark. 144, 41 S. W. 53.

You will observe that the court stated he could kill his assailant if need be, if it were necessary in his self-defense. But, no matter who the aggressor is, one cannot justify a killing if he could have reasonably withdrawn with safety to himself. One assaulted is not required to retreat unless he can do so with safety to himself, but, if he can withdraw with safety, and refuses to do so, but kills his antagonist, he cannot justify the killing on the ground of self-defense.

Appellant next contends that the court erred in permitting the State to prove the general reputation of appellant three or four years prior to the difficulty. This court has said: “For the purpose of testing the credibility of appellant, who testified in the case, the prosecuting attorney had a right to cross-examine him concerning his past conduct and immoralities.” Curtis v. State, 188 Ark. 36, 64 S. W. (2d) 86.

This court said: “Appellant was asked all sorts of questions about having been a gambler and about other offenses and immoralities. This was merely for the purpose of testing his credibility and was admissible as such. This court so decided in the case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41. This was with regard to a witness other than the accused himself, but we have since then frequently held that the same rule applies to a defendant in a criminal prosecution when he takes the witness stand in his own behalf. ’ ’ Shinn v. State, 150 Ark. 215, 234 S. W. 636.

It is next contended that the court erred in not setting aside the verdict of the jury because of misconduct of the jurymen. The appellant contends that some of the jurors at different times left the jury room and went to the toilet or rest room, and that some citizen was in the rest room at the same time.

Section 3187 of Crawford & Moses’ Digest provides: “The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in the charge of proper officials.”

Section 3190 of Crawford & Moses’ Digest provides: “After the cause is submitted to the jury they must be kept together in the charge of the sheriff, in the room provided for them, except during their meals and periods for sleep, unless they be permitted to separate by order of the court.”

The record is silent as to whether the court made any order, but we said in a recent case: “Where the court permits the jurors to separate, or where there has been no order keeping them together, the burden rests upon the complaining party to show that prejudice resulted. There is no evidence in the record tending to show that anything was done by the juror or any one else while he was absent from his fellow jurors that resulted in any prejudice to the appellant.” Wallace v. State, 180 Ark. 627, 22 S. W. (2d) 395.

There is nothing in the record in the instant case tending to show that any prejudice resulted or that anything wrong was done by any of the jurors.

The appellant does not abstract the instructions, but we have carefully examined them, and find no error either in giving or refusing to give the instructions. We find no error in the record, and the judgment of the circuit court is affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Scrape v. State.
    Crim. 3883
    Opinion delivered May 7, 1934.

      Coulter \S Coulter, for appellant.

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

Appellant was convicted of the crime of robbery of a filling station in Little Rock on November 9,1933, and sentenced to five years in the penitentiary. The deputy prosecuting attorney, in his opening statement to the jury, said: <£I think the testimony will show that this was one of a series of robberies in which this boy was engaged.” An objection was made to this statement, which was overruled by the court. During the trial, L. R. Biggs, a witness for the State, and the operator of another filling station in Little Rock, was permitted to testify, over appellant’s objections, that appellant and two others attempted to rob him on November 10, 1933, the day following the date of the robbery for which he was on trial, and that appellant later admitted to him that he was one of the three boys that attempted to hold him np. In this connection, the court gave to the jury, over appellant’s objections and exceptions, instruction No. 5, which reads as follows: “The defendant is being tried alone for the crime of robbery. The State has attempted to show by testimony that this defendant engaged in an attempted crime of robbery on the night following the date of the crime for which he is now being tried is alleged to have been committed. If you should believe from the evidence that the defendant did attempt to commit robbery on the night following the alleged crime for which he is being tried, it might be considered by you as showing, if it does so show, a scheme and a design on the part of the defendant in the commission of crime, and for no other purpose; and, even though you should believe him guilty of attempted robbery committed on the day following the day of the robbery for which he is now being tried, yet that would not be sufficient to warrant his conviction on the charge for which he is now being tried unless you believe he was guilty on this particular charge beyond every reasonable doubt.” These matters are urged here for a reversal of the judgment of conviction.

A number of decisions of this court are cited to the effect that evidence of other crimes is not admissible to prove guilt of the particular crime for which the accused is on trial, for the reason that the State cannot resort to proof of his bad character as a circumstance from which guilt may be inferred. On the other hand, we have many times held that evidence of similar crimes closely connected with the crime charged, is admissible, not only to show knowledge or intent, but to show a system, plan or scheme of conduct on the part of the accused. Many such cases might be cited. They are collected in Crawford’s Digest under Criminal Law, § 92. Two of the recent cases on the subject are Wilson v. State, 184 Ark. 119, 41 S. W. (2d) 764, and Sibeck v. State, 386 Ark. 194, 53 S. W. (2d) 5.

"We are therefore of the opinion that the testimony of the witness, Biggs, was properly admitted and properly limited in instruction No. 5, above set out. It follows that the judgment must be affirmed, as these are the only assignments of error relied upon.


author: Butler, J.

text:
    Missouri State Life Insurance Company v. Case.
    4-3458
    Opinion delivered May 7, 1934.

      Allen May, J. R. Burcham, Dene H. Coleman, Charles Frierson, Jr., and Chas. D. Frierson, for appellants.

      Ernest Neill and Shields M. Goodwin, for appellee.
   Butler, J.

On November 12,1920, tbe Missouri State Life Insurance Company issued its policy in favor of Dr. William Byers Case, under tbe terms of which, in consideration of the payment in advance of the sum of $200.25 and the further payment of like sums on or before the 12th day of November of each year thereafter, his life was insured in an amount of $5,000. The policy provided for total and permanent disability benefits in the sum of $50 per month, in consideration of which the insured paid, on the dates aforesaid, an annual premium of $16.45. The annual premiums were paid each year up to and including the policy year ending November 12, 1929. Notice of the maturity of this premium was given Dr. Case, and at the expiration of the thirty-day grace period, a letter was addressed to and received by him, advising that the policy was forfeited and at an end for the nonpayment of the premium falling due on the last-mentioned date. He was also advised of his right to reinstatement of the policy upon the performance of certain conditions. Dr. Case did not answer these letters.

In February, 1932, Dr. Case was committed to the State Insane Asylum, and on August 25, 1932, the attorney for the appellee notified the insurance company that the insured had been totally and permanently disabled from permanent insanity; that he had been so disabled since sometime in the summer of 1929, and was at that time a patient in the State Hospital for Nervous Diseases in the city of Little Eock. Demand was made for the payment of disability 'benefits at the rate of $50 per month and a request that the company furnish forms on which proof could be made. On September 6, 1932, the company, answering the notice and claim, advised that the policy had lapsed for the nonpayment of premium and interest due November 12, 1929. Shortly after this Dr. Case died in the State Hospital. Notice of his death was immediately given the company with demand for the payment of the death claim. In due time this claim was also declined by the company for the same reason assigned in its answer to the demand for monthly benefits made during the lifetime of the insured.

On the 13th of March, 1933, Miss Eobert Ella Case brought suit as administratrix of the estate of Dr. Case to recover disability benefits at the rate of $50 per month from May 1, 1929, to October 18,1932, the date of Dr. Case’s death, less the amount of a certain policy loan of $955 and interest due thereon, on the allegation that, while the policy was in full force and effect, the insured was, from May 1, 1929, until the date, of his death, totally and permanently disabled by reason of permanent insanity, to the extent of preventing him from engaging in any gainful occupation. It was also alleged that, because of the permanent insanity, no notice of the disability was given the company.

The General American Life Insurance Company, having assumed the liabilities of the Missouri State Life Insurance Company, was made a party defendant. The latter company filed its separate answer, admitting that it would be bound if a judgment was rendered against the Missouri State Life Insurance Company, which company answered denying the material allegations of the complaint except that all premiums had been paid on the policy to November 12, 1929, which it admitted, and defended, on the affirmative ground that the policy had lapsed for the nonpayment of the premium due November 12, 1929, and certain other affirmative defenses.

The case was tried and the jury found that Dr. Case was totally and permanently disabled from permanent insanity from July 1, 1929, to October 18, 1932, and returned a verdict in favor of the plaintiff in the sum of $872.04, the amount of the monthly benefits accruing between those dates, less the policy loan and interest. From that judgment is this appeal.

Here, as in the court below, the appellant insists there can be no recovery because of insufficient proof to show permanent and total disability at a time prior to the maturity of the premium due in 1929. It may be first stated that the insured, at the time of his death, was 61 years of age and had been for many years a popular and successful country practitioner, that being the only profession or vocation in which he had ever engaged except in 1920 when he abandoned it for a few months and attempted to write life, insurance. He soon gave this up, however, and returned to his practice of medicine. He appeared to be fairly happy and successful, except for a short period in 1920, up and until 1927. From that time on it seems he began to slip. Early in his practice he was located in Cleburne County where he was popular and had a considerable practice. In the early spring of 1919 he returned to that county, and it is from that time until his commitment to the State Hospital with which the testimony has principally to deal relative to his mental condition.

The appellant calls attention to the testimony to the effect that during that period Dr. Case discussed with some of the witnesses current subjects with apparent intelligence; that he spoke of his insurance and said that he was fearful it would lapse because of his inability to meet the premiums; that he discussed with some of them his method of bookkeeping and his success in making collections for the practice he had done. Also that he made calls on patients and some witness who had called the doctor in his professional capacity testified that his services were satisfactory. This evidence, it is argued, was sufficient to show that Dr. Case was not incapacitated for any reason, or prevented from following his usual occupation, and therefore was not totally and permanently disabled to the extent that he could not pursue any gainful' occupation as provided for in the policy.

In construing provisions in policies relating to total and permanent disability sufficient to prevent the insured from engaging in any gainful occupation, the rule has been often stated to the effect that we do not give to these provisions a strict and literal interpretation, on the theory that a fair intention of the parties to the contract of insurance is that the insured shall receive indemnity when he is disabled to the extent that he is unable to carry on any business which, without the disability, he would be able to do or capable of engaging in. Therefore, to come within the meaning of the contract of indemnity, it is not required that the insured shall be absolutely helpless, but he is totally disabled when the infirmity from which he suffers renders him unable to perform all the substantial and material acts of his business or the execution of those acts in the usual and customary way. Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S. W. (2d) 433, and cases there cited.

When we consider the testimony to which reference has been made in connection with all of the testimony in the case, we think the evidence preponderates in favor of, and sustains, the finding of the jury. Several of Dr. Case’s old friends, on his return to Cleburne County where he had formerly resided and practiced his profession, were scarcely able to recognize him because he was so changed. Formerly he had been a man careful of Ms personal appearance, amiable and loving the society of his fellows. Now he was unkempt, morose and retiring. He was unable to recall incidents of his young manhood which were likely to stand out in his memory. Those who called him in professionally, remembering his former skill, were greatly disappointed; he seemed to be uncertain what to do and neglectful of his patients. This was his condition as far back as April, 1929, and there is evidence to the effect that it continued throughout that year into 1930, when he became so helpless that his sister, Miss Case, took him to the home of his brother Ed Case, a farmer living near Heber Springs, where he was cared for, Miss Case paying her brother a reasonable amount for his care. Dr. Case remained there until he was committed to the State Hospital totally insane, where he remained in that condition until he died a few months after his admission. It was in testimony that he was suffering from a physical ailment which affected his brain, and in the opinion of the superintendent of the hospital this condition had lasted for several years. It is true that other expert witnesses testified that in their opinion Dr. Case was not insane in 1929, but, as we have stated, there is substantial evidence to sustain the finding of the jury.

The principal contention, however, is that urged in the second section of appellants’ brief that the proof of disability constituted a condition precedent to liability, and the failure to give such proof before the lapse of the. policy would prevent a recovery. To sustain this contention, appellants rely chiefly on the case of Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 52 S. Ct. 230, conceded by them to be out of harmony with our decisions in the cases of Pfeiffer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847; Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366; and Mo. State Life Ins. Co. v. Holt, 186 Ark. 672, 55 S. W. (2d) 788. But the argument is made that our later cases seem to modify the rule announced in the cases above cited and evidence a feeling of this court “to get back into the line of authority following the Bergholm decision in the Supreme Court of the United States. ’ ’ The cases thought to be a modification of our previous decisions are: Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912; Atlas Life Ins. Co. v. Wells, 187 Ark. 979, 6.3 S. W. (2d) 533; N. Y. Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S. W. (2d) 520; Business Men’s Assur. Co. v. Selvidge, 187 Ark. 1040, 63 S. W. (2d) 640; N. Y. Life Ins. Co. v. Jackson, 188 Ark. 292, 65 S. W. (2d) 904; Pac. Mutual Life Ins. Co. v. Dupins, 188 Ark. 450, 66 S. W. (2d) 284; Home Indemnity Co. v. Banfield Bros. Packing Co., 188 Ark. 683, 67 S. W. (2d) 203; Mass. Protective Ass’n v. Jurney, 188 Ark. 821, 68 S. W. (2d) 455.

We are asked to read, these cases, especially to refresh our memory by reading the opinion in the Farrell case, which, it is claimed, puts our court directly in line with the Bergholm case. We have re-examined these eases and fail to find anything which modifies or impairs the case of Pfeiffer v. Mo. State Life Ins. Co., supra, or the cases following and approving that decision; nor, indeed, in our opinion, is the Bergholm case in conflict with the doctrine of those cases for the reason, as stated in the case of Mo. State Life Ins. Co. v. Foster, 188 Ark. 1116, 69 S. W. (2d) 869: “In the case referred to (the Bergholm case) by plain and definite language the payment of premiums up to the filing of proof of disability was made a condition precedent to the right of recovery.” Such was not the provision relative to proof of disability in the Pfeiffer, Julian and Holt cases, supra. Nor, as pointed out by the appellee, was there any question of the insanity of the insured involved in the Bergholm case.

In Ætna Life Ins. Co. v. Davis, supra, the court, when considering- the contention that the failure of the insured to make proof to the insurer as required by the policy ninety days prior to the expiration of the policy defeats recovery, had before it the language of the contract. In that connection we said: “In order to sustain the contention of the appellant, something must be read into the policy which the appellant company failed to incorporate therein. The only restriction we find in the contract is that no recovery can be had for a period of time greater than six months previous to the date the proof of disability is made and received by the company where it is not made and received within ninety days after the disability has commenced. There is no mode specified by which the proof of loss is required to be made or how it is to be transmitted to the insurer.' From a fair consideration of the contract, the right to recover must be based on the total and permanent disability occurring during the life of the contract and not on any particular time when proof is made and received.” The point decided was that the failure to make the proof ninety days prior to the expiration of the policy did not defeat the right to recover for the reason that the proof was intended to give the insurer an opportunity to investigate the facts affecting the question of liability and the extent thereof, and that the end is served when the complaint is filed where no claim is made for benefits accruing before the filing of the complaint, or any claim made for penalty or attorney’s fee.

In Atlas Life Ins. Co. v. Wells and New York Life Ins. Co. v. Farrell, supra, suits were brought, not for breach of contract, but were based upon it. In the Farrell case the provision was: “Whenever the company receives due proof before default in the payment of premiums that the insured * * * has become wholly disabled by bodily injury or disease, etc. * * and then provided “that beginning with the anniversary of the policy next succeeding the receipt of such proof, the company will waive payment of the premiums, and one year after the receipt of the proof the company will pay the insured a sum equal to one-tenth of the face of the policy and a like sum annually thereafter during the life and continuing disability of the insured. ’ ’ These provisions were wholly unlike those involved in the eases which it is thought are modified by the Farrell case, and it will be noted, as stated 'by the court that the case being considered “is not a suit for breach of contract, but a suit on the policy, and the policy expressly provides when payment shall begin,”

An examination of the case of Business Men’s Acc. Ins. Co. v. Selvidge, supra, where it was held that the failure to give notice as provided in the policy barred recovery, shows that it was because by the express terms of the contract the giving of notice was made a condition precedent to the right of recovery.

In the Jackson ease, supra, it was alleged and proved that the insured became totally disabled in 1926 when the policy was in full force and effect; that the policy was extended until May, 1928, when it expired. Jackson died four years later and after his death suit was instituted. The court found that the permanent disability clause in the policy was identical with that in the Farrell case and controlled by that case.

In none of these cases, however, was the sanity of the insured brought in question, whereas in the case at bar the jury found on sufficient proof that the insured was totally and permanently disabled on account of insanity during the life of the policy. This finding, under the rule announced in Pfeiffer v. Mo. State Life Ins. Co., supra, obviated the necessity of making proof by the insured. The court there said: “If the insured has become permanently insane at the time that permanent disability attaches, it is evident that he is in no condition of mind to give the notice or make proof of his disability. * * * It should be said that permanent insanity, which causes, in whole or in part, permanent disability should operate to excuse the insured from giving the required notice. The very object and purpose of the policy, in a large part, would be defeated where the company inserted in the policy a condition which it knew that the insured could not perform in person and would not be in a state of mind to obtain its performance at the hands of others. There is nothing in the terms of the policy from which it might be said that it was the duty of the beneficiary to give the notice.”

In Old Colony Ins. Co. v. Julian, supra, the doctrine announced in the Pfeiffer case was reaffirmed and also in the later case of Mo. State Life Ins. Co. v. Holt, supra. In the Pfeiffer case the clause of the policy with respect to. giving notice of permanent disability was identical with the language of the policy in the case at bar. It was there held that the clause relating to notice was a condition subsequent and should be construed liberally in favor of the beneficiary.

In connection with the contention that the failure by the insured to make proof barred recovery, it was argued that, that not having been done by him, it.became the duty of the beneficiary under the facts in this case to give notice and make proof of the existence of the disability, and that her neglect in this regard precludes recovery. It is insisted that she knew, or ought to have known, of the mental derangement of her brother, Dr. Case, in 1929, or at least in 1930, and that the evidence makes it plain that she had ample opportunity to, ascertain his condition. It is argued that she was favored by him beyond his other kinsmen, and that the ties between them were particularly close. She was named the beneficiary in the policy, and doubtless Dr. Case rightfully preferred her to the other members of his family for the evidence is clear that she was the burden bearer of them all. It is also apparent, however, that she saw her brother infrequently and was never associated with him a sufficient length of time to arrive at a just conclusion as to his mental state. She knew he had had family troubles and business reversals; she knew that he was frequently discouraged, but there were no facts under her observation which might be rightfully said to be sufficient for her to know that he was insane. It is also contended that she knew all along that the policy carried disability benefits and that she had, herself, stated that she had been familiar with the policy for a good many years. We are referred to the pages of the transcript wherein it is claimed this evidence is to be found, but we fail to find any evidence to show that she was familiar with the terms of the policy or that she knew that it contained the disability clause and had knowledge of the provision regarding the. notice and proof of disability. The most that can be said is that she knew that her brother carried a policy of life insurance; that she knew that she was the beneficiary in such policy, for on occasions she was called on to join with her brother in the execution of notes to procure loans. But this was a matter to which she gave but little, attention. It is fairly inferable that the loans were to continue the policy in force and that she received none of the proceeds of such, although there is no definite evidence to this effect. She paid so little attention that she had entirely forgotten about the execution of one of these notes until it was called to her attention during the progress of the. trial of the case. The first time she became aware of the deterioration of her brother was when she carried him to the home of Ed Case, and then she was not aware of the cause of his condition. About that time she asked Dr. Case about his life insurance, and he told her that the policy had lapsed.

The evidence leads to the reasonable conclusion that Miss Case did not know that her brother was insane until a short time before he was committed to the asylum. Just when she came into possession of the policy is not shown, but it is likely that it was about that time, and it was then she- had the first intimation of what the rights of her brother might be under the policy. She wrote a letter in her brother’s name asking when the last premium had been due and .how the policy might be. reinstated. She is criticized because, in this and in subsequent letters to the insurance company, she did not inform it of the insanity of her brother. Whatever her reasons might have been for not conveying this information, it could certainly work no prejudice to the insurer, for it had renounced the policy long before.

Attention is also called to the fact that Miss Case did not offer to reinstate and did not reply to the appellant’s letters regarding reinstatement. There was no reason for her taking any action in this regard, for the requirement for reinstatement was that the insured must be in good health, and, of course, she knew that her efforts to reinstate would be futile.. As soon as she became aware of a possibility of liability to her brother for disability benefits, she began to investigate as to his mental condition during 1929 and 1930. Based upon this investigation a letter was written by her attorney notifying the insurer of the insanity of Dr. Case and making demand of payment of disability benefits. It seems to us, assuming’, but not deciding, that it was her duty as beneficiary to give notice of the disability, this duty could only arise when she became aware that the insured was not in a mental condition to give notice himself or to make the proofs, and then not until she had had a reasonable opportunity to inform herself in regard to the facts on which claim of disability would be made.

In the third section of appellant’s brief it is contended that the plaintiff and the insurance company interpreted the contract as having lapsed, and that this interpretation is binding’ upon’ the plaintiff and prevents recovery. Of course, if Dr. Case was insane, he was in no condition to interpret the contract, and his interpretation that it had lapsed was not binding on him or any one else. Miss Case knew what her brother had told her as to the lapse of the policy, but at that time she. was not aware of his mental condition, nor of the terms of the policy. We see nothing in the letters written by Miss Case to the insurer that would be a basis for the contention that she had interpreted the policy as contended for by the insurer, or that she acquiesced in its interpretation. There can be no doubt that, if Dr. Case had been possessed of sufficient mentality to realize the extent of his disability, he would have made proof, but it is not often that an insane man realizes he is such, and surely in this case, had Miss Case known of the provisions of the policy and been aware of the rights of her brother thereunder, she, too, would have given notice.

The fourth contention is that the court erred in construing the policy as having been extended thirty-one days after November 12, 1929, and in so instructing the jury. No prejudice resulted for the reason that the court, in subsequent instructions, told the jury that before returning a verdict for the plaintiff, it must find that Dr. Case was totally disabled from permanent insanity at all times after October 1, 1929.

The fifth ground for reversal is that the amount of recovery was excessive. To support this contention we are again referred to the cases of this court thought to modify the rule relating to proofs of loss not being conditions precedent to attachment of liability. As we have observed, the Farrell and Wells cases were suits based on contracts, whereas in the case at bar there was a repudiation of the contract by the insurer — first, by a letter written to Dr. Case and later reaffirmed in a letter to the attorney for the appellee. Therefore, the rule in Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, controls, in which a contention like that in the instant case was rejected, the court saying: “Appellant next contends for a reversal of the judgment because nothing was due appellee under the terms of the permanent total disability clause when this suit was commenced, claiming that liability under the clause did not begin until six months after the final proof of the injury and disability was made. In other words, that, liability did not begin when the injury and consequent disability occurred. The correct construction of the clause is that liability began with the disability. As stated above, and for the reasons given, the purpose of the policy was to compensate the insured during the period of permanent and total disability.”

The case of Smith v. Mutual Life Ins. Co., 188 Ark. 1111, 69 S. W. (2d) 874, in no wise alters the doctrine of Ætna Life Ins. Co. v. Phifer, supra. In that case the court held that the furnishing of proof of disability is not a prerequisite to the maintenance of suit for recovery, that right only being postponed until proof is furnished.

There is another reason why the contention of the appellant that the Bergholm case and recent cases of this court that a recovery under the provisions of the policy involved is limited to the payment of $50 six months after the proofs are received, and $50 each month thereafter during the life of the insured, etc., is not sound. That is not the language of the policy, nor is the language susceptible only of that construction. It is unlike the provision in Smith v. Mutual Life Ins. Co., supra, that the “first monthly payments being due on receipt of said due proof.” The provision there explicitly states not only when the company should commence the payments, but also the amount that would be first due which was a monthly payment. The disability clause in the case at bar provides that “the company will pay to the insured a life income of $10 each month * * *. The first payment of such income shall be made six months after receipt by the company of due proof of total and permanent disability.”

This court has often held that, unless it is inescapable from the language of the policy that notice of disability and proof thereof are conditions precedent to recovery, it is the existence of disability that fixes liability and not the proof thereof. The liability then, under the finding of the jury, began on July 1, 1929, and continued until the date of the death of the insured, October 18, 1932. Therefore, the income would be the total of the monthly payments, the right to recover which (had the insured not been insane) would be deferred until six months after the receipt of proof by the insurer. Smith v. Mutual Life Ins. Co., supra.

The assignment of error argued in the sixth section of appellant’s brief is that the court erred in directing the jury to deduct from the amount of its finding the loan of $955 with interest. If this was error, it was one of which the appellant cannot complain for the effect of it was to give to the plaintiff less than the amount to which she was entitled.

The seventh section of appellant’s brief is a contention-that the court erred in its rulings on the admissibility of evidence: first, in permitting the plaintiff to go into detail concerning the financial circumstances of the family and her expenditures in aiding Dr. Case; in permitting her to speak of the old age and feeble health of her mother and to recite certain calamities which had happened to the family. It must be remembered that appellants urged the contention that plaintiff had been negligent in asserting the rights of her brother, and this testimony was brought out to in part excuse her delay. It was shown that just about the time she discovered her brother’s insanity, another sister had died, and Miss Case was forced to take charge, of her little children and care for them; that her mother was old and infirm and demanded her care; that her brother, Ed, died of pneumonia about the time that Dr. Case was removed to the asylum, and that her sister, a returned missionary, was dying of cancer in a hospital at Nashville. It is small wonder, under these circumstances, that Miss Case did not neglect many things of vital importance, and certainly these facts were admissible to excuse in part her seeming neglect. It is argued that the court erred in permitting Miss Case to state that she did not realize the mental and physical condition of her afflicted brother prior to August, 1930, but that, looking back, she realized that he was mentally incapable of practicing medicine in 1929, and that he was insane. She had stated the facts upon which this opinion was grounded, and, though she was not an expert witness, having given the facts upon which her opinion was based, that opinion was not incompetent.

Judge Reed testified that he considered Dr. Case practically an idiot. He referred to a time in the early part of 1929. This testimony is argued to be incompetent as Judge Reed was not an expert witness, but, as in the case of plaintiff, his opinion was founded on facts and circumstances which he narrated to the jury. This is applicable also to the testimony of witness Ellison, complained of, to the effect that, if he had had occasion to use a doctor, he would not have called on Dr. Case.

Error is also assigned to the refusal of the court to permit Dr. 'Brown to state on cross-examination whether or not, in his opinion, Dr. Case was mentally incapable of knowing that his insurance premium was due; also to the refusal of the court to permit defendant to elicit from Dr. Ponder the same information sought to be proved by Dr. Brown on cross-examination; also the refusal to permit the physicians to answer a question as to whether or not Dr. Case had mental capacity sufficient to realize that his premium was due and his policy would be forfeited unless he gave proof of disability. The question before the jury was whether Dr. Case was totally and permanently disabled from insanity within the meaning of the policy, and it would be immaterial whether or not he was able to perform occasional acts relative to his business or to have an understanding of some of the matters relating thereto if his condition -was such that he was unable to perform the duties of his profession, or those of any other vocation for which he might be fitted, in the usual and customary way. This testimony also was irrelevant for the reason pointed out in the case of Pfeiffer v. Missouri State Life Ins. Co., supra, where the court said: “It seems that the lay-witnesses for appellees thought that Pfeiffer was sane at times because he was able to talk rationally about the matters which were presented to his mind. This was not sufficient. He must have been able to carry on the. ordinary affairs of life, and this meant that his mind must be capable of sustained effort so that he would comprehend such affairs as needed his attention, and not merely that he might talk with seeming intelligence upon a subject brought directly to his attention by some one.”

Certainly, from the evidence, it is inescapable that, whereas Dr. Case might have had sufficient mentality, when his attention was called to it, to know that he had not paid his insurance premium, and that this would lapse the policy, his mind was not capable of sustained effort or such that he could comprehend his own condition or the effect of the provisions of his policy, and give that attention to them which would be expected of an ordinarily sane person.

Finally, it is insisted in the eighth section of appellant’s brief that the court erred in the giving of certain instructions and in overruling certain others requested. We do not set out or comment upon these at length for the reason that the instructions given embodied the views we have expressed, and those requested were in conflict therewith.

On the whole ease, Ave find no prejudicial error. The judgment of the trial court is correct, and it is therefore affirmed.


author: Smith, J.

text:
    Denison v. Denison.
    4-3436
    Opinion delivered May 14, 1934.

      Chas. F. Cole and Jones <$ Wharton, for appellant.

      Coleman Reeder, for appellee.
   Smith, J.

Appellee filed suit for divorce against his wife in the Independence Chancery Court, alleging, as grounds therefor, that her treatment of him and her conduct towards him were such as to render his condition as her husband intolerable, and from a decree awarding him a divorce is this appeal.

Appellant filed a motion, in which she alleged that she had a good and valid defense to the suit, but that she was Avithont funds to employ counsel to properly present it. She alleged that she and appellee Avere the parents of a six-year-old son, and she prayed that an allowance be made her with which to defend the suit, and for the support and maintenance of herself and the child during its pendency. Upon hearing this motion the court ordered appellee to pay $50 per month for the support of appellant and the child, and to pay her attorney $50 as a fee, and to pay $25 as court costs. Later an answer was filed, which, denied that either appellant or appellee were residents of this State, and tlie allegations of misconduct on appellant’s part were specifically denied.

We think the residence of appellee was sufficiently shown to confer jurisdiction on the Independence Chancery Court to grant the divorce, as was done. Appellee was engaged in business as a general contractor, and moved about from the place of one contract to another, the performance of several of which required him to reside in a tent at his camp, where his wife lived with him. Appellee appears, in some contracts, to have been employed by his father, who was the principal contractor, and in other contracts to have been in partnership with his father and a brother, who was also interested in some of these contracts. The headquarters of the contracting firm appear to have been at Cushman, in this State, where the permanent records of the contracting firm were kept and where final settlements were made of the transactions growing out of the contracts, and to which place appellee returned at irregular intervals. He testified that Cushman was his home, and that he had no other, and had never acquired any other residence; that he had always paid his poll tax and had voted in that county, and had never voted elsewhere, and that it was in fact his home.

Upon the merits of the case, it may be said that the testimony is voluminous and conflicting, but, after carefully considering it, we are unable to say that the allegations of appellee’s complaint are not supported by a preponderance of the testimony. No attempt was made to show that appellant was guilty of conduct involving moral turpitude. The testimony relates to the infirmity of her temper, which, according to appellee’s testimony, was irascible and ungovernable.

It is argued that the more violent outbreaks were condoned, because the parties continued to cohabit as man and wife after their occurrence. But not so. One indignity might not — and usually would not — afford ground for divorce. It is the persistence of one spouse in a course of conduct which becomes intolerable to the other of which the law takes cognizance and grants relief by way of divorce, and the doctrine of condonation has no application under the facts of this case. Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41.

The decree does not appear to be contrary to the preponderance of the evidence, and it is therefore affirmed.


author: Humphreys, J.

text:
    Fireman’s Fund Insurance Company v. First National Bank of Fort Smith.
    4-3460
    Opinion delivered May 14, 1934.

      John E. Coates, Jr., for appellant.

      M. A. Hathcoat and 8. W. Woods, for appellee.
   Humphreys, J.

On the 25th day of January, 1932, appellee obtained a judgment for $10,000 against Joe McCracken in the circuit court of Marion County, and on the 20th day of January, 1933, caused a writ of garnishment to be issued thereon against appellant, upon the allegation of appellee that it had reason to believe that appellant was indebted to Joe McCracken.

After due service of the writ, appellant filed an answer on the 25th day of January, 1933, admitting that it issued a fire insurance policy to Joe McCracken and E. L. Huddleston, doing business under the firm name of Joe & Hud, on their stock of goods and fixtures, protecting them against loss in the sum of $2,250, and that they suffered a fire loss, but stating that no adjustment of the claim had been made, and for that reason it did not then know whether it was indebted to them in any sum, and that, when the adjustment was completed, further answer to the garnishment would be made. It further answered that a previous garnishment had been served upon it by the Little Rock Tent & Awning Company.

Appellant filed no additional answer, and appellee filed no reply to what purported to be the original answer of the garnishee.

About a year afterwards, and at a regular term of court, appellee obtained a judgment against the garnishee (appellant) in the full amount of the policy, from which is this appeal.

Appellant contends for a reversal of the judgment and a dismissal of the garnishment on the ground that it denied any liability in its answer, and that it was incumbent upon appellee to file a reply contravening the issue tendered and to establish its liability before judgment could have been rendered against it. Had appellant denied liability on the policy, it would have been the duty of appellee to file a denial in accordance with the statute (Crawford & Moses’ Digest, § 4912), and the rule announced in the case of Beasley v. Haney, 96 Ark. 568, 132 S. W. 646, and cases therein cited. Appellant did not deny liability, but, on the contrary, stated in its original answer that the claim was under adjustment, and that, as soon as completed it would file an additional answer. This it neglected to do for a year or more, and by its silence admitted liability to the partnership in the full amount of the policy.

It was the duty, however, of appellee before taking a judgment for the full amount to have made his partner, E. L. Huddleston, a party and to have shown that he was not entitled to any part of the claim; also to have made the Little Rock Tent & Awning Company a party and to have shown it was entitled to no part thereof, or, if entitled to any part, what part; and to have shown there were no partnership debts. If there were any partnership creditors, they were entitled to be paid ont of the claim before McCracken was entitled to any part thereof. Appellee’s right to any part of the claim depended on whether McCracken had any share therein, or, in other words, its right must have been worked out through Mc-Cracken’s interest in the claim.

The judgment is reversed, and the cause is remanded with directions to the circuit court, when all necessary parties are brought in, to render judgment against appellant in favor of appellee for the amount it owes Mc-Cracken after the partnership debts are paid and after the claim, if any, of the prior garnishee is paid and the partner, E. L. Huddleston, is awarded his share, in case he is entitled to any part thereof. The appellant can protect itself from double payment by paying the entire amount of the claim into the registry of the court and getting a discharge.


author: Kirby, J.,

text:
    Shank v. State.
    Crim. 3878
    Opinion delivered May 14, 1934.

      W. T. Patet Jr., Jehu J. Crow, Ben M. McCray and N. A. McDaniel, for appellant.

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

(after stating the facts). There are eighty-three assignments of error in the motion for a new trial, many of which are unimportant, and we only notice such as are insisted upon by appellant.

First, it is insisted that the trial court erred in calling jurors who had been summoned to serve on a previous case after the regular panel had been exhausted, it being claimed that the prospective jurors should have been summoned from the bystanders in accordance with the statute, § 3154, Crawford & Moses’ Digest. An accused person has no right to the services of a particular juror but only to a trial before a fair and impartial jury. The trial court has wide discretion in summoning special veniremen, and the fact that these particular eight jurors had'been summoned before the appellant’s trial began did not constitute error. Pate v. State, 152 Ark. 553, 239 S. W. 27; Sullivan v. State, 163 Ark. 11, 258 S. W. 643.

It is next insisted that the examination of the juror, J. R. Haynes, disclosed that he was incompetent, having-answered the question: “Q. Would the fact that he is charged with this sort of crime have any effect on you? A. It would to some extent.” The record of this juror’s examination on his voir dire showed that he stated several times that he could and would go into the jury box with an open mind.and free from prejudice and try the case solely upon the evidence and the law. The fact that the juror might have been prejudiced against the particular type of crime of which appellant stood charged did not in itself disqualify him. Tong v. State, 169 Ark. 708, 276 S. W. 1004; Cabe v. State, 182 Ark. 49, 30 S. W. (2d) 855.

The assignment that error was committed in admitting portions of depositions of certain witnesses, naming them, taken in Ohio on appellant’s behalf, is without merit. The depositions were introduced by appellant, and the court was not asked at the time to rule upon their admissibility. It is true that at the beginning of the trial appellant asked the court to rule on the admissibility of certain of the depositions after they were introduced, and the court refused to do so at the time. During the course of the trial appellant introduced the depositions in full without asking- for any further ruling and without any being- made. There must, however, be a ruling of the court and an objection before error can be predicated. Howell v. State, 180 Ark. 241, 22 S. W. (2d) 47.

It is next urged that it was error to permit Dr, Hodges to testify concerning the condition of the little boy whose life was saved. The doctor testified that the boy had been poisoned with strychnine about the same time and place as the others, and described the symptoms; and it was competent to show that he had been poisoned at the same time and place as the others as merely a part of one transaction. Banks v. State, 187 Ark. 962, 63 S. W. (2d) 518.

It is urged that the admission of the testimony of Mrs. Elsie Fox constituted error. No objection was made to her direct examination. It developed, however, on cross-examination that her testimony was largely hearsay, and the court, at the request of appellant, instructed, the jury not to consider that part of her testimony which was hearsay. The appellant had brought out part of the incompetent testimony and made no objection to that part elicited by the State. His motion to exclude that part of the testimony was addressed to the discretion of the court, and there was no abuse of discretion in the ruling thereon. Bell v. State, 120 Ark. 530, syllabus 12, 180 S. W. 186.

Neither was it error to allow the witness, Crutch-field, to answer the question asked by the prosecution as to whether or not he had information that appellant was implicated in the theft of certain papers from his office. Crutchfield was the prosecuting attorney of Wayne County, Ohio; and appellant stated in his confession that he was being implicated in that theft; and the State was contending that the implication of appellant in the crime in Ohio was the moving cause or factor in appellant’s trip to Arkansas, and the poisoning of the Colley family. It was only asked for the purpose of affording an explanation as to why an official was following a certain line of investigation and is admissible both as such and as tending to show a motive for the homicide. Turner v. State, 155 Ark. 443, 277 S. W. 727; Sexton v. State, 155 Ark. 441, 244 S. W. 710; March v. State, 183 Ark. 1, 34 S. W. (2d) 767.

Neither was error committed in refusing to allow the witness, Dr. 'Brown, to answer the question giving an explanation that appellant was suffering with such mental disease as rendered him irresponsible. The question was not a proper one to ask an expert witness. Underhill on Criminal Evidence, 3 ed., §§ 267-68. Neither was it necessary that the question asked this witness by the prosecuting attorney on cross-examination contain all the undisputecl facts essential to the issue. Underhill on Criminal Evidence, (3 ed.) § 191.

No error was committed in allowing the witness, Joe Wakelin, to testify relative to a conversation with Dr. Echols, an expert witness, who had detailed his examination of appellant upon which he based an opinion that he was insane. It appears that Dr. Echols had been asked concerning this conversation with Wakelin, and he testified that appellant was insane. Wakelin’s testimony was competent to show that the doctor had made a previous contradictory statement indicating that he thought appellant was sane. Floyd v. State, 181 Ark. 185, 25 S. W. (2d) 766.

No error was committed in overruling appellant’s motion for a continuance on account of the absence of two witnesses whose testimony it was alleged was essential to a proper defense of the cause. The names of the witnesses were not set out in the motion, and it was not indicated how or when their attendance might be procured and they were to he used as nonexpert witnesses concerning appellant’s insanity. Such evidence was merely cumulative to the evidence already offered, conceding that the witnesses would testify as set out in the motion. The motion, however, was not in statutory form, it not being stated therein that appellant believed the testimony of the absent witnesses to be true. Sections 1220 and 3130, Crawford & Moses ’ Digest; Estes v. State, 180 Ark. 656, 22 S. W. (2d) 172; Weaver v. State, 185 Ark. 147, 46 S. W. (2d) 37; Lynch v. State, 188 Ark. 831, 67 S. W. (2d) 1011.

It is urged that the court erred in giving instructions numbered 11, 11% and 12, it being claimed there was no evidence in the record to support same. There is evidence in the record to support these instructions found in appellant’s confession; and they are correct declarations of law. Bell v. State, 120 Ark. 530, at page 555, 180 S. W. 186. Instruction No. 13, objected to, is also a correct declaration of law. Id. page 553. Instruction No. 14, complained of, was not erroneous, the jury having the right to consider appellant’s actions before and after the crime and his appearance at the trial in determining his sanity,- that question being before the jury. Underhill on Criminal Evidence, 3 ed., % 261-62. Appellant’s requested instruction No. 13 was properly refused. Payne v. State; 177 Ark. 413, 6 S. W. (2d) 832; Wawak and Vaught v. State, 170 Ark. 329, 279 S. W. 997.

Appellant’s requested instruction No. 16, relative to the weight to be given the testimony of the officers testifying, was fully covered by instruction No. 22, given; and the credibility of particular witnesses and the weight to be given their testimony should not be emphasized in separate instructions, any way. Nichols v. State, 182 Ark. 309, 31 S. W. (2d) 527. Both instructions No. 16 and No. 22 should have been refused; and instruction No. 17 was fully covered by instructions No. 12 and No. 20, given, all of which should have been refused for the same reason as assigned for the refusal to give appellant’s requested instruction No. 13 already discussed. Appellant’s requested instruction No. 17B was fully covered by instructions No. 15 and No. 19, given. No error was committed herein under the familiar rule that instructions should be considered as a whole, and that the trial court is not required to repeat instructions.

It is finally insisted that certain remarks of the prosecuting attorney herein constituted error. The prosecuting attorney in his argument said: “He is guilty. I know it, and you know it, and the defendant knows it.” The cases of Hughes v. State, 154 Ark. 621, 243 S. W. 70, and Sanders v. State, 175 Ark. 61, 296 S. W. 70, are cited in support of this contention. These cases are sharply differentiated from the present case, the Hughes case being reversed because of the statement of the prosecuting attorney that he knew that the defendant was guilty because he had information that no one else had; and the Sanders case was reversed for the same reason. No inference of the kind can be drawn from the statement of the prosecuting attorney herein complained of. He also said directly to the jury that he based his opinion upon the evidence introduced in the trial, and told them that they had the same opportunity as he had to reach the conclusion, and, if he had reached the wrong conclusion, they could disregard it. He was not concealing anything from the jury or indicating that he had any knowledge or evidence in the case which was not before them. The expression of an opinion by a prosecuting attorney on the evidence does not constitute a reversible error. McGraw v. State, 184 Ark. 342, 42 S. W. (2d) 373.

Objection was made to the introduction of appellant’s confession on the ground that it was not freely and voluntarily made. No exceptions were saved to the ruling on this question, nor was it made a ground in the motion for a new trial. The question of its admissibility, however, was properly raised in the lower court, and it must be considered here without regard to whether exceptions were saved to its introduction and the ruling thereon. Harding v. State, 94 Ark. 65, 126 S. W. 90. The confession Avas introduced during the examination of Congressman D. D. Glover, who, together with witnesses Wakelin, Rucker and OBuckalew, testified that the confession was made of appellant’s own free will and accord, that it was entirely voluntary and made without any threats, intimidation or hope of reward. There is, in fact, no conflict in the evidence as to whether the statement was voluntarily made, and it Avas properly admitted over appellant’s objection. Allen v. State, 175 Ark. 264, 298 S. W. 993.

The evidence in this case is conclusive that appellant administered poison to the Colley family in Saline County, Arkansas, on the 15th day of August, Í933, which act caused the death, of Alvin Colley, his wife and two of his children. Much testimony was introduced on appellant’s part tending to show his insanity; but evidence was introduced on the part of the State tending to prove his sanity; and the question was settled by the jury upon substantial evidence, and their finding cannot be disturbed on appeal.

There are many other assignments of error which are not considered here, as reversible error could not be predicated upon any of them. The issues appear to have been fully and fairly presented to the court and appellant to have received a fair and impartial trial. We find no reversible errors in the record, and the judgment is affirmed.


text:
    Center v. Oldham.
    4-3461
    Opinion delivered May 14, 1934.

      Yol T. Lindsey, James Ptak, Suzanne C. Lighten and Carmichael <S Hendricks, for appellant.

      Kavana-ugh Oldham and Oscar E. Williams, for appellee.
   Mehaffy, J.

Mrs. Willie Vandeventer Crockett died in Tulsa, Oklahoma, in June, 1933, leaving surviving her the appellee, Elizabeth Crockett Oldham, and the appellant, Charles Crockett III, a grandson, the only child of Charles Crockett, who was the son of deceased.

A petition was filed in the Pulaski Chancery Court by Elizabeth Crockett Oldham in July, 1933, to establish what was alleged to be the lost will of deceased. The petition alleges that the will was made on January 3, 1932, and that it was the intention of the deceased to distribute her property as provided in said will; that is, $100 to Charles Crockett III, and the entire remainder of the estate to the petitioner, Elizabeth Crockett Oldham,

There was attached to the petition a form of will prepared by Dwight L. Savage, an attorney of Fayetteville, Arkansas. There was considerable evidence on the question of where the deceased resided, but no contention is now made as to her residence, and it is therefore unnecessary to set out this evidence.

After hearing the evidence, the chancery court found that Mrs. Willie Vandeventer Crockett did make a last will and testament, which was a holographic will, and that same was lost, and that it was in words and figures the same as the form prepared by Mr. Savage. The court also found and decreed that Mrs. Willie Vandeventer Crockett was a resident of Little Bock, Arkansas, before and at the time of her death, and that Elizabeth Crockett Oldham, as executrix, is entitled to act according to law, and ordered that the property belonging to the estate that is in the hands of the administrator, Earl Shook, be turned over to Elizabeth Crockett Oldham, executrix under said will, and that the restraining order theretofore made be made permanent. To reverse this decree, this appeal is prosecuted.

This is a proceeding to restore a lost of destroyed will. The law provides: “Whenever any will shall be lost, or destroyed by accident or design, the court of chancery shall have the same power to take proof of the execution of such will, and to establish the same, as in the case of lost deeds.5 ’ Section 10,542, Crawford & Moses ’ Digest.

Section 10,545 reads as follows: “No will of any testator shall be allowed to be proved as a lost or detroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness.”

Appellant first contends that there is no evidence that the will was in existence at the time of the death of Willie Vandeventer Crockett.

■ Mrs. Elizabeth Crockett Oldham testified that she was the daughter of the deceased; that she knew Mrs. Esther Smith Center, and had written several letters to her while this suit was pending. One of the letters stated that the original copy of her mother’s will had been lost, and that she had to ask the court to establish the will from a copy which was drawn up by Mr. Dwight Savage. She asked Mrs. Center in the letter to tell Mr. Donham, who had been appointed guardian aé litem for the child, that she, Mrs. Center, knew of no other will, and to let this copy of Mr. Savage’s go on, and they could settle the whole matter in a few days. When asked if she ever saw the will that her mother was purported to have made, witness said: “No; it was destroyed.” This witness never saw the will, never saw the handwriting. The copy prepared by Mr. Savage was found at witness’ house by Mrs. Ed Vandeventer, who is the wife of witness’ uncle.

Deceased told witness that she had made a will, but there was never anybody who claims to have actually seen the will in writing. Witness said there was no fraud or collusion, but that deceased wanted her to have all her property.

Mrs. Dollie M. Storey, a Christian Science practitioner, whose advice was frequently sought by deceased, who was a member of the same denomination, testified that deceased consulted her relative to making a will some time in January or February, and that she was positive as to what deceased’s wishes would be; that she wished all her property left to Elizabeth, her daughter. Deceased told this witness that she would make a will and leave everything to her daughter, Elizabeth Oldham. When asked if deceased ever talked to her afterwards about the will, she said that they talked about it for 10 days or two weeks, and one day she came to the office and said: “Well, I have attended to that business. I am thoroughly relieved that I have done the right thing. ’ ’

This witness testified that she never read the will and never saw it. Deceased said that the will should be in her own handwriting, but witness does not know whether she did that or not. Witness testified that deceased was a truthful woman, and she would believe absolutely anything she said. Witness said she did not know whether the will was in existence, but knows that deceased talked to her about its being in existence.

Mrs. Bernice Ratcliffe testified that she could not give the date or even the proximate date, but when she had called to see Elizabeth, they got on the topic of wills, and Mrs. Crockett stated that she had made a will, and she also told witness the same that Elizabeth had testified to. She said everything went to Elizabeth. She never showed witness any will, but just stated she had made her will. Witness does not know whether it was in existence at the time of her death.

Mr. Dwight L. Savage, attorney at law of Fayetteville, Arkansas, testified that he prepared a tentative copy of a will for Mrs. Willie Yandeventer Crockett, which Mr. Frankel had mailed to him with certain questions, and which instrument he returned.

The following letter, written by Mr. Savage, was introduced in evidence:

“July 15, 1933.
“Mrs. Elizabeth Crockett Oldham,
“1512 Prospect Avenue,
“Little Rock, Arkansas.
“Dear Mrs. Oldham:
“I have your letter of July 13, in which you expressed the hope that your mother’s will might be established. As I recall, the facts involving my connection with the transaction were as follows:
. “Mrs. Crockett decided to write a holographic will. She told me, substantially, what disposition she desired to make, of her property following her death. I dictated to my stenographer Mrs. Crockett’s desires in the matter, so framed as to effectuate her intentions. The stenographer wrote this dictation upon a sheet of long white paper.
“When I handed the paper to Mrs. Crockett to read, I suggested to her, if she so desired, in copying it in her own handwriting, she could substitute language less cold and formal, and still obtáin the same effect. Mrs. Crockett replied that the phraseology was agreeable to her except in one instance, to-wit, that which excluded her grandson, Charles Crockett, from any participation in her estate. She said that such was her desire, but that she preferred to soften the expression thereof. “I then suggested to her that I should furnish her the paper, pen and blotter, withdraw from the office, and thus afford her an opportunity to write the will then and there. This offer she declined, however, saying that she would write it in her room at the hotel. I then gave her several sheets of paper upon which to write, and she left the office. I am unable to recall any further reference by her to the will in our subsequent conversations. I do not know whether or not she actually wrote the will.
“I made no charge for my services, as I always remembered your mother’s kindness to me when I was a student in the University; and it was a pleasure to me to try to reciprocate.
“I should willingly testify to the above facts. Unfortunately, however, such testimony would fall short of the requirement for establishing a will, as I understand the law. With the single exception of wills, it is my practice to keep carbon copies of all instruments I prepare. Many testators, however, from time to time, execute new wills in which they change beneficiaries, or bequests, or both. Because of this fact, I regard it as contrary to the interest of the testator that there should be in existence copies of earlier wills, later revoked. I assure you that I will willingly assist you in the matter of your mother’s affairs in any way that I shall be able.
“Expressing to you my deep sympathy because of the death of your mother, to whom I was devoted, and sending personal regards to Kavanaugh, I am,
‘ ‘ Sincerely yours,
“Dwight L. Savage.

There was also introduced a photostatic copy of the form prepared by Mr. Savage. There was considerable evidence introduced showing that it was the intention of the deceased to make a will leaving everything to her daughter, but there is no evidence that she ever executed-the will, except that numbers of witnesses testified that she said she made the will. No one ever saw it, and no one knew that she ever executed the will, and there is no evidence anywhere in the record that the will, if she did execute one, was in existence at the time of her death.

The appellee says that she thinks § 10,545 of Crawford & Moses’ Digest means that the will must not have been revoked by the testator, but that is not what the statute says. The statute says that no will of any testator shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to have been in existence at the time of the death of the testator, or shown to have been fraudulently destroyed in the lifetime of the testator.

There is no evidence that the will was fraudulently destroyed, and it is not contended that the will was fraudulently destroyed, and there is no evidence that the will was in existence at the time of her death. No will was ever found, and. the parties interested had access to all of deceased’s papers, and certainly, if the will had been in existence at the time she died, it seems that somebody would have found it, especially when several of them say that they knew she intended to make a will, and that she had told them that she had done so.

Appellee cites and relies on the statement "of the law in 28 R. C. L. 380. It is there stated that a will lost or destroyed previous to the testator’s death may, if unrevoked, be established, etc. 'But, if it were destroyed before her death, unless the evidence showed that it was fraudulently destroyed, it could not be probated. It could not be in existence at the time of her death if it was destroyed before her death, and the evidence must show, under § 10,545, that it was in existence at that time. The section relied on by appellee also states as follows: “It seems that the fact of loss or destruction may be proved by circumstantial or direct evidence.” But if it were proved by direct evidence that a will was made, it would still have to be shown by the evidence that it was in existence at the time of the death of the testator. It is alleged that the will here involved was a holographic will. The fifth subdivision of § 10,494 of Crawford & Moses’ Digest describes a holographic will in this State.

It is stated in 1 Page on Wills, p. 584: “Since the Legislature has made specific provision for attested wills, and for'holographic wills which are executed in accordance with certain specified formalities, holographic common-law wills which do not comply with the statutory formalities are invalid. The statutes providing for the execution of holographic wills are mandatory and not directory, and a holographic will is invalid unless it complies therewith.”

Our attention has not been called to any case construing our statute or a like statute of another State. There are many cases, however, construing somewhat similar statutes, and these statutes are generally held to be mandatory and not directory. In order to probate a holographic will, it must, under our statute, be shown to be in existence at the time of the death of the testator. If it be conceded that a holographic will was made, it could not be probated unless the evidence showed that it was in existence at the time of the death of the testator.

Under the North Carolina statute, certain requirements as to the place of finding of a holographic script, testamentary in its nature, must be satisfied in order that it may be established as a will. Our statute does not provide that it must be found among valuable papers, but it does provide that the evidence must show it was in existence at the time of the death of the testator.

The North Carolina Supreme Court said: “One alternative requisition of the statute is that it must ‘be found among the valuable papers or effects’ of the alleged testator. The provisions of the statute are$* of course, mandatory and not directory, and therefore there must be a strict compliance with them before there can be a valid execution and probate of a holographic script as a will; but this does not mean that the construction of the statute should be so rigid and binding as to defeat its clearly expressed purpose. It must be construed and enforced strictly, but at the same time reasonably.” In re Will of W. T. Jenkins, 157 N. C. 429, 72 S. E. 1072, 37 L. R. A. (N. S.) 842. The same court in another case held that the statutory provisions must be followed in all the essential respects. In re Bennett’s Will, 180 N. C. 5, 103 S. E. 917. See also Hooper v. McQuary, 45 Tenn. (5 Cold.) 129.

These cases hold that the statute with reference to the finding of the will after the testator’s death must be complied with. Under our statute, as we have said, it must be shown that the will was in existence at the time of the death of the testator. There is no evidence, either direct or circumstantial, tending to prove that the will was in existence at the time of the death of the testator. If the proof had been clear and explicit, or if it had been admitted that the will was made, still it could not be probated unless it was shown to be in existence at the time of the death of the testator.

Our statute, § 10,494, provides that a holographic will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of the testator. In order to restore a lost or destroyed will, it must not only be shown by the evidence that' the will was in existence at the time of the death of the testator, but its provisions must be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness.

There is abundant evidence that the deceased intended to make a will, but no evidence, except her statement, that she had ever made one. So there is a complete failure of proof as prescribed by statute, either that she made a will or its provisions. The copy introduced in evidence is nothing more than a copy of a form prepared by Mr. Savage, and no evidence in the record anywhere that the deceased ever copied this. It is true several witnesses say that she told them that she had made her will, and told them what its provisions were, but the statute requires the provisions to be clearly and distinctly proved by at least two witnesses. If the proof showed that she made the will by copying the form given her by Mr. Savage, then this copy might be introduced and be deemed equivalent to one witness. But there is no evidence that she copied this; and there is no evidence in the record at all that she made a will, except evidence of witnesses who testify that she told them she had.

We do not deem it necessary to discuss at length the question of whether she made a will, because we have already said that there was no evidence that it was in existence at the time of her death.

Appellee, however, says that, if she is correct in her contention that Mrs. Crockett prepared her will according to the draft she had Mr. Savage prepare for her, then the contents are clearly shown; but we have already said that there is no evidence tending to show that she prepared her will according to the draft that she had Mr. Savage prepare. On the contrary, the evidence shows that after Mr. Savage had prepared the form he gave her some paper, and told her that he would retire and leave her in his office to copy the will. She declined to do this, but said she would take it to her room at the hotel and copy it; but there is a total lack of evidence that she copied it at her hotel or anywhere else.

The decree of the chancery court is therefore reversed, and the cause remanded with directions to dismiss the petition.


text:
    Illinois Bankers’ Life Assurance Co. v. Lane.
    4-3470
    Opinion delivered May 14, 1934.

      Huie Iiuie, for appellants.

      J. H. Loohacloo, for appellee.
   McHaney, J.

Ezra C. Lane, now deceased, husband and father of the appellees, on March 1,1917, took out an insurance certificate or policy with appellant, Illinois Bankers’ Life Association, a mutual assessment company, for $1,000. The other appellant, in 1929, reinsured the business of the association, and, if liability exists on this policy, is indebted to appellees in said sum. Premiums were payable quarterly in advance with thirty days of grace. All premiums were paid prior to that which became due October 1, 1932, but it was not paid within the grace period or at all, and, by the terms of the policy, it lapsed and became void, but for the matters hereinafter set out.

The policy contained in § 9 a disability provision that: “Upon receipt of satisfactory proof to the Association that the insured has been totally and permanently disabled by accident * * * and will be thereby continuously prevented for life from doing labor, or the prosecution of any kind of business, then the association will pay, upon due and sufficient proof, one-half of the face of this policy, and the remainder to the beneficiary at the death of the insured, the policy having been continued in force.” Section. 10 reads as follows: “Proof of Death or Disability. — Proof of death or disability of the insured must be furnished the association at its home office upon forms furnished by the association within six months after the death of the insured or the commencement of the total and permanent disability. No action at law or in equity shall be maintained on any policy of insurance issued by this association or recovery had unless such, proof be so filed or unless the action be commenced within one year after the death of the insured.”

The insured died February 25, 1933. To excuse the failure to pay said premium due October 1, 1932, appellees alleged and proved, to the satisfaction of the trial court, that in August, 1932, the insured, who had for five or six years suffered from a shin ulcer on ,his right leg, ran into some barbed wire which re-injured the old sore on his right leg and also injured his left leg, from which he became totally and permanently disabled; that on September 14, 1932, the daughter, Mrs. Huggs, wrote and mailed to appellant a letter, of which the following is a copy kept by her:

“Arkadelphia, Arkansas, September 14, 1932.
“Illinois Bankers’ Life Assurance Co., Monmouth, Illinois.
“Gentlemen: I am writing you in regards to
Ezra C. Lane, who holds policy No. 73137. He was injured on or about the 11th day of August, 1932, when he was driving up some calves and ran into some barb wire and hurt his legs, and has not been able to work to amount to anything since, and the doctors say he will never be able to work. So I want you to mail to me at once the form for Ezra C. Lane to fill out making his proof according to policy.
“Yours truly, Mrs. Hila M. Huggs.”

She received no reply to that letter and appellants say it was never received, and that the first they ever heard of a disability claim was when this suit was filed. On February 24, 1933, the day before her father’s death, Mrs. Huggs wrote appellant the following letter: “Times has been so hard with us that we neglected to pay my father’s (E. O. Lane) dues, and now that we have work, would like to take them up. Please let me know what I can do about them.” This letter was answered by appellant on March 1, advising that the policy had lapsed on October 1, 1932, and that it could be reinstated by payment of back premiums and furnishing proof of insurability. Suit was filed on April 17, 1933. Trial resulted in a decree for appellees for the amount sued for, with penalty and attorney’s fees.

For a reversal it is first urged that total and permanent disability was not shown by a preponderance of the evidence. Appellants seem to concede that, if the insured became totally and permanently disabled within the provision of the policy before October 1, 1932, and gave notice thereof, then the failure to pay the premium due October 1 ($4.38) would not justify it in lapsing the policy, because it held in its hands at that time $500 belonging to the insured. As to the disability, we think the evidence sufficient to support the court’s finding. It is undisputed that the insured had suffered from a chronic sore leg for five or six years; that the old sore had practically healed; that on August 11, 1932, he injured both legs by accidentally coming in contact with barbed wire; that his legs became very bad thereafter, his physician saying that he was permanently disabled thereby. It is true he continued to perform the duties of night watchman at a sawmill until October 14, when he was apparently discharged for going to sleep while on watch, and that some of his neighbors did not know of his condition, but this does not conclusively negative total and permanent disability. We cannot say the court’s finding in this respect is against the preponderance of the evidence.

It is next argued that, even though the insured became disabled, still appellees cannot recover because no notice and no proof thereof were furnished appellants. Mrs. Huggs testified very positively that she wrote the letter of September 14, 1932, asking for forms to make the proof, and that she wrote a second time later, but received no answer. The assistant secretary of appellant testified that said letters were not received. The policy required proofs to be made on forms furnished by the company, and if in fact, as the court found, appellee did notify it of the disability and asked for forms which it failed or refused to furnish, it is in no position to complain because no proofs were made. As said by this court in Eminent Household of Columbian Woodmen v. Gaunt, 128 Ark. 626, 194 S. W. 700: “The company had the right to require formal proof on blanks to be furnished for that purpose, but it was the duty of the company to furnish the blanks, and it did not do so. This formal proof could have been furnished only on the blanks of the company, and, as it did not furnish them for that purpose,- it can not now complain of its own omission to demand a form of proof which it could have secured only by doing something which it failed to do.” While there is some doubt that any notice of disability was ever given, we are unwilling to say that the finding of the court is against the weight of the evidence, even though the letter of February 24 failed to mention the fact that the former letter had not been answered.

It is nest urged that there should have been an administrator of the insured’s estate, and that he was a necessary party. We think not. It is not shown that there are any debts. The complaint alleged that appellees are the sole heirs at law. There was no proof that such is the fact, but it is shown that Della Lane is the widow and that Mrs. Huggs is the daughter of the insured. As such, they had the right to maintain this action. Section 1, Crawford & Moses’ Digest; Masson v. Woodmen of Union, 164 Ark. 568, 262 S. W. 648; Metropolitan Life Insurance Company v. Fitzgerald, 137 Ark. 366, 209 S. W. 77.

Other contentions are that the decree should have designated the amount each was entitled to, and that no penalty and attorney’s fee should have been allowed. The first was not raised in the court below. Appellees recovered the full amount sued for, so the penalty and fee were properly allowed.

Affirmed.