author: McCulloch, C. J. Hart, J.

text:
    Payne v. Road Improvement District No. 1 of Howard County.
    Opinion delivered July 11, 1921.
    1. Appeal and ERROR — conclusiveness of findings of trial court.— Findings of fact of a trial court on conflicting testimony will not be disturbed.
    2. Highways — road improvement districts — legislative determination of benefit. — The fact that the county court found that certain lands would receive no benefit from a road improvement did not preclude the Legislature from determining to the contrary, and such legislative determination will not be disturbed by the court except for demonstrable mistakes.
    3. Highways — road improvement district — zonal assessment — review. — Though a board of assessors adopted the zonal system of assessment, and the court found that such system was fair and just as a proportionate assessment of benefits, this did not deprive the court of the power to examine individual assessments to determine whether they should be assessed in the same proportion as other lands in the same zone.
    Appeal from Howard Circuit Court; James 8. Steel, Judge;
    reversed in part.

      W. C. Rodgers, for appellant.
    By thé judgment of tbe county court it was adjudged that none of tbe lands described in certain sections would be benefited. This order was entered by consent. This judgment is conclusive of tbe matters there settled. 107 Ark. 41; 76 Ark. 423. The Legislature could not validate the acts of a board of assessors fixing assessments ■where there are no benefits. 119 Ark. 198.
    The special finding that these lands are not benefited is in an irreconcilable conflict with the finding that they are liable. The special finding of fact should prevail. 40 Ark. 298, 327; 50 Ark. 91; Kirby’s Digest § 6209. The statute also applies to the findings of a judge. 84 Ark. 362.

      J. M. Jackson and H. P. Epperson, for appellees.
    The county court had no legal authority to exempt a part of the lands included in the district from taxation. It might have eliminated such lands from the district if they were not benefited. Crawford & Moses’ Digest §5401. The court at the time it made the order exempting these lands had no question before it except the matters set forth in §5401, Id. The act of 1919, No. 105, cured all defects, and failed to provide that these lands should not be assessed. The entire benefits as reassessed are not before the court, but only the benefits as reassessed against the lands of these plaintiffs. The question here is whether the burden is equitably distributed, rather than whether each tract is benefited. No fairer scheme of assessment could have been devised than the one followed by the assessors in making this reassessment. The tracts involved herein are benefited, and the benefits as reassessed should be permitted to stand.
   McCulloch, C. J.

Appellants are owners of separate tracts of land within the boundaries of Road Improvement District No. 1 of Howard County, and they appeared in the county court and made objections to the assessment of benefits on said lands. There are two of the cases in which a protest was filed, and in each case the, county court found that none of the lands of appellants would be benefited by, the construction of the improvement and. annulled the assessment of benefits thereon. The commissioners of the district prosecuted an appeal to the circuit court in each case, and in that court the two cases were consolidated and tried as one. The consolidated cases were heard on the pleadings and oral testimony, and a judgment was rendered, from which each side has prosecuted an appeal to this court.

It is contended in the first place that the appeal to this court prosecuted by the commissioners of the district is unavailing for the reason that no motion for a new trial was presented to the court in apt time and overruled. Since the transcript was lodged here by the appellants, there has been an additional record brought here of proceedings of the trial court on an adjourned day of the same term at which the original judgment was entered, amending the record so as to show that a motion' for a new trial was filed and overruled and time given for filing a bill of exceptions. Appellants invoke an application of the rule established by the authorities that after an appeal has been granted a trial court has no jurisdiction to take further proceedings in a cause. This rule can not be applied so as to deny the trial court’s jurisdiction to consider the application for a new trial of a party other than the appellant. The statute fixes the time within which motions for new trial may be presented and considered by trial courts, and it is within the discretion of trial courts to extend the time to a date within that term of court. Where both parties to litigation are aggrieved by the judgment, each has a right to prosecute an appeal and take necessary steps leading up to it within the time prescribed by the statute and the order of the -court, and one party can hot deprive the other of any of his rights by a hasty appeal. ■

The motion for.new trial in this case was filed by permission of the trial -court during the term at which judgment was rendered, and therefore, on the overruling of the motion, the commissioners of the district had.the right to prosecute an appeal to this court, notwithstanding- the fact that appellants had theretofore completed their appeal by lodging a transcript in this court. We are of the opinion, therefore, that both appeals are properly before this court with bills of exceptions which constitute a complete history of the trial below.

This improvement district was originally created by an order of the county court of Howard County, entered on October 7, 1918, pursuant to the general statutes of the State authorizing the creation of road improvement districts. Crawford & Moses ’ Digest, § 5399 et seq. The lands within the district were properly described in the order of the county court and in the petition therefor, but the order contained the following recital in regard to certain lands described in the petition:

“It being hereby agreed by the parties owning lands hereafter described,, their attorneys and the attorneys for said road improvement district, because of the topographical location of the said lands, no benefits are to be assessed against the said property for the road improvement district, towit: The south half of sections 8, 9, and 10, and all of sections 14, 15, 16, 17 and 18, all in township 8 south, range 28 west.”

The General Assembly at the regular session of 1919 enacted a statute, approved February 22, 1919 (Yol. 1, Road Acts, page 201), curing all irregularities and errors in the organization of Road Improvement District No. 1 of Howard County, and re-establishing the district, describing the lands therein, including the lands specially referred to in the order of the county court quoted above. This statute provides that the district is established as a road improvement district under the general statutes ‘ ‘ with all the powers granted and all the limitations imposed by the terms of said act, except as herein otherwise provided.” Section 3 of the special statute expressly confirms the assessment of benefits theretofore made by the assessors. Section 4 provides how the assessments shall be paid in installments, with interest on the deferred payments.

At the extraordinary session of the General Assembly in February, 1920, a special statute was enacted applicable to this district (Act No. 285) expressly declaring that the assessment ,of benefits heretofore made by the board of assessors is equitably distributed in said district, “but inadequate in amount, and that all lands within said district will be benefited by the improvement now under way to the extent of double the amount of the present assessments.” This statute declares that the county clerk of Howard County shall be authorized to double the assessments “now standing against said lands”, and that the assessments thus doubled shall “be made and authorized according to the provisions of” the general statutes of the State. The assessments thus doubled by the special statute referred to were, on a hearing by the county court, disapproved, and no appeal was taken from that order. Notwithstanding this order of the county court, the clerk extended the taxes on the books, pursuant to act No. 285, but the collection was restrained by a decree of the chancery court rendered in a suit instituted for that purpose by owners of property attacking the validity of the assessments. There was no appeal from that decree, and thereafter the commissioners ordered a new assessment, which was duly made by the board of assessors and reported to the county court. This is the assessment against which the protests of appellants were filed in the county court when the assessments came up for that court’s approval or disapproval.

The board of assessors adopted what is known as the zone system by dividing the district into zones according to the distance of the lands from the road to be constructed and levying the assessments proportionately according to zones. All of the lands of appellants are in the fourth zone, and the assessors appraised the benefits at ten per centum of the assessed value of the lands. There were protests made by the owners of property in other zones, but there has been no appeal prosecuted from the order with respect to those lands.

On the hearing of the cases in the circuit court, that court decided that the lands excluded from the assessments by the original order of the county conrt creating the district can not be assessed now for the reason that the order of the connty conrt was conclusive, and that the Legislature could not thereafter authorize the taxation of those lands for the construction of the improvement. The court made a finding that the lands of appellants situated in the fourth zone “should be assessed five per cent, of their assessed value, instead of ten per cent, as fixed by the assessors,” and that “the assess- ' ment of benefits against the other lands mentioned in the complaint should not be disturbed because the district has already incurred large liabilities, and for this reason alone.” There is no appeal by the parties interested in the last finding, and so we have no concern with that. This is the substance of the judgment as recited by the court in the corrected entry made on May 17, 1921. The judgment as originally entered contained a general finding by the court that there were no benefits to the lands in the fourth zone, but the judgment entry subsequently entered corrected the judgment so as to strike out the recital of such finding.

Appellants complain of that part of the judgment which appraises the benefits at five per cent, of the assessed value of their lands; and, on the other hand, the commissioners appeal from that part of the judgment which exempts from taxation the lands referred to in the original order of the county court, and from that part of the judgment which reduces the assessment on appellants’ lands from ten per cent, of the assessed valuation to five per cent, of the assessed valuation.

The court heard the issues, as before stated, on oral testimony, and there was a conflict in the .testimony. Each of the appellants testified concerning his own tract of land in the fourth zone, and the testimony tended to show that there was no benefit to be derived from the road, or a smaller amount of benefits than those assessed by the board. The assessors and commissioners were introduced as witnesses, and their testimony tended to show that the adoption of the zone system was, nnder the circumstances, a fair and proportionate assessment of benefits. There was, in other words,- a conflict in the testimony, and there was sufficient testimony to justify the finding of the court that the lands of appellants were benefited to the extent of the amount found by the board of assessors. We have adopted and adhere to the rule in proceedings of this character that the findings of a trial court on conflicting testimony will not be disturbed. St. Louis & S. F. Ry. Co. v. Fort Smith & Van Buren Bridge Dist., 113 Ark. 493. There was certainly enough testimony to warrant the finding of which the appellants complain, and under the settled practice in this court the finding -will not be disturbed. It follows that the judgment on the appeal of the appellants will be affirmed.

The trial court apparently made no' finding as to the benefits to the lands originally excluded by the order of the county court and held that under that order there was no power under legislative authority to assess them. In this the court erred, for, notwithstanding the original exemption of the lands from the district, it was within the power of the Legislature to include them in the district as re-established and authorize die assessment of benefits. The Legislature in the special statute did not undertake to determine the benefits, but left that to the findings of the board of assessors, subject to the approval or disapproval of the county court and the right to appeal as fixed by the general statutes, with reference to road districts. The fact that the county court upon the facts presented to it at that time found that the lands would not be benefited did not deprive the Legislature of the power to subsequently reach a different conclusion upon the facts presented to it in re-establishing the district. The power of the Legislature over this subject is, as we have often said, supreme, and will not be disturbed by the court except for demonstrable mistakes in such determination. This part of the judgment will, therefore, be reversed for further proceedings in passing upon the protests of the owners of the property against the assessments made by the board of assessors.

The commissioners have also appealed from that part of the court’s finding and judgment reducing the assessment on the lands of appellants from ten per cent, to five per cent. This proceeding merely challenges the correctness of individual assessments of the parties who are protesting, and the effect of the court’s ruling is that these particular tracts of lands will not be benefited ten per centum of the assessed valuation as found by the board of assessors, but will only be benefited five per centum of that valuation. The evidence was, as before stated, abundantly sufficient to show that the zone system as adopted by the board of commissioners was fair and just as a proportionate assessment of benefits, but the fact that the court approved the adoption of the zone system by the board of assessors does not deprive it of the power to examine individual assessments to determine whether or not they should be assessed in the same proportion as other lands in the same zone, for it is entirely consistent to say that it is fair-to assess the lands by zones in accordance with the distance from the road, yet under the peculiar circumstances a given tract of land in a zone would not be benefited in the same proportion as other lands in that zone. Notwithstanding the zone system, it is always a question for determination by the court on the hearing of assessments to determine whether or not individual assessments should be absolutely controlled by the zone system. After all it is a question of fact in each case for determination by the court what is the proper proportionate assessment on a given tract of land. We must assume that the court found in this case that these particular tracts owned by appellant would not be benefited to the extent of the percentage adopted by the board of assessors, but would be benefited to the extent of five per centum of the assessed valuation. In other words, we conclude that there was sufficient testimony to warrant the finding of the court, and, there being no inconsistency in the court’s finding, it should not he disturbed. This portion of the judgment on the appeal of the commissioners will therefore he affirmed, hut, as before stated, that part of the judgment which relates to the lands wholly excluded from the assessment will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Hart, J.

(dissenting). The Road Improvement District was first established by the county court, and that •court held that the lands in question were not benefited by the improvement of the road on account of their topographical location. No appeal was taken from the decision of the county court, and its judgment became final. Subsequently the Legislature attempted to provide for a reassessment of the land and to validate such additional reassessment. The county court acted within its jurisdiction, and after its judgment became final the Legislature had no right or power to set aside or impair the final judgment of a court of competent jurisdiction. The Legislature could not validate the assessment of benefits held void by the county court or authorize a new assessment after the county court had held that the assessment on the lands in question was invalid ¡and its judgment had become final. To so hold is to give the Legislature power to reverse a final judgment of a court of competent jurisdiction. The rule is based upon the principle that the co-ordinate departments of government are independent and should be kept separate and distinct from each other.

In Moser v. White, 29 Mich. 59, the court held that the Legislature could not, by legalizing an invalid tax roll, set aside or impair a judgment against the collectors for trespass in attempting to collect the tax. Judge Campbell, speaking for the court, said: “That act does, in terms, purport to heal all the defects which have been pointed out. But the plaintiff’s judgment was obtained before the justice before tbis act was passed. If regular when obtained, it could not be reversed. The Legislature has no authority to reverse judgments, directly or indirectly. The effect of the act must be so limited as not to interfere with an existing judgment, or it would be necessary to declare it void on principles too elementary to be discussed. The case bad already been tried, and there was to be no further trial to determine the merits. The judgment had fixed the question of fact, and the only matter open in the circuit court was whether, in so doing, any legal error had been committed. To allow such a judgment vacated when there had been no error committed would be a plain invasion of a private right, and a usurpation of judicial powers which cannot be justified.” After the judgment of the county court, holding in the first instance that the lands in question were not benefited by the improvement of the road, had become final, the fruits of the judgment became rights of property, and no longer in that same proceeding could the Legislature validate that which the court had held void or reassess lands, or provide for the reassessment of lands, which the court had held were not benefited by the improvement. The Legislature attempts to avoid the effect of the judgment of the county court, not by directly setting it aside, but by a direction to a board of assessors which, in its effect, must be of equivalent import. The line which separates judicial from legislative authority is clear and distinct, and the Legislature cannot set aside, directly or indirectly, a final judgment of a court of competent jurisdiction.

It is apparent that the zone system of assessing benefits in road improvement districts frequently leads to inequalities, and in the hill sections of the State, like the one in question, the zone system is for the most part arbitrary and discriminatory.

It is undoubtedly'true, that the assessment of benefits is a question of fact, and, like other questions of fact, the verdict of a jury or the finding of a circuit court is binding on appeal where the conclusion is reached by giving credence to the witnesses on the one side or the other, however improbable or unreasonable we might believe the testimony to be. It is equally well settled, however, that this court will not allow the verdict or finding of the circuit court to stand where it is opposed to the physical facts, the well-known laws of nature or other matters of which the court takes judicial cognizance. Here the voice of nature speaks and will not be denied. The topography of the land may be learned from the maps. The hills and hollow®, the ridges and ravines, the mountains and valleys, and the accompanying water courses do not vary or change except in rare instances, and for very unusual causes. In the hills, fertile fields and rocky and barren lands lie side by side. The heights of the ridges and mountains and the depths and width of the ravines and streams all constitute natural barriers which are not changed or overcome by the improvement of the roads. A farm which has an impassable ridge or ravine, or a stream difficult or impracticable to cross between it and a public road, is not rendered more accessible to the road by reason of the improvement of the road itself. We must not forget that the assessment of benefits proceeds upon peculiar benefits to the lands from the improvement, and not from the general good common to all the lands. The benefits must be peculiar to the lands assessed and must arise directly and immediately from the construction of the improvement, and must not proceed from some supposed or shadowy benefit to be derived in the dim and distant future.

It is true that the assessors in the case at bar testify that in their opinion the lands in question were benefited. But, when their testimony is weighed in the light of the uncontroverted evidence, showing the situation of the lands with respect to the road, and the natural barriers which render it impracticable for the lands to be served by the road, our common experience leads us to the con-elusion tliat no special benefits will accrue to tbe lands in question from tbe improvement of tbe road.

Judge Wood and myself therefore respectfully dissent.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Harrison Electric Company v. Citizens' Ice & Storage Company.
    Opinion delivered July 11, 1921.
    1. Public seRvice commission — notice op change op rates op public utility. — Under Crawford and Moses’ Dig. J 1612, providing that public utilities may not change their rates “except after 30 days’ notice to the [Corporation] Commission and the public,” held the filing of a schedule of changes in the rates of an electric light company was sufficient notice to the Commission and to the public.
    2. Public service commission. — when new rates become effective. — Where an electric light company filed a schedule of new rates with the Corporation Commission, such rates became effective upon the maturity of the period of thirty days specified in the statute, unless the Commission suspended the rates pending a hearing.
    3. Public service commission — new rates superseding contractual rates. — Where a public utility filed a schedule of -increased rates with the Corporation Commission which became effective after 30 days, the new rates superseded contractual rates theretofore established, as there could be no valid contract against the power of public control by the Corporation Commission.
    Appeal from Boone Chancery Court; Ben F. McMa-hem, Chancellor;
    reversed.

      Claud A. Fuller, for appellant.
    Tbe court should have sustained demurrer to paragraph 3 of appellee’s reply, alleging that tbe Corporation Commission bad no authority to change rates in abrogation or impairment of an existing contract. Such contracts are subject to tbe power of the State to regulate public utilities. 145 Ark. 205.
    Tbe notice of tbe application for an increase in rates was published twice in 2 weekly newspapers as required by tbe Commission. The act provides for a contest of rates before tbe Commission and for an appeal.

      The alleged contract was yerbal, and was entered into without authority by appellant’s secretary and manager. All rates were subject to change by the Commission. 110 Atl. 78.

      Guy L. Trimble, for appellee.
    1. Rates could not be changed except after 30 days ’ notice. Acts 1919, p. 417. See also Crawford & Moses’ Dig. § 6809. This notice is mandatory. 104 Ark. 298; 131 Ark. 429; 67 Ark. 43. The cases in 110 Atl. 778 and 145 Ark. 205 do not deal with notice. When constructive notice is given, the statute must be strictly complied with. 30 Ark. 723. The record should show at least four weekly publications. 39 Ark. 61.
    2. Affirmative action by the Commission was necessary before the rate could he in effect. 145 Ark. 205 and 110 Atl. 778 are not in point as this question. Sec. 7 of the act provides that no rates can be changed without authority of the Commission. No order was made in this case.
    3. On the cross-appeal, the damages of $100 awarded to appellee was insufficient.
   McCulloch, C. J.

Appellant is a domestic corporation owning and operating the electric light plant at Harrison, Arkansas, and appellee, Citizens Ice & Storage Company, is an industrial consumer of electric current and a patron of appellant. Appellee claims the right under a contract with appellant’s predecessor to obtain electric current for its manufacturing plant at the maximum rate of $400 per month. ■ Appellant changed the rate on April 1, 1920, after having filed the same with the Corporation Commission, but appellee refused to pay the increased rate. Appellant then cut off the supply of electric current, and appellee instituted this action in the chancery court of Boone County to enjoin appellant from cutting off the current and to recover damages in the sum of $2,000 for the interference with its business in cutting off the current. Appellant answered, setting up its change of rates pursuant to the statutes and under an-tliority from the Corporation Commission. On the final hearing of the cause, the chancery court decided that the change of rates was void for the reason that proper notice had not been given by appellant in accordance with the statute and rendered a decree in favor of appellee enjoining appellant from maintaining the increased rates and for the recovery of damages in the' sum of one hundred dollars.

The contention of appellee in support of the court’s decree is that the statute creating the Corporation Commission and conferring jurisdiction over public utilities requires that before a rate can be changed there must be an affirmative order by the commission authorizing it, and that there must be a notice published weekly for thirty-days, and that .the statute was not' complied with in either of these respects. We think that this is not the proper construction of the statute. Crawford & Moses’ Digest, chapter 37; Acts 1919, page 411. The statute confers jurisdiction on the commission over all public utilities in the State with power to control and regulate rates of charges and other matters in connection with service to the public. Section 7 of the act of 1919, which is section 1612 of Crawford & Moses’ Digest, reads as follows:

“No person, firm or corporation subject to the provisions of this act shall modify, change, cancel or annul any rate, joint rates, fares, classifications, charge or rental, except after thirty days’ notice to the commission and the public, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares or charges shall go into effect; provided, the commission may enter an order prohibiting such person, firm or corporation from putting such proposed new rates into effect pending hearing and final decision of the matter by the commission, and whenever there shall be filed with the commission any schedule proposing a change in any rates, charges or regulations, the commission shall have, and it is hereby given authority, either upon complaint or upon its own initiative upon reasonable notice, to enter upon a hearing concerning the propriety of such rate, charge or regulation; and, pending such hearing, and the decision thereon, the commission, upon filing with such schedule, and delivering to the carrier or carriers or public service corporation affected thereby, a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate or charge, but not for a longer period than .six months beyond the time when such rate, fare or charge, or regulation would otherwise go into effect; and after full hearing, whether completed before or after the rate, charge or regulation' goes into effect, the commission may make such order in reference to such rate, fare, charge or regulation as shall be deemed proper and just. Provided, that if said commission shall suspend the operation of any such schedule, and defer the use of such new rate or charge, as herein described, then the person, firm or corporation making such new rate may file with the commission its bond, to be approved by the commission, conditioned that it will pay over in money to the commission for the use and benefit of the persons or patrons entitled thereto the difference between the sums it shall collect under such new rate and the sums which would have been collected under the rate finally adjudged reasonable and just, with interest upon such difference at the rate of eight per centum per an-num. Upon the filing of said bond, the order of the commission suspending such new schedule or charge shall become inoperative until final adjudication of the max ter.”

It will be observed that, while the statute provides that no change in the rates shall be made “except after thirty days’ notice to the commission and the public,” there is no specification as to the method in which the notice is to be given. The contention of counsel for ap-pellee is that the provision for notice in this statute, is controlled by the provision of the statute with reference to the length of time for publishing legal notices (Crawford & Moses’ Digest, § 6809); but this 'Contention, is obviously unsound, for the reason that the section just cited only fixes the number .of publications and does not supply any other defects in an imperfect provision for notice. The section we are now dealing with does not specify either the method or place of the publication. The only reasonable interpretation of the statute is that the framers meant that the filing .of the schedule in the prescribed form with the commission was sufficient notice to the commission and to the public. This is in accord with our decisions to the effect that notice must be taken of all proceedings and regulations promulgated by public boards. Kansas City Southern Ry. Co. v. State, 90 Ark. 343; Cazort v. State, 130 Ark. 453. The statute is patterned, to a considerable extent, after the Federal statute creating the Interstate Commerce Commission- and regulating its proceedings, and it has been decided, not only by the Interstate Commerce Commission, but also by the Supreme Court of the United States that the filing of a schedule of rates by a common carrier with the commission constitutes notice to the public and puts the new rates into operation. Texas Railway Co. v. Cisco Oil Mill, 204 U. S. 449; Kansas City So. Ry. Co. v. Albers Comm. Co., 223 U. S. 573; U. S. v. Miller, 223 U. S. 579; Berwind-White Coal Mining Co. v. Chicago & Erie Rd. Co., 235 U. S. 371. Nor does the statute require an affirmative order of the commission authorizing that the new rates be put into effect. The rates become effective upon the maturity of the period of thirty days specified in the schedule, unless there is an order of the commission suspending the rates pending a hearing. Suburban Water Co. v. Borough of Oakmont (Penn.), 110 Atl. 778.

Jurisdiction is conferred on the commission to institute an investigation on its own initiative or to grant a hearing on the protest of a patron. The fact that the changed schedule becomes effective does not deprive the patrons, however, of an. opportunity to appear at any time to contest the rates fixed in the new schedule. The rates thus established are not final, and it is the privilege of any patron or of the commission itself on its own initiative to contest the correctness of the rate. Considering the statute in this light, it is clear that the framers of the act did not intend to require the publication of a formal notice, nor that the commission should make an order before the rates became effective. It appears from the record in the present case that the commission made a ruling requiring that in cases of local public utilities there must be publication for two insertions in a weekly newspaper, and the proof shows that this rule of the commission was complied with.

We áre of the opinion, therefore, that the schedule of increased rates promulgated by appellant was valid, and, the statute having been complied with, the new rates superseded any contractual rates theretofore established between the parties. There could be no valid contract as against the power of public control by the commission. It would not constitute an impairment of the obligation of the contract for the new rates to be put into effect under the control of the Commission. Camden v. Arkansas Light & Power Co., 145 Ark. 205; Clear Creek Oil & Gas Co. v. Fort Smith Spelter Co., 148 Ark. 260.

It follows that the decree of the chancery court is erroneous, and the same is reversed and the cause remanded with directions to enter a decree dismissing the complaint of appellee for want of equity, and for further proceedings not inconsistent with this opinion.


author: Wood, J.

text:
    Markham v. State.
    Opinion delivered July 11, 1921.
    1.- Criminal law — argumentative instructions. — It was not error to refuse instructions requested by appellant which were argumentative in form.
    2. Criminal law — repetition op instructions. — It was not error to refuse instructions asked by appellant where instructions given by the court covered the same subject-matter.
    3. Intoxicating liquors — manufacture—instruction.—An instruction, in a prosecution for the crime of manufacturing, and being interested in the manufacture of, intoxicating liquors, that “the fact that the parties, if it is a fact, that they visited the still frequently or any at all, are only circumstances that the jury may consider in arriving at their guilt” was not open to a general objection as assuming the defendant’s guilt.
    4 Criminal law — trial—comment on defendant’s failure to testify. — In a' prosecution for manufacturing intoxicating liquor a statement by the prosecuting attorney that none of the defendants “denied that they went to the still” was not objectionable as a comment upon the defendant’s failure to testify, within the prohibition of Crawford and Moses’ Dig., § 3125.
    Appeal from Pike Circuit Court; James ■8. Steel, Judge;
    affirmed.

      W. S. Goblents, for appellant.
    1. • The court erred in refusing appellants’ prayers for instructions. The court’s instruction was equivalent to a direction of a verdict. It is error for a court in its charge to ignore the bearing which certain facts have on the issues involved. 14 E. C. L. 794. Accused is entitled to have his instructions given in his own language if they correctly propound the law applicable. 14 E. C. L. 806.
    2. Argument of prosecuting attorney was a reference to 1 his failure of the defendant to testify. 10 E. O. L. 888; 83 Miss. 488; 89 Ark. 391.

      J. S. Utley, Attorney General, Elbert Godwm, assistant, and W. T. Hammock, Assistant, for appellee.
    1. Appellants’ refused instructions were covered by those given by the court.
    2. The argument of the prosecuting attorney was not within the prohibition of the statute. 108 Ark. 191; 96 Ark. 177; 2 E. C. L. 429. •
   Wood, J.

The appellants were separately indicted at the March term of the Pike County Circuit Court for the crime of manufacturing and being interested in the manufacture of intoxicating liquors. The cases were consolidated for trial.

J. E. Chaney testified that he was the sheriff of Pike County, and was acquainted with the appellants. Some time in February, 1921, he discovered a still near Franklin’s sawmill, about three hundred and fifty yards from Perry Franklin’s house. He saw five persons coming away from the still on Thursday, and on Friday he again saw five persons at the still, among whom were the appellants. “They were working around there — brought up a little turn of pine and were working around the furnace; filled up the boiler, put the cap on, wrapped a rag around it and walked away.” When the parties who were at the still on Thursday went away, witness went down there and found a hog in the pen which seemed to be pretty helpless, intoxicated. Witness also found a lot of barrels, boxes and about two or three hundred gallons of beer. Later, on Friday night, witness saw some parties go past the still and saw them go back carrying some glass jugs. One of the persons was the size of Jewell Sparks, and the other was the size of Green.

Another witness testified that he saw Jewell Sparks at the still. He had a bucket. Witness heard him hit the bucket against the barrels there, and thought he Was getting a bucket of water.' When he got back up to Perry Franklin’s house, he heard one fellow say, “If that is not enough, I will go back and get some more.” The parties he saw going to the still that night were carrying jugs. One of the parties corresponded in size with Jewell Sparks and another with Green or Martin. ' It was shown that the appellants were arrested on Sunday, and that some bottles and glass jugs were found in a .sack at Perry Franklin’s house, and the beer when destroyed on Sunday was ready to run.

Perry Franklin testified for the appellants to the effect that he had been running the sawmill mentioned about two months. He discovered a still near his home on Monday before he was arrested on Sunday. He went to the still on Tuesday and looked around a little and drank a little beer; went back on Thursday and got a sow out of the pen where the still was; that on Friday appellants and others working at the mill left the mill and went to witness’ house. Witness was not at the still on Friday. Jewell Sparks did not bring a bucket of beer to his house. Witness didn’t tell appellants about the still, and thejr were never at the still, so far as witness knew. Witness stated that on Friday evening he, Ben Davidson, and the appellants left the mill together. Some of them had been drinking at the mill that week. It was shown by other witnesses on behalf of the appellants that the mill closed down about five o’clock on Friday evening and that in about thirty minutes after closing time the appellants came back to the mill. In rebuttal, Matthew Cummins testified that he heard Jewell Sparks admit that he had frequented the still. Sparks said he went up there and carried a bucket of beer on Thursday evening to the mill; that when he got to court he was going to tell that he went up there twice after beer, and if they stuck him for it he would just have to go.

The appellants asked the court to grant the following prayers for instructions:

“The mere fact, if shown, that these boys went there and drank beer would not be sufficient to convict. You are instructed if you find from the evidence in this case beyond a reasonable doubt that the defendants frequently visited the still, drank beer there at it, are circumstances which the jury may consider with all the other facts and circumstances in determining whether or not they were interested in the manufacture of intoxicating liquors.
“You are further instructed, gentlemen of the jury, that, even though you should believe that these parties visited the still and drank beer, or carried beer away from tlie still, from this fact alone you can not convict the defendants; but it would be a mere circumstance which you may consider, with all the other facts and circumstances in the case, and, unless you are convinced beyond a reasonable doubt, notwithstanding although you should believe they visited the still and drank beer, that they manufactured or were interested in the manufacture of intoxicating liquors, you will acquit the defendants.”

Mr. Rountree, one of the attorneys for the appellants, thereupon remarked: “The fact alone that they were there and drank beer is not of itself sufficient to warrant the jury in finding appellants guilty.” To which the court replied: “That is for the jury to .say — that is a circumstance they may consider.”

The court refused to grant the above prayers, saying: “I want to give one along that line.” The appellants duly excepted to the ruling of the court. The court, among others, gave the following instruction:

“The fact that the parties, if it is a fact, that they visited tbe still frequently, or any at all, are only circumstances that the jury may consider in arriving at their guilt. You must believe, beyond a reasonable doubt, from all the facts and circumstances in evidence, that the defendants did manufacture the whiskey, or were interested, or aided or abetted as defined by the instructions I have read to you. The law presumes the defendants innocent until their guilt is proven beyond a reasonable doubt.”

In the course of his argument the prosecuting attorney used the following language: “We find the five leaving the mill and going in the direction of the still. None of them denied that they went to the still but Perry Franklin.” The appellants objected to the argument of the prosecuting attorney and asked that the jury be instructed not to consider it for the reason that “it was a direct reference to the failure of the defendants to testify.” The court overruled the objection and appellants duly excepted. The jury returned a verdict of guilty against the appellants and fixed their punishment at one year in the penitentiary. From the judgments of sentence based on these verdicts is this appeal.

1. The court did not err in refusing the appellants ’ prayers for instructions. These prayers were argumentative in form and calculated to mislead the jury. The phases of the case presented by the testimony which these prayers of the appellants were intended to submit were covered by the instruction which the court gave “along that line.” The court told the jury that “the fact that the parties, if it is a fact, visited the still frequently, or any at all, are only circumstances that the jury may consider in arriving at their guilt. ’ ’ When this paragraph is read in connection with the succeeding paragraph, it is clear that the court told the jury in substance that they should take into consideration the testimony tending to show that the appellants visited the still frequently and all the facts and circumstances in evidence in determining whether or not the appellants were guilty of the crime charged.

Learned counsel for appellants contend that the court instructed the jury in the first paragraph of the instruction to find the defendant guilty. That paragraph might have been more happily phrased if the attention of the court had been drawn to the phraseology to which the appellants ’ counsel now for the first time urge a specific objection. The instruction was not inherently erroneous. It was correct to tell the jury that if the appellants frequently visited the still this was a circumstance which the jury might take into consideration in determining the issue as to whether or not the appellants were guilty of the crime charged. The language used by the court was tantamount to so instructing the jury, and, when the instruction is considered as a whole, and in connection with the remarks of the court, it is evident that such was the court’s purpose. If the appellants believed that the instruction was susceptible of the construction which they now give it, it was their duty to call the attention of the court to such particular construction by specific objection. This they did not do, and the prayers they presented do not have that effect. St. L., I. M & S. Ry. Co. v. Holmes, 88 Ark. 181; St. L., I. M. & S. Ry. Co. v. Dallas, 93 Ark. 209; St. L., I. M. & S. Ry. Co. v. Stacks, 97 Ark. 405; Thompson v. Southern Lumber Co., 104 Ark. 196, and other cases cited in 4 Crawford’s Digest, § 110, p. 5027.

2. The remarks of the prosecuting attorney should not be construed as a comment upon the failure of the appellants to testify, and hence these remarks do not contravene the provisions of our statute to the effect that the failure of an accused to testify shall not create any presumption against him. Section 3123, Crawford & Moses’ Digest.

In Culbreath v. State, 96 Ark. 180, the attorney representing the State, in his closing remarks, said: “Where was the defendant that day? He has never seen fit to say. He has not shown by any one where he was between the hours of 10 o’clock in the morning and 1:30 in the afternoon.” Concerning these remarks we said: “Taking the whole statement together, we do not think it can fairly be construed as a comment or criticism upon. the defendant’s failure to testify in his own behalf, or as calling attention to that fact. It was merely an expression of the opinion of counsel that the defendant had not adduced evidence accounting for his whereabouts during the hours named.”

In Davidson v. State, 108 Ark. 191, the appellant, Davidson, did not testify in his own behalf. The sister of the deceased testified to a certain conversation the appellant had with the deceased. The prosecuting attorney referred to this testimony in the following language: “You have a right to consider this conversation with Miss Barham in presence of her sister, gentlemen of the jury, so unexplained by any one and unexplained and undenied by any one, and I call on them now to explain this conversation, if true.” Concerning these remarks, we said: “It is not a comment or criticism on the defendant’s failure to testify in his own behalf, but was the expression of the opinion of counsel that the testimony had not been rebutted, and it should be accepted as true. ’ ’

Now, in the case at bar it was shown that there were two others besides the appellants that were seen leaving the mill and going in the direction of the still. Ben Davidson was one of the five. He was not on trial with the appellants, and was a competent witness in their behalf to prove that neither he nor the appellants were at the still on the occasion mentioned, if such were the facts. The appellants, did call Perry Franklin, who was also designated as one of the five who were seen leaving the mill and going in the direction of the still, and he testified that he was not at the still on Friday. He was asked whether the appellants were at the still and answered, “Not that I know of.”

In Davis v. State, 96 Ark. 7, the appellant was charged with the crime of abortion. Two witnesses had testified about the conversation appellant had with them concerning the alleged crime. The prosecuting attorney referred to this testimony in the following language: “He (the defendant) told Bently and Doctor Cunningham how he had administered the medicine to her to produce an abortion, and it is undisputed and undenied in this case, and he can not deny it.” In that case the defendant did not testify. Concerning the above remarks, we said: “These remarks, we think, were but the expression of the opinion of the State’s attorney as to the weight of the testimony of these two witnesses and could not fairly be construed to refer to the fact that the defendant had not testified in the case, and did not tend to create any presumption against him by reason of his failure to testify.”

In the light of the above oases we are convinced that the remarks of the prosecuting attorney under review here should not he construed as a comment upon the failure of the appellants to testify, hut rather as an expression of his opinion as to the weight of the evidence adduced on the part of the State to the effect that the appellants and two others left the mill and were seen at the still on a certain day mentioned hy the witnesses. The purport of the argument couched in-the remarks of the prosecuting attorney was that the testimony tending to show that these parties left the mill and were at the still on that day was undenied and uncontroverted. There were other parties besides the appellants said to he at the still on that day. One of these parties -was called on by the appellants to testify, and he denied that he was there, but did not categorically deny that appellants were there. His testimony was to the effect that if the appellants were there he had no knowledge of the fact, and the other party said to be in the company of appellants on that -occasion was not called on to testify. Hence the prosecuting attorney argued that the presence of the appellants at the still on that day,-as proved by the State, neither the appellants nor any one else denied. If the appellants were not at the still as proved by the State, it was a fact which, as the circumstances disclosed, they might have adduced testimony tending to prove by other witnesses than themselves. In this respect the case differs from the cases of Curtis v. State, 89 Ark. 391, and Hoff v. State, 83 Miss. 488, upon which counsel for appellants relies.

In the first of those cases the appellant was charged with the -crime of rape, and in the second case with the crime of seduction. The remarks of the prosecuting officer in those cases to the effect that the crimes charged were not denied were correctly held as referring to the failure of the defendants to testify because in cases of that character, aside from the general denial involved in a plea of not guilty, the only way that such offenses could be denied would be by the defendants themselves denying the charges on the witness stand.

In the case of Starnes v. State, 128 Ark. 302, the appellant was charged with grand larceny. He did not testify at the trial, and in his concluding remarks the prosecuting officer said: “The defendant has not denied a single allegation of the indictment. ’ ’ In that case we held that any prejudice resulting from the remarks of the prosecuting attorney was removed by instructions to the jury, and we announced the general doctrine that it was improper and presumptively prejudicial for the prosecuting attorney to call the attention of the jury to the failure of the accused to testify. But because of the instructions of the trial judge removing any possible prejudice that might have resulted from these remarks we were not called upon to decide and did not decide in that case whether the remarks of the prosecuting attorney were in fact a comment upon the failure of the defendant to testify. The effect of the holding in that ease is that if the remarks* there objected to could be considered as obnoxious to the statute there was no prejudicial error in the ruling of the court in refusing to rebuke the prosecuting officer for having made them because the court eliminated all possible prejudice by explicit instructions in telling the jury that they could not infer guilt because of the defendant’s failure to testify.

The case for decision on the record now before us is ruled by the cases of Culbreath v. State, supra; Davis v. State, supra, and Davidson v. State, supra. See, also, Blackshare v. State, 94 Ark. 548, 558.

We find no error. The judgments 'are therefore affirmed.


text:
    Inter-Southern Life Insurance Company v. Ransom.
    Opinion delivered July 11, 1921.
    1. TRIAL — EFFECT OF BOTH PARTIES REQUESTING PEREMPTORY INSTRUCTION. — Where both parties asked a peremptory instruction and did not request other instructions, the only question for us to determine is whether the evidence is legally sufficient to sustain the verdict directed by the trial court.
    2. Appeal and error — conclusiveness of court’s finding. — A finding of the trial court based upon conflicting evidence is conclusive on appeal, and the evidence must be given its strongest probative force in favor of the finding.
    3. Insurance — meeting of minds. — Evidence held to sustain a find' ing either that the policy issued and delivered to insured was the kind of policy applied for or, if it was different, that it was accepted by insured.
    4. Insurance — stipulation as to delivery to insured while in good health — Where an application for life insurance provided that “no contract of insurance shall be deemed made, and no liability upon the part of the company shall arise, until a policy shall be issued and be delivered and be personally and manually received by me, and the first premium thereon actually paid, all during my lifetime and while I am in good health,” such provision did not constitute a warranty, nor a condition precedent to a binding contract of insurance.
    5. Insurance — completion of contract. — Where, by the provisions of an insurance contract, certain conditions must exist and certain things be done for the benefit of the insurer before the policy can be delivered and the contract be consummated, the agent to whom is committed the duty of delivering the policy and thus completing the contract must see that the requirements of the policy in these particulars are complied with before the policy is delivered, and a delivery of the policy by such agent, in the absence of collusion with the insured to defraud the company, and with knowledge of the facts showing that the conditions did not exist, will constitute a waiver of these conditions and requirements.
    6. Insurance — delivery of policy. — In the absence of limitations upon the authority of an agent whose duty it was to deliver a policy of life insurance, the agent had the right to select the place of delivery and the messenger to convey the policy to the insured.
    Appeal from Johnson Circuit Court; A. B. Priddy, Judge;
    affirmed.

      Hartsill Ragon, for appellant.

      The court erred in overruling plaintiff’s motion to require the complaint to be made more definite in regard to delivery of the policy. Under the pleadings the issue hinged upon a manual delivery of the policy to insured. The evidence showed a delivery of the policy by a stranger to insured’s wife. This occasioned a surprise to appellant. 71 Ark. 197; 55 Ark. 567.
    There was never a contract between the parties. See 115 Fed. 81. The insured never accepted the policy. 27 S. E. 38. To be effective, an acceptance of an application must be in the very terms offered. 14 R. C. L. 895; 12 L. R. A. (N. S.) 421. It is the duty of insured to examine his policy within a reasonable time. 81 Ark. 269; 86 Ark. 283. There was no meeting of minds. Ill Ark. 342.
    There was not such a waiver of its rights by the company as to bind it. The application was a part of the policy. The provision as to delivery and receipt of the policy while in good health was not a mere representation. 133 Ark. 348; 236 Ill. 444; 59 Ill. 123. It constituted a warranty. There was no waiver of such warranty. 3 Cooley, Brief on Laws of Ins., p. 2367. Delivery to the wife did not constitute delivery to insured. 187 Pac. 405. The agent was not authorized to waive a warranty as to delivery.

      Webb Covington, for appellee.
    There was a delivery and acceptance of the policy. The agent knew insured was sick when he delivered the policy. This was a waiver of the provision as to delivery to insured while in good health. 217 N. Y. 336; 190 Ill. App. 604; 111 Ark. 442; 129 Ark. 240; 162 S. W. 10; 129 Ark. 450. The agent of insurer had a right to select his own method of delivery.
   Wood, J.

On the 13th day of July, 1920, Isaac H. Ransom made application to the appellant for a policy of life insurance in the sum of $1,000 in favor of his wife, the appellee. The policy was issued on August 20, 1920, and was sent to appellant’s agent, H. D. Coffee, at Clarks-ville, Arkansas, some time prior to the 25th day of August, 1920. Coffee delivered the policy to one Earle Mardis, who was the manager of a coal mine at which Eansom worked, and Mardis delivered the policy to the appellee. Eansom.became ill on the 5th of August, 1920, with typhoid fever, and died on September 16,1920. This action was instituted by the appellee against the appellant on the policy. The appellant answered denying all material allegations of the complaint and' set up in defense, among other things, the following provision of the application :

“Second. That no contract of insurance shall be deemed made, and no liability on the part of said company shall arise, until a policy shall be issued and be delivered, and be personally and manually received by me, and the first premium thereon actually paid, all during my lifetime and while I am in good health, and that for the first full annual premium paid thereon, the protection thereunder shall cease and end one year and one month (not less than thirty days) from the date of the policy issued hereunder, at 12 o’clock noon, standard time, reckoned at my domicile at this time, whether a full year shall have expired from the date such protection began thereunder or not. ’ ’

The appellant alleged that the policy of insurance was not issued and delivered, and “personally and manually received” by Isaac H. Eansom and the first premium paid during his life and while he was in good health; that at the time of the issuance of the policy and at the time of its alleged delivery, Isaac H. Eansom was in a poor state of health, confined to his bed, suffering from a critical illness from which he grew progressively worse until his death.

The appellee testified that she was the wife of the insured. She identified the policy which is the foundation of the action and stated that same had been delivered to her on the 25th or 26th of August, 1920. It was delivered through Mr. Coffee and was brought to her home by Earle Mardis-. Her husband was taken sick on the 5th of August. She was asked, “Did you read him the policy?” and answered, “Yes, sir; I don’t know that I read it word for word, but I went over it with him. He knew that I had it.” She was further asked: “Q. He was in a condition of health at that time that you couldn’t worry him with a policy?” “A. I didn’t deem it necessary, and I didn’t do it. I didn’t know it was necessary, while he could have understood it, but I didn’t deem it necessary.” She further testified in answer to questions that her husband understood that she had the policy; that he was not unconscious until about twelve hours before his death. He would have understood the policy if she had gone into details with him, which she didn’t do because she didn’t deem it necessary. She didn’t sign any receipt for the policy.

The attending physician testified that Ransom was afflicted with, and died of, typhoid fever and its complications.

H. D. Coffee testified that he was the agent .of the appellant at Clarksville, Arkansas, and received through the mail from the appellant the policy for delivery to the insured. He didn’t deliver it personally to the insured, but gave it to Earle Mardis to deliver. He didn’t know the exact condition of the health of the insured at the time — knew that -he was sick — had been told that he was — had never seen him and didn’t know how serious his illness was. Witness was asked whether he discussed with Mardis the condition of Ransom’s health at the time, and answered that he couldn’t tell about that. He was asked whether he and Mardis arranged to deliver the policy so that the witness would not know about the condition of Ransom’s health and answéred, “There was no arrangement made any more than I handed the policy to him and asked him if he would take it up there. He said he was going .to see how he was getting along.” Witness did not present the insured or his wife with the receipt, for the policy. Witness stated that he wouldn’t ask the appellee to forge her husband’s name on a post card receipt in which it stated that he was in good health. Witness further testified that the kind of insurance Eansom applied for was known as “compound optional ordinary life with complete disability and double indemnity benefit. ’ ’ The premium for the policy he applied for was $34.45. He was ■ asked if there was a little notice with the policy, and stated that he thought there was, and that he tore the same out because he didn’t think it had any business in there.

The vice president of the appellant testified that the application was for the kind of policy as before stated; that the company was unable to deliver a policy of that kind for the reason that Eansom was a mine foreman. The appellant issued another policy, .the kind it felt it could issue and deliver to one in that occupation. The premium on the policy applied for was $34.45 with an '80-cent war tax. The premium on the policy sent to Eansqm was $32.22 per thousand with an 80-cent war tax. There was a difference in the two kinds of policies, consisting of the complete disability and double indemnity features, which the witness explained. The witness stated that the appellant always sent notices on all policies showing that its agents were required to receive the personal signature of the insured and return the same to the company; that the appellant did not receive the card from Eansom countersigned.

Another witness testified that he, in company with Coffee, solicited the application of Eansom for insurance at the latter’s home on the 13th day of July, 1920; that Eansom said that he would not take the “compound optional ordinary life” policy. Witness explained to him and he finally applied for the policy with double indemnity and complete disability features, another policy from that which was issued; that was the only one he would accept. The witness further stated that he delivered several policies in Clarksville with the green sheet .on it. That receipt was to show that the insured received it during the time of his good health and that it was the same policy he had applied for. The instructions to the agent were to have the insured sign this receipt personally and mail it to the home office.

At the conclusion of the testimony the appellee asked the court to instruct a verdict in her favor, and the appellant likewise asked the court to instruct a verdict in its favor. The court directed the jury to return a verdict in favor of the appellee for the full sum as shown by the fact of the policy, and from a judgment in favor of the appellee for that sum is this appeal.

1. It is a close question of fact in this case -to determine whether the minds of the parties met upon the contract of insurance as evidenced by the policy which is the basis of this action. As both parties asked a peremptory instruction in their favor and did not request other instructions, the only question for us to determine is whether the evidence is legally sufficient to sustain the verdict directed by the trial court. St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71; St. L., I. M. & Sou. Ry. Co. v. Ingram, 118 Ark. 377; Hall v. Harrell, 136 Ark. 329; Gibson v. Allen-West Commission Co., 138 Ark. 172; Oil Trough Gin Co. v. Hines, 141 Ark. 135.

Even if the finding of the court in directing the verdict on the facts be against the decided preponderance of the evidence, it is not our province on appeal to determine where the preponderance lies. The finding of the trial court based upon conflicting evidence is conclusive on appeal; and the evidence must be given its strongest probative force in favor of the finding. International Harvester Co. v. Layton, 148 Ark. 156; Gossett v. Gossett, 112 Ark. 47, and cases there cited.

Now, applying the above rules to the facts under re - view, we are convinced that there is substantial testimony —legally sufficient evidence — to sustain the directed verdict. While both the agents who solicited the application of Ransom for insurance testified that he applied for a policy known as the “compound optional ordinary life” with “complete disability and double indemnity benefits,” yet the application itself shows that the kind of policy applied for was ’C. O. 0. L. A copy of the application was attached to the policy which bears the signatures of Coffee and Kavanaugh as witnesses. It was made an exhibit to the complaint, was identified by the appellee and introduced in evidence. The letters, C. 0. 0. L., as explained, were intended to denote that the kind of insurance to be issued to Ransom was the ‘ ‘ compound optional ordinary life,” and that was the kind of policy, as is shown by the policy itself, and the testimony of witnesses, that was issued and sent to the agent for delivery to Ransom. In the application attached to the policy that was delivered to Mrs. Ransom the letters C. D. and D. I., which were intended to denote “complete disability and double indemnity,” were canceled or erased by the stroke of a pen. There is no explanation in the.record as to when or why. this was done. The witnesses who witnessed the application do not explain it, and the voice of the insured is hushed by death. In the absence of any explanation in the record as to why these letters were canceled, the presumption must be indulged that they were stricken from the application before it was signed by the applicant and presented to the company. It was admitted by counsel for appellant that the application attached to the policy was a photographic copy of the application made by Ransom to the appellant.

The issuance of the kind of policy called for by this application with- the complete disability and double indemnity benefits omitted therefrom also tends to prove that the application was made for the kind of policy that was issued. See Jenkins v. International Life Ins. Co., 149 Ark. 257. True, the vice president of the company also testified that tlie complete disability double indemnity policy was applied for, and that the company did not issue this, but did issue the policy in suit instead, which was sent. to be delivered to the applicant; that this was a proposal for that hind of insurance, instead of the kind applied for. But, as before stated, the application itself and. the issuance of the policy were facts tending to prove that the.applicant applied for the kind of policy that was issued and sent to their agent for delivery. If we are mistaken in this, even if the policy issued and sent to the agent for delivery to Ransom was not the policy applied for by him, and if this policy can be considered as but a proposal for a different kind of insurance than that applied for, still there was some substantial testimony tending to prove that, as such proposal, it was accepted by Ransom. He had applied for insurance and had paid a sufficient sum of money to cover the premium for the policy that was issued, as well as the other kind. The difference between the two according to the testimony had been fully explained to him before his illness.

Mrs. Ransom testified that the day or the day after the policy was received she went over it with her husband. She didn’t read every word of it, but he knew that she had it. He was taken sick on the 5th of August, 1920, and was not unconscious until about twelve hours before his death, and during the fourth week of his illness, which would be 'about the time the policy was delivered to her, they thought he was going to recover. He could have understood the contents of the policy. While he could have understood it, she didn’t think it necessary to read it word for word to him. He retained the policy and didn’t ask that the check or money given in payment of the premium be returned to him. He lived for twenty-one days.

Now, if Ransom were alive and seeking to cancel this policy on the ground that same had not been accepted by him, would not the above testimony be some substantial evidence on such an issue to prove that he had accepted the policy? It occurs to us that, if such were the issue, the above testimony would he sufficient to at least sustain a finding by, the trial court that Ransom had accepted the policy. If so, it is also sufficient to sustain the finding by the trial court on the issue here presented as to whether or not the policy had been accepted by Ransom. We conclude therefore that there was testimony tending to prove that the policy sued on was accepted by the insured and that the minds of the insured and the insurer for a valuable consideration had met upon all the terms of the contract evidenced by the policy.

2. There are provisions in the policy making the Application a part of the policy, and declaring that the policy and application constitute a contract between the parties. The application contained the following provision: “No contract of insurance shall be deemed made and no liability upon the part of the company shall arise, until a policy shall be issued and be delivered, and be personally and manually received by me, and the first premium thereon actually paid, all during my lifetime and while I am in good health. ’ ’

The appellant contends that the above provision, because of its peculiar language, constitutes a warranty and is in the nature of a condition precedent to any effective contract .of insurance. We believe that such a construction is contrary to our own cases and the law generally upon the subject. To be sure, the application is signed by the applicant for insurance, and, in that sense, he adopts its contents or provisions as his own; but in reality the form of the application is prepared by' the insurance company and. its language, except the blanks to be filled out in response to questions, is the language of the company. Similar provisions are usually found in all standard applications for policies of insurance and are inserted for the benefit of the insurer. The provision above quoted was wholly for the benefit of the appellant. There is nothing in the language used to constitute a warranty on the part of the assured, or a condition precedent to a binding contract of insurance.

In American Life & Accident Association v. Walton, 133 Ark. 348, we stated the law upon this subject as follows: “The doctrine of warranty in the law of insurance is one of great rigor and frequently operates very harshly upon the assured, and courts will never construe a statement as a warranty unless the language of the policy is so clear as to preclude any other construction.”

We find nothing in the special language of the provision under review which should constrain us to hold that the requirements set forth could not be waived by appellant, nor do we find anything in the peculiar language of this provision that can distinguish this case in principle from former decisions of this court, some of them quite recent. The doctrine of our cases is that where, by the provision of an insurance contract, certain conditions must exist, and certain things be done for the benefit of the insurer before the policy can be delivered and the insurance contract thus consummated, the agent to whom is committed the duty of delivering the policy and thus completing the contract must see that the requirements .of the policy in these particulars are complied with before the policy is delivered; that a delivery of the policy by such an agent in the absence of collusion with the insured to defraud the company, and with knowledge of the facts showing that the conditions did not exist and the things had not been done incident to delivery, as required by the policy, will constitute a waiver of those conditions and requirements. Kansas City Life Ins. Co. v. Ridout, 147 Ark. 563, and other cases there cited. See, also, Jenkins v. Ins. Co., 149 Ark. 257.

In the case of Illinois Bankers Life Assn. v. Rhodes, 147 Ark., 191, the policy was sent to the agent of the company “with authority to make delivery,” and we said: “This clothed him with all things necessary in connection with the delivery of the policy.”

In the case at bar no collusion of the agent with the insured is alleged or shown. There is testimony tending to prove that the agent whose duty it was to deliver the policy had knowledge of the fact that the insured was ill at the time the policy was delivered to Mrs. Ransom. It was also proved that he failed to comply, with the provision of the application requiring that the policy be “personally and manually received by the applicant” and disobeyed his instructions in having the policy delivered without having a receipt therefor signed by the insured. But this failure on the part of the agent to discharge his duty to the company did not avoid the policy, and, after its delivery, it will be conclusively presumed that such requirements were waived by the appellant. See Jenkins v. Ins. Co., supra.

3. There was no error in the ruling of the court in refusing to require the appellee to make her pleadings more definite and certain by stating the manner of the delivery of the policy, giving the name of the place where, and the person to whom the delivery was made. In the absence of limitations upon the agent’s authority whose duty it was to deliver the policy, he had the right to select the place of delivery and his own messenger to convey the policy to the insured. See Illinois Bankers Life Assn. v. Rhodes, supra; Jenkins v. Ins. Co., supra.

The record presents no error in the rulings of the circuit court, and its judgment is therefore affirmed.


author: Hart, J.

text:
    Boyd v. Epperson.
    Opinion delivered July 11, 1921.
    1. Wills — pretermitted child. — Under Crawford and Moses’ Dig., § 10507, if a testator omit the name of a child from his will, he will be deemed to have died intestate 'as to the omitted child, and such child will be entitled to recover the same portion of the father’s estate as would have descended or been distributed to such child if the father had died intestate.

      2. Adverse possession — possession op widow. — Where decedent’s heirs permitted his widow to reside on his land from the date of his death until her death, it being their duty to assign dower to her, her occupancy pending the assignment of dower was not adverse to such heirs.
    Appeal from G-rant Chancery Court; J. P. Henderson, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    This was an action in ejectment brought by appellees against appellants in the circuit court to recover possession of a tract of land.
    Appellants answered denying title in appellees and claiming title in themselves. They also pleaded the statute of limitations. On motion of appellants the case was transferred to the chancery court and heard there.
    Both parties claim title from the same source. The land was originally owned by Mack Harmon, who died testate in 1911 in Grant County, Arkansas, where the land in question is situated. Appellees claimed title to the land as the heirs at law of said Mack Harmon, deceased. Appellants claim title as heirs at law of their mother, who was the second wife of Mack Harmon, and who they claim took the land under his will at his death.
    All the parties interested are negroes. Mack Harmon and Miranda Harmon, his first wife, came to Grant County, Arkansas, from the State of South Carolina, and settled there. Mack Harmon brought to Arkansas with him his family, Miranda Harmon, his wife, and Rose Epperson, then Rose Harmon, a little girl about six years old. He first rented land/in Grant County and subsequently acquired, by purchase, the land in controversy, ín March, 1905, Miranda Harmon secured a divorce from Mack Harmon and forty acres of his land were decreed to her. Then Mack Harmon married the mother of appellants and lived with her until his death. He made a will and devised to Nora Sites twenty acres of land and the • balance to his wife. Frances Harmon. Nora Sites is the daughter of Rose Epperson, and Frances Harmon is the mother of appellants, they being her children by her first husband. • ■
    Miranda Harmon was a witness for appellees. According to her testimony, she was married to Mack Harmon in Lexington County, South Carolina, but does not remember the date of her marriage. Appellee, Bose Epperson, is her daughter by Mack Harmon, and she was born in South Carolina after the marriage. The witness does not remember how long, but it was something like a year or two after their marriage. The witness does not remember what year they came to Arkansas, but according to the white folks it was thirty-four or thirty-five years ago, and Bose was then- four or five years old. Mack always treated Bose as his daughter and so spoke of her to other people. Bose called her “mama” and Mack “papa.” Witness denied that she had told Joe Stouda-'mire-, or any one else, that Bose Epperson was not the daughter of Mack Harmon, but was the daughter of Hil-lárd Boseboro. She denied that she knew Joe Stouda-mire in South Carolina.
    According to the testimony of Bose Epperson, Miranda is her mother and Mack Harmon is her father.' They told her that she was born in South Carolina, and she said that she was too small to remember coming to Arkansas. Mack Harmon always called her daughter and always spoke of her as his daughter to his friends and acquaintances. The witness took the side of her mother in the divorce proceedings and never visited her father after he married Frances Boyd. Mack Harmon lived on the land of Frances Boyd until his death.
    Several white people, five or six in number, testified that Mack Harmon moved on a farm near them when he came to Arkansas in 1884 or 1885. He had with him, Miranda Harmon and Bose Epperson, then a little girl five or six years old, whom he represented to be his wife and daughter. He continued to treat and speak of them as his wife and daughter during all the time that he lived in .that neighborhood.

      Dr. J. M. Goodman testified that lie tad known Mack and Miranda Harmon and Rose Epperson for twenty-three years and had done their practice during that time; that he had frequently heard Mack talk about his family, and that he said that his family consisted .of himself, Miranda, his wife, and his daughter Rose. Mack referred to Rose as his daughter nearly every time that he visited the house.
    According to the testimony of Joe Stoudamire, he knew Mack Harmon and Miranda Harmon in Lexington County, South Carolina, and remembered that they were married there in 1883. Rose was living with her mother at the time her mother married Mack Harmon. Rose looked to he six or seven years .of age when Mack .and Miranda married. Witness came to Arkansas in 1888, and Mack Harmon and his family lived in South Carolina at that time. Witness did not know what time they came to Arkansas.
    According to the testimony of David W. Mays, Miranda Harmon told him that Hillard Roseboro was the father of her daughter Rose. Mack Harmon also told him this.
    Other negroes, who were well acquainted with Miranda Harmon, testified that she had told them that Hil-lard Roseboro was the father of Rose Epperson. Miranda Harmon denied this in every instance.
    A brother of Joe Stoudamire testified for appellees that Joe Stoudamire did not know Mack Harmon and his family before they came to Arkansas.
    Another witness testified that Rose Epperson told him that Hillard Roseboro was her father. Rose Epper-son denied this.
    The will of Mack Harmon failed to refer to or mention Rose Epperson or John Harmon.
    Mack Harmon devised twenty acres of the land owned by him in Grant County to Nora Sites, who is the daughter of Bose Epperson. The balance of the land he devised to his wife, Prances Harmon, the mother of appellants. After his death in 1911, Prances Harmon, his widow, moved on the land in controversy and lived there until her death in August, 1919.
    ■ E. H. Vance, Jr., D. E. Waddell and A. W. Jerni-gam, for appellants.

      W. D. Brouse, for appellee.
   Hart, J.

(after stating the facts). The chancellor found that Bose Epperson was the legitimate daughter of. Mack Harmon, deceased, and that she and John Harmon, her older half-brother, were the sole heirs at law of said Mack Harmon, deceased.

We. are of the opinion that the evidence sustained the finding of the chancellor. According to the testi-money of Miranda Harmon, Bose Harmon was horn after her marriage to Mack Harmon in South Carolina. The witness did not remember the date of her marriage to Maek Harmon, nor the date on which Bose was born. She remembered distinctly, however, that Bose was born after their marriage in South Carolina, and was four or five years of age when they came to Grant County, Arkansas. They rented land when they first came to Arkansas, and the white people from whom they rented land and others who knew them said that Mack Harmon always spoke of Bose as his own daughter. The family physician who knew them for twenty-three years said that Mack always spoke of Bose as his own daughter. The evidence of these witnesses tends to corroborate the testimony of Miranda Harmon. The testimony shows more than occasional conduct and declarations by Mack Harmon that he was the father of Bose. He spoke of and treated Bose as his daughter during the whole period of his residence in Arkansas. He devised to her daughter a part of his land after he had become estranged from Bose on account of the divorce from her mother. The whole course of his conduct shows- that he reconized Bose as bis daughter. The witnesses all said that Mack Harmon came to Arkansas in 1884 or 1885, and that Rose appeared to be five or six years of age at that time.

It is true that Joe Stoudamire and others testified that Miranda Harmon had admitted to them that Hillard Roseboro was the father of Rose, but we do not think their testimony is sufficient to overcome the testimony favoring the legitimacy of Rose. Joe Stoudamire testified that he knew Mack and Miranda Harmon and that they married in South Carolina in 1883. He said that Rose was six or seven years old when they married and that he came to Arkansas in 1888, leaving the Harmons still in South Carolina. His testimony is contradicted by all the witnesses for the appellees. They testified that Mack Harmon and his family came to Arkansas in 1884 or 1885, and that Rose then appeared to be only five or six years old. George Stoudamire, the brother of Joe, testified that Joe did not know the Harmons in South Carolina. The testimony is too long to be. set out in its entirety, but a careful consideration of it leads us, as above stated, to the conclusion that the chancellor was right in finding that Rose Epperson was the daughter of Mack Harmon and was born after his marriage to Miranda.

The will of Mack Harmon is copied in the transcript. The name of Rose Epperson is not contained in it, and no reference whatever is made to her. Under section 10507 of Crawford & Moses’ Digest, if a testator omits the name of a child from his will, he will be deemed to have died intestate as to the child omitted and such child shall be entitled to recover the same portion of her father’s estate as would have descended or been distributed to such child if the father had died intestate.

It follows then that because Rose Epperson was not named in her father’s will he died intestate as to her. The record is not very clear as to whether John Harmon was the son of Mack Harmon, but that does not make any difference. Rose Epperson conveyed a half interest in the land to him, and, as we have already seen, the chancellor was right in holding her to he the legitimate child .of Mack Harmon. She and John Harmon, then, were the only heirs at law of Mack Harmon, deceased, and inherited his property subject to the widow’s right of dower. Mack Harmon died in 1911, and his widow, Prances, then went on the land and resided there until her death in August, 1919. It is claimed that she thus acquired title to the land by adverse possession, and that appellants inherited the land from her. The widow did not acquire any title to the land by adverse possession. Under our statute it was the duty of the heirs to lay off and assign dower to the window. . Crawford & Moses’ Digest, § 3544.

Appellees permitted the widow to reside on the land from the date of her husband’s death until her death. It was their duty to assign dower to the widow, and the widow’s occupancy pending the assignment of dower was not an adverse holding. Brinkley v. Taylor, 111 Ark. 305. Therefore the statute of limitations did not begin to run in favor of appellants until after the death of their mother who was the widow of Mack Harmon, deceased.

It -follows that the decree must be affirmed.