author: Mehaffy, J.

text:
    Modern Woodmen of America v. Whitaker.
    Opinion delivered May 2, 1927.
    1. Evidence — opinion op nonexpert. — In an action by the beneficiary to recover on a life insurance policy, nonexpert witnesses may state their opinions as to the physical condition of deceased on the day when he took fraternal insurance certificate and stated that his health was good.
    2. Insurance — statement as representation.- — A written statement of the insured when he received a -benefit certificate that he was in good health, held to be a representation, and not a warranty, though the word “warranty” was used, and the court properly instructed the jury that plaintiff must prove that insured made no misrepresentations to secure the-policy.
    3. Appeal and error — conclusiveness op verdict. — In an action by the -beheficiary to recover on a life insurance policy, the jury’s finding that deceased was in good health when he received the policy and stated that his health was good, held conclusive, in view of the evidence, where the issue was submitted on instruc-itions that plaintiff must prove that no misrepresentation was made, and that defendant must prove that deceased was sick when he received the policy.
    Appeal from Boone. Circuit Court; J. M. Shim, Judge;
    affirmed.

      Truman Plants, Geo. G. Perrin, F. M. McDavid and Shouse & Rowland, for appellant.

      Woods S Greenhorn and E. G. Mitchell, for appellee.
   Mehaffy, J.

Thomas W. Whitaker, on the 2d day of February, 1925,. made application for membership and benefits in the Modern Woodmen of America, a fraternal benefit society, with its local Camp No. 13665, at Harrison, Arkansas, and executed the usual application form. On February 11, 1925, his application was acted on and certificate issued and forwarded to the clerk at Harrison, Arkansas, where it remained until the 6th day of April, 1925, when it was delivered to the insured by Cleve Coffman, clerk of the Modern Woodmen at the local camp at Harrison, Arkansas.

The application signed by the insured stated' that the answers were adopted as his own, and that he warranted that they were full, complete, and literally true, and that he agreed that the exact, literal truth of each should be a condition precedent to any binding contract issued upon the faith of said answers and statements.

We deem it unnecessary to set the application out in full, because there is no controversy about the insured’s condition of health at that time. The benefit certificate issued to him was as follows:

“Benefit Certificate Modern Woodmen of America.

“No. 3201343 Amount, $1000

“Age 20 Rate, 85 Cents.

“A fraternal beneficiary society incorporated, organized and doing business under the laws of the State of Illinois.

“It is hereby certified that neighbor Thomas W. Whitaker, a member of Camp No. 13665 of Modern Woodmen of America, located at Harrison, Arkansas, if lie shall pay benefit fund assessments in accordance with the provisions of the existing by-laws of this society, or as snch by-laws hereafter may be changed, added to, or amended, is, while in good standing, entitled to the privileges of the society, and his beneficiary or beneficiaries hereinafter named shall, in case of his death, while a beneficial member of this society in good standing, be entitled to the privileges of the society, and his beneficiary or beneficiaries hereinafter named shall, in case of his death while a beneficial member of this society in good standing, be entitled to participate in the benefit fund of this society to the amount of one (1) thousand dollars, without interest, to be paid to said beneficiary or beneficiaries, to-wit, Laura D. Whitaker, related to said member as mother; provided, however, that all the conditions and agreements contained in said member’s application for beneficial membership and in this certificate, and in the by-laws of the society, as said by-laws now exist, or hereafter may be added to, modified, amended, or enacted, shall be fully complied with; and provided further that, if any beneficiary named in this certificate shall die at the same time, or in a common disaster, or prior to the death of said member, or in the event of the disqualification of such beneficiary under the provisions of the by-laws of this society, now in force or as hereafter amended or enacted, and if such member shall have failed to have had another beneficiary named in the place and stead of such deceased or disqualified beneficiary, then the amount specified to be paid such deceased or disqualified beneficiary, under this benefit certificate, shall be payable in accordance with the by-laws of this society in force at the time of the death of said member.

“This benefit certificate is issued and accepted only upon the foregoing conditions and the express warranties, conditions and agreements printed on the back of this certificate, there designated as ‘Conditions,’ and numbered from one to twelve inclusive, which said warranties, conditions and agreements are hereby made a part of this benefit certificate to the same effect and extent as if incorporated herein over the signature hereto.

“In "witness whereof the said Modern Woodmen of -America has, by its head consul and head clerk, signed and caused the corporate seal of said corporation to be affixed to this certificate, at the city of Rock Island, in the State of Illinois, this 11th day of February, 1925.

(Signed)- “J. G-. Ray, Head Clerk.

“A. R. Talbot, Head Consul.

“Member adopted 6th day of April, 1925, and certificate delivered this 6th day of April, 1925.

(Signed) “G-. C. Coffman, Clerk.

“D. Brooks, Consul.

“Harrison Camp No. 13665, M. W. of A.”

On the 6th day of April, when the clerk of the camp delivered the policy to the insured, insured signed the following certificate: “I have read and hereby accept the above benefit certificate and agree to all the conditions therein contained and referred to. I hereby warrant I am now in good health. I agree and understand that this certificate is not binding upon the society until signed by me, nor unless I am now in good health. ’ ’

The defendant pleaded all the statements and warranties as a defense, but it is unnecessary to set out the pleadings at length.

The appellant, who was plaintiff below, testified, in substance, that she was the mother of the deceased, Thomas W. Whitaker, who died on May 6, 1925, at her home in Harrison. She testified that he had a policy in the defendant company, which he gave her for safekeeping. She said the company refused to pay the policy upon his death, and she brought suit. He turned the policy over to her exactly a month before his death. He died on the 6th day of May. The benefit certificate copied above was here introduced in evidence. She testified that they solicited her boy to join the fraternity on February 2, and he was in sound health, 19 years old, and lived at home, and was her only boy. She stated he was in good health.' That the signature at the'bottom of the certificate or policy was the signature of- her son. She further testified that the insured was called upon by Dr. Poyner Sunday before the delivery of the policy the following day. That Dr. Poyner was called to see her daughter, and her son complained of feeling bad, but he did not want to go to bed and did not want any medicine. The doctor was called back that evening to see the insured on account of bleeding nose. The boy was up the next day, and was in good health. He worked some the day the policy was delivered, ate his breakfast, and was feeling all right, and nobody could see anything wrong with him; he was all right every way.

Cleve Coffman, clerk of the camp, testified, in substance, that he was the cashier of the First National Bank at Harrison, and clerk of the Modern Woodmen at the local camp there. That he issued receipts for the pay-mout of duos to members and delivered certificates of membership and benefits. That he delivered and signed the certificate on which the suit was based. The insured was reported as a member April 4 and report was sent in to the head clerk in May. The policy was delivered to the insured April 6. The insured made payment of his dues on April 6 in person, and the certificate was delivered to him in person. Here the proofs of death were introduced, and the witness continued, that he notified the head clerk of the death of the insured. Insured was initiated on the 2nd day of February, but did not pay any money until the 6th of April, when his policy was delivered. He said he did not deliver the certificate because he supposed the boy did not have any money.

Dr. J. II. Poyner was called by the defendant, and testified, in substance, that he was a regular practicing physician in Harrison, and had been practicing for thirteen years; that he visited Thomas W. Whitaker on the 5th of April, 1925, at his home, examined him, and found that he had influenza and also leakage of the heart; that he visited him twice on this day, the last time being. in the night, when his nose was bleeding; he could hear the leakage of his heart very distinctly. He had treated a number of cases of leakage of the heart; that leakage of the heart is usually the result of some other disease; that the insured had a pretty bad leakage of the heart; that he did not consider him a person in good health at said time, and that he .would not recommend a man in his condition as a good insurance risk.

Dr. J. H. Fowler testified, in substance, that he was a practicing physician in Harrison, and had been for twenty-five years. .That he treated insured in his last illness, being called first on April 18. That he found him suffering pain in his foot and leg, and also found him suffering from a heart lesion, or a murmur when he breathed. He could not tell how long he had been in this condition. He did not consider a person with leakage 'of the heart as a good risk for insurance. He had known this boy for many years and could not tell anything was wrong with him until he was called to see him. He said the flu is one of the common causes of heart affection; if you see a boy on the street you could not tell whether he had heart trouble by looking at him; he might have it and you could not tell it.

Defendant then offered its answer in evidence, and pleaded the clauses of the policy with reference to warranties, etc.

The plaintiff then recalled Laura D. Whitaker, who testified, in substance, that the insured had never been sick until his last sickness; that he never took any medicine; that he objected to them sending for Dr. Poyner and that he objected to taking medicine. That he worked for different parties after the 5th day of April; that he was not sick or in bad health on the 6th day of April or any day thereafter, until Dr. Fowler came to see him on the 18th.

Wm. Cole, J. W. Wynn, Oscar Rogers, Effie Whitaker, Jane Whitaker and Mrs. J. B. Ritchie all tes-titled that they knew the hoy intimately, and that he was seemingly in good health and did not give any indication of heart trouble.

Cleve Coffman‘was recalled, and he and Rex Poyner both testified that they saw the insured after April 5 and prior to his death, and that he was in good health.

Dr. C. M. South testified, in substance, that he was a practicing physician, and had been practicing in Harrison since 1902. That in 1925, in February, he was district medical examiner for insurance for the Modern Woodmen, and examined the insured, making a close examination, and found him in good health at the time.

Yance Holt and William Cole both testified, in substance, that, they saw the insured in February, March and April, 1925, and he appeared to be in perfect health and physical strength.

Dr. Fowler was recalled by the plaintiff, and testified, in substance, that a person might have any kind of fever that might cause temporary regurgitation of the heart; that, if a person were examined in February and found in good health and no heart trouble, and on the 5th day of April found to have flu and regurgitation, and on the 6th was up and seemingly in good health, having the ability to climb trees and jump to the ground without any apparent injury, and seemed to be in good condition and able to perform manual labor, and on the 5th of April had leakage of the heart, he would think it was temporary. That there was nothing in insured’s condition when he examined him that showed organic heart trouble. That when he visited him on the 18th of April he found that the deceased had rheumatism and organic heart lesion.

Dr.- L. Kirby was called by the defendant, and testified, in substance, that he had been practicing medicine in Harrison since the 21st of October, 1871; that leakage of the heart is becoming a common disease, and causes ■ a' good many deaths; that a doctor can tell by putting, an ear down or using a stethoscope whether a person has heart leakage; that one may have heart leakage -and may be up and doing manual labor, but he did not regard such a person in good health. That, assuming that on the 5th "of April the person was found to'have the same disease and had been sick several days before the 18th, and supposing that he died on the 6th day of May, of rheumatism and organic heart lesion, in his opinion, as a doctor, he had leakage of the heart all the time from April 5 until the date of his death; he .said it is sometimes a little hard to determine whether regurgitation of the heart is chronic or temporary; that it might be temporary under the hypothetical facts stated in this case, or it might not; that, if the boy was able to go on with his work and perform the physical feats related in the hypothetical question, it would look like, on the surface, that he did not have heart trouble, but, on the other hand, it would be probable that he would have such trouble.

The court, upon its own motion, gave the following instructions:

“Gentlemen of the Jury: In this suit Laura D. Whitaker seeks to recover from the Modern Woodmen on a certain policy that was issued to her son, Thomas W. Whitaker, some time in April, possibly in the year 1925. She alleges in her complaint that her son, Thomas W. Whitaker, was insured, his life was insured with this defendant company, and it has been admitted that this policy was issued to him and under the rules and regulations and by-laws of the company, which are all considered as a part of the contract in this case; that is, the application and -by-laws of the company are all a part of the contract or policy. It is admitted that he took out the policy and application for it, and all the allegations in the complaint had been admitted, except that the defendant says and alleges in its answer, at the time he accepted it, which was not effective or could not be effective until the time it was accepted by the insured, and it .was claimed by the defendant in its answer, a£ the time he accepted this insurance policy on the 6th day of April, 1925, that he was not in good health at the time, and therefore was not an insurable risk. Those are the facts, gentlemen, yon would be called upon to try.”

On request of the plaintiff; and over the objection and exceptions of the defendant, the court gave the following instructions:

“Instruction No. 1. In this case Mrs. Laura D. Whitaker is plaintiff and is seeking to recover $1,000 and 6 per cent, interest on the same from and after defendant rejected the claim. The defendant denies liability, and alleges misrepresentation upon the part of the assured, Thomas W. Whitaker, as to the condition of his health at the time of the delivery of the policy, and that is one of the issues you are called upon to try. It is agreed that the plaintiff is the mother of the assured and the beneficiary under the policy.

“Instruction No. 2. Before the plaintiff can recover the burden is hers, to show by a preponderance of the testimony that her son had a policy of $1,000; had paid the usual and required rate; had made ^.misrepresentations to procure the policy; and that he died during the life of the policy. If you so find, your verdict will be for the plaintiff.

“Instruction No. 3. The deceased made his application for his policy of insurance and the policy was issued and delivered to him, and that places the burden on the defendant to establish by a preponderance of the evidence that the deceased had any physical ailment that would avoid the terms of the policy, and, unless the defendant established the same by a preponderance of the evidence,, you will find for the plaintiff.

.“I instruct you that the physical condition of the insured on the 18th day of April, 1925, when Dr. Fowler was called to treat him, can only be considered by you for the purpose of determining his physical condition at the time, said policy was delivered to him, and for no other purpose.”

The defendant requested a peremptory instruction, which the court refused to give, and then, at the request of the defendant, the court gave the following instructions :

“Defendant’s requested instruction. In this case, gentlemen, there is but one issue for you to determine, and that is whether Thomas W. Whitaker was, on the 6th day of April, 1925, the date of the delivery of the certificate, in good health. The defendant pleads that on said date the applicant was suffering with influenza and an affection of the heart. Upon this issue the burden is upon the defendant. If you believe from a preponderance of the evidence that the applicant, Thomas W. Whitaker, was on said date, April 6, 1925, affected with influenza and leakage of the heart, or either of such diseases, then in that event you must find for the defendant; and it makes no difference whether deceased knew of such condition or not.”'

The defendant filed motion for a new trial, urging several errors, but the instruction' that it asked and which was given by the court told the jury that there was but one issue for them to determine, and that that was whether Thomas W. Whitaker was, on the 6th day of April, the date of the delivery of the certificate, in good health.

In addition to the one question 'that counsel states is for the jury, they argue the question of the admissibility of the evidence, and very earnestly contend that non-expert witnesses cannot state their opinion as. to the physical condition of the deceased, but can only testify to facts, that is, what he did and said and how he acted, and that, when they have testified to these facts, it is then the province of the jury to determine the issue as to his health. They call attention to a number of cases in which this court has held that, as a general rule, the witness must state only facts and not state the conclusions at which he has arrived from such facts. In speaking of the testimony of non-expert witnesses who testified that one appeared-to be suffering, looked like she was sick, seemed to be in bad health, and that, a short time before the injury,- she appeared to be in very good health, this court said:

“The testimony comes within the rule approved by this court in St. Louis, I. M. & S. R. Co. v. Osborne, 95 Ark. 310-317, 129 S. W. 537, where we held that it was not error to allow non-expert witnesses to state facts within their knowledge and observation as to the plaintiff’s physical condition, habits, etc., before and after the date of the alleged injury. Judge Elliott, in his treatise on Evidence, volume 1, § 679, states: ‘An ordinary witness may testify in a proper case as to the state of his health. Thus, he may testify that he has suffered pain, or state his physical condition generally. * * * So, such a witness may testify that another person seemed to be sick, suffering pain, nervous, or in good or bad health. ’ See also § § 675 and 676.

Where one person is acquainted, with another and they come in contact with each other frequently, it is not a matter of expert knowledge for one to tell whether the other appears to be sick or well. These are matters of common experience and observation. And a non-expert witness, after stating the facts upon which his opinion is based, may even give his opinion in such matters.” K. C. S. R. Co. v. Cobb, 118 Ark. 569, 178 S. W. 383.

There are numerous cases to the same effect. This court has also frequently held that non-expert witnesses may testify whether, in their opinion, a person is sane or insane, after giving the facts upon which they base their opinion. As to whether one is in good health or not is a matter of „opinion. The experts themselves do not know, but can merely give their opinion, and persons that constantly associate with one would probably be able to tell more accurately whether one was in good health than an expert who did not associate with the person frequently. At any rate, we think that it was proper for the witnesses to be permitted to testify as to whether or not the deceased was in good health on the 6th day of April, the day the policy was delivered.

A physician testified that, on the 5th day of April, the day before the policy was delivered, he attended the deceased, and that he had a leaky heart, bnt not only this physician, bnt all others who testified at all, testified that this might be chronic or temporary. Bnt the physicians testified as to his condition of health, and these 11011-ex-perts testified, and it was then submitted to the jury on an' instruction requested by the defendant telling them that there was bnt one issue, and that was whether Whitaker was, on the 6th day of April, in good health. We think the court did not err in permitting the testimony of the non-expert witnesses.

It is next contended by the appellant that the counsel for the appellee and the court erred in their failure to distinguish between false representations and warranties. There is no controversy about the good health of the applicant at the time the application was made. It is not contended that at that time he was not in good health. Bnt it is contended that, 011 the 6th day of April, the day the policy was delivered, he signed a certificate, and that that certificate was a warranty that he was in good health. It is not entirely clear from the record in this case whether that certificate was written on the benefit certificate or not, but we think, from the appearance of the record and the testimony, that it was. It was a statement'as follows:-“I have read and hereby accept the above benefit certificate, and agree to all the conditions therein contained and referred to. I hereby warrant I am. now in good health. I agree and understand that this certificate is not binding upon the society until signed bjr me, nor unless I am now in good health. Thomas W. Whitaker.”

It is contended that the statement in the above certificate, “I hereby warrant I am now in good health,” constitutes a warranty, and therefore must be true. The testimony of the clerk who delivered the policy shows that Whitaker came to the bank, and the policy was delivered to him, and he signed it, and if there was anything to indicate that he was not in good health at the time, this witness did not mention the fact, and was not asked about it by either party. He was the clerk of the camp, whose duty it was to deliver the policy only in case the insured was in good health at the time. He delivered it to him on that day, evidently believing that he was in good health.

This court has said: “Statements or agreements of the insured which are inserted or referred to in a policy are not always warranties. Whether they be warranties or representations depends upon the language in which they are expressed, the apparent purpose of .the insertion or reference, and sometimes upon the relation they bear to other parts of the policy or application. All reasonable doubts as to whether they be warranties or not should be resolved in favor of the assured. * * * A warranty, being a part of the contract itself, as con-tradistinguished from a representation, which is a mere inducement to the policy, must necessarily appear in the contract itself in express terms or be so referred to in the policy as to clearly indicate that the parties intended it to form a part of the contract.” Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393.

“The doctrine or rule as to warranties in contracts of insurance, as stated in the earlier cases, is, in substance, that, if any warranted statement in the application is shown not to be the exact and literal truth, the insurance is forfeited, and that this result must follow even though the statement be made in the utmost good faith, and relates to a fact which is in no manner material to the risk against which the insurance is taken. In most jurisdictions, where the Legislature has not interfered to change it, the same statement of the rule is still adhered to, but its manifest harshness, to say nothing of its absurd extreme of technicality, has led the court to greatly limit its application, by emphasizing the distinction between warranties- and representations, and by holding strictly to that other rule, which requires contracts of insurance to be taken most strongly against the insurer, and that courts should so interpret the contract, if it be fairly possible, as to avoid a forfeiture. It is now settled that the use of the word ‘warrant’ or ‘warranty’ in the application or policy is of itself by no means conclusive upon the question whether, in view of the entire record, any given answer of statement of the insured is to be given technical effect as a warranty, rather than as a representation.”

The court cites many cases, and then proceeds: ‘‘Indeed, in the Port Blakely Mill Company case, supra, the court goes to the extent of saying that the word warranty is of such general signification and of such general and discursive use that, except as it may be restrained or explained by the writing as a whole, it is absolutely without legal significance. Again, it is said that the rule is universal that statements contained in the application will not be construed to be warranties, if elsewhere in the contract there can be found reason to suppose that such was not the clear understanding of the parties. * * * We do not overlook the fact that the warranty is repeated a number of times throughout the application, and that it is very sweeping in form, and that it is so repeated without the qualification which we have noted. * * * If such a provision were enforceable regardless of good faith of the insured and regardless of his knowledge of hidden infirmities, no person could know whether he was insured or not. The form of the question necessarily calls for an opinion, and an agreement to warrant the truthfulness of the answer is no more than to warrant that the applicant will make a bona fide answer as to his opinion of the character of his ailment.” Teeple v. Fraternal Bankers’ Reserve Soc., 179 Ia. 65, 161 N. W. 102, L. R. A. 1917C 858.

The defendants then argue that there is no question about the good faith of Whitaker. They did not claim that his statement was not what he thought was true, and, while the authorities are divided on the question, many authorities hold that a warranty as to good health is merely a statement of opinion, and, if made in good faith and the applicant believes his statement to be true, this is a compliance. In other words, that a warranty as to good health is warranty of the good faith of the applicant. In speaking- of statements with reference to good health it has been said:

“Conceding that the representations contained in the application for the policy were made warranties by the reference to them in the policy, still we cannot say that they were untrue. The application was not introduced, and we- are not advised by the evidence of its contents. We cannot determine that there was either misrepresentation or concealment of facts. For aught that appears in this record, there may have been a full disclosure of every fact material to the risk, and a true answer to every question propounded. * * * A warranty is in the nature of a condition precedent; it must appear on the face of the policy; or, if on another part of it, or-on a paper physically attached, it must appear that the statements were intended to form a part of the policy; or, if on another paper, they must be so referred to in the policy as clearly to indicate that the parties intended them to form a part of it. A warranty cannot be created nor extended by construction.”' Mutual Benefit Life Ins. Co. v. Robertson, 59 Ill. 123, 14 Am. Rep. 8.

Again it has been said: “The practical operation of such literal warranties is so often harsh and unfair that courts require their existence- to be evidenced clearly and unequivocally, and are not inclined to allow it to rest upon a mere verbal interpretation where a reasonable construction of a contract as a whole will authorize a different meaning. All reasonable doubts as to whether statements inserted in or referred to in an insurance policy are warranties or representations should be resolved in favor of the insured. By statute at least two States (Pennsylvania and Ohio) have eliminated warranties from the law of insurance in those States, aud the constitutionality of such statutes has been sustained by the Supreme Court of the United States.” Spence v. Central Accident Ins. Co., 86 N. E. 104, 236 Ill. 444, 19 L. R. A. (N. S.) 88.

It will be remembered that the appellant’s physician not only examined the applicant thoroughly, but stated that he had known him all of his life, and he knew at the time he examined him whether or not he was in good health, and that he stated that at that time he was in good health. After that the policy was issued. It was delivered to the insured at the Bank of Harrison when -the insured was apparently in good health. The statement of the insured was evidently not in the face of the policy, but he signed a statement to the effect that he was in good health at that time, and, while the statement itself contains the word “warranty”, we think it was not a warranty further than that the insured warranted the truth of his answer. That is, that he believed it to be true. Being made at the time it was, under the circumstances, we think it was a representation and not a warranty, although tlie word “warranty” was used.

As has been said by some other courts, if a statement of the assured when the policy was delivered that he was in good health, believing that his statement was the absolute truth, would avoid the policy if it turned out that there was some unknown ailment, then no one would know whether he had insurance or not. Our conclusion is that it was not a warranty but a representation.

The appellant next contends that the court erred in giving instructions to the jury. The court, at the request of the appellee, gave the following instruction: “Before the plaintiff can recover, the burden is hers to show by a preponderance of the testimony that her son had a policy of $1,000; had paid the usual and required rate; had made no misrepresentation to procure the policy, and that he died during the life of the policy. If you so find, your verdict will be for the plaintiff.”

The appellant says that it is not alleging any misrepresentations, but alleges a breach of warranty. Since we hold that the clause in the statement signed by the insured was a representation and not a warranty, the appellant was contending and did contend that the statement of the insured was untrue, and therefore in effect contended that it was a misrepresentation. But the appellant itself requested and the court gave the following instruction: “In this case, gentlemen, there is but one issue for you to determine, and that is whether Thomas W. Whitaker was, on the 6th day of April, 1925, the date of the delivery of the certificate, in good health. The defendant pleads that, on said date, the applicant was suffering with influenza and an affection of the heart. Upon this issue the burden i's upon the defendant. If you believe from a preponderance of the evidence that the applicant, Thomas W. Whitaker, was, on said date, April 6, 1925, affected with the influenza and leakage of the heart, or either of such diseases, then in that event you must find for the defendant, and it makes no difference whether deceased knew of such condition or not. ’ ’

This instruction submitted to the jury the one issue of whether Whitaker was in good health at the time he received the policy, and we think it was more favorable to the appellant than it was entitled to. Our conclusion is that the issue was submitted to the jury under proper instructions, and their finding on the question of fact is conclusive. The judgment is therefore affirmed.

Mr. Justice Smith dissents.


source: Caselaw Access Project

author: MIehaffy, J.

license: Public Domain

text:
    Benefit Association of Railway Employees v. Jacklin.
    Opinion delivered May 2, 1927.
    1. Evidence — opinion op nonexpert. — Where the defense to a suit on an accident insurance policy was that insured committed suicide, which was an excepted risk, it was not error to permit the coroner to testify as to whether sufficient time intervened between the time of shooting and his arrival at the scene thereof for some one to place a pistol under insured’s hand.
    2. Evidence — opinion op nonexpert. — In an action on an accident insurance policy where the defense was that insured committed suicide, which Was an excepted risk, and where another witness demonstrated in the jury’s presence that he could use a pistol with his right hand and put it at the place where insured was shot, it was not error to overrule an objection to the question to the coroner as to whether it would be practical for a right-handed man to shoot a pistol with his left hand.
    3. Appeal and error — admission of evidence — harmless error.'— In an action on an accident insurance policy, where the defense was that the insured committed suicide, which was an excepted risk, and where defendant’s witness' testified as to his relations with insured’s wife and about going to Hot Springs with her and having a photograph taken, it was not prejudicial error to permit plaintiff to introduce in evidence'the photograph of the wife and witness.
    4. Trial — application of instruction. — Where the defense to a suit on an accident insurance policy was that insured committed suicide, which was an excepted risk, an instruction that, before the jury would be justified in finding that insured committed suicide, there must be evidence from which such conclusion would be . reasonable and probable, and not merely speculative or conjectural, was not erroneous as instructing that the suicide must* be conclusively shown.
    5. Trial — sufficiency of evidence. — A question as to whether testimony is so speculative or conjectural as to entitle the defendant to go tO' the jury is a preliminary question for the court.
    6. Evidence — weight and sufficiency.' — Where testimony is admitted, it becomes a question for the jury to determine whether the thing sought to be proved thereby is shown to be reasonable and probable, and not merely speculative.
    7. Trial — instruction—weight of evidence. — In an action on an accident insurance policy where the defense was that insured committed suicide, an excepted risk, an instruction telling the jury that, to defeat recovery, the evidence must be such that it would appear that suicide was probable and reasonable, held not erroneous as on the weight of evidence.
    8. Trial — refusal of instructions. — In an action on an accident policy where the issue for the jury was whether insured was actually killed or committed suicide, refusal of defendant’s instruction that the issue was whether insured committed suicide or was murdered, and that there were presumptions against both suicide and murder, and hence presumptions were equally balanced, held not error under evidence.
    9. Insurance — suicide—jury question.- — Even where the proofs of death show that the deceased committed suicide, it is still a question for the jury to determine; the presumption that deceased did not commit suicide prevailing until overcome by proof to the contrary.

      Appeal from Pulaski Circuit Court, Second Division; Richard M. Mawn,, Judge;
    affirmed.

      Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Tom W. Campbell, for appellee.
   MIehaffy, J.

The plaintiff, the administratrix of Harvey U. Boyd, deceased, brought suit on an accident insurance policy carried by deceased with the defendant which provided for the payment of $2,000 upon loss of life resulting from bodily injury sustained through accidental means.

The plaintiff alleged that Harvey TJ. Boyd lost his life by accident on September 21, 1925. That Bessie Boyd was designated as beneficiary in the policy, and that she was also shot and fatally wounded on the same day. That plaintiff was also the administratrix of the estate of Bessie Boyd, deceased, and alleged that proof of death had been made, and asked judgment of $2,000 with interest, damages, and attorney’s fees.

The answer denied that the death of Harvey TJ. Boyd resulted from bodily injury sustained through accidental means and that Harvey TJ. Boyd committed suicide, which is an excepted risk.

W. A. Lamb, the coroner of Pulaski County, testified that he was called to the Boyd home on September 21, 1925; he presented a diagram of the residence, gave the names of the persons who roomed there, and said that Mr. Boyd was lying on the floor and Mrs. Boyd was on one bed, and the children were on the other bed. That she was lying on the side of the bed next to the wall, facing the wall, with a bullet wound in the back part of her brain that had entered and ranged to the left. That Mr. Boyd was lying on the floor, with his feet partly under the bed on the side he was alleged to have been sleeping on, with his head slightly under the edge of the bed the children were sleeping on. Tha.t a pistol was in his hand, and a bullet wound at a point just left of the center of the back of his neck. His right eye was blodd-shot, as if the bullet had gone toward it. The bed clothing was on fire. Mr. Boycl had his trousers on, and Mrs. Boyd was dressed in her night clothes. That the pistol was under Boyd’s left hand, and his right hand was stretched out to the right. That there was a powder-burn at the place where the bullet entered his head. It was about an inch and a half or two inches in diameter, and spread out in different directions.

Witness testified that he was experienced in cases of death resulting from pistol shots. That the pistol was against Mr. Boyd’s head, and also against Mrs. Boyd’s head. The flesh on his head was slightly burned. If a pistol is held back from the flesh it will not lacerate the flesh, but if it is held up- against it it will explode and lacerate the flesh.

He said that most suicides followed drinking sprees or a family disturbance.

When witness arrived there he said that Mr. Clark and Mr. Herrin were there, and there were four rooms in which people were sleeping in the house, and there were doors leading into the Boyd’s room from the three in which. Herrin, Clark and Miss Baer were sleeping. Boyd’s room was connected with four other rooms by doors.

He said he did not notice any screens being cut. The next morning he searched all of the rooms, and in Mr. Herrin’s room found a handkerchief which had soot or grease on it, and red, as though it was blood. The bloody handkerchief was behind Mr. Herrin’s bed.

When he arrived there Mr.- Herrin was in Boyd’s room. He got there between 4:30 and 5 o ’clock, and he was then dressed. He did not notice whether he had his shoes laced. As he recollected, he had his collar and tie on. He was not positive whether Mr. Clark' had a coat on. He was positive that Mr. Herrin did not have his hat on when he arrived. The pistol was right under Boyd’s hand, on the floor. He was not clutching the pistol. Miss Baer came into the room that morning. Slie was fully dressed. “I can’t take the pistol in my rig-lit hand and point the muzzle of it to the place on the back of my head that corresponds to the bullet-hole in the back of Boyd’s head. I will have to take it in my left hand. If I were going- to shoot a pistol, I would shoot with my right hand.”

When asked if he thought it practical for a right-handed man to shoot a pistol with his left hand, he answered: “It is not often the case. I arrived there between 30 or 40 minutes after the accident occurred. A person would have time to dress in that time, and enough time intervened for some one to have placed a pistol under the man’s hand. There were several persons in the room, and, in coming to a decision, I did not confine my questions solely to the persons in the house. I went back there every day for a week to get additional information. There were powder-bums -on Mrs. Boyd right around the wound at the back of her head. One of her hands was powder-burned, but I don’t remember which.”

R. L. Allen testified, in substance, that he was on the Little Rock police force, and was called to the Boyd residence on the morning- of the shooting. Officer Ben net wont with him. There was a bullet-hole in the back of Mrs. Boyd’s head. She was powder-burned and there was a little blood on her. “The best I remember, both of her hands were powder-burned. I know that one of them was. The bullet entered Mr. Boyd’s head a little to the left of center and maybe a little above the line of the hair. As I remember, his right hand was on the floor and left hand was lying across the body, and the gun. was lying a little under his right hand. I found an empty bottle on the table. It was an .Angostura Bitters bottle. I don’t think Mr. Clark was fully dressed when we got there. Mr. Herrin was in the other room. He was fully dressed. I saw Miss Baer also. The pistol was partially under Mr. Boyd’s right hand.” He said he could put it anywhere, and demonstrated snapping the trigger twice.

A number of other witnesses testified to substantially the same facts, and there was also testimony that Mr. Boyd had been drinking, that he had had domestic troubles, and that other men had been going out with his wife and that he had remonstrated with her about this, but we do not deem it necessary to set out the testimony at length. There was a verdict against the appellant, and a motion for a new trial, which was overruled, and exceptions saved, and appeal taken to this court.

The court gave the following instructions at the request of the plaintiff, over the objections of the defendant: ' .

“On April 22, 1924, the defendant, Benefit Association of Railway Employees, issued and delivered to Harvey U. Boyd its policy of insurance, in which policy the defendant agreed that, upon the death of the said Harvey U. Boyd during the life of said policy, if such death were caused solely through external, violent and accidental means (excluding suicide, sane or insane), the defendant would pay to Bessie Boyd, wife of the said Harvey U. Boyd, if living, otherwise to the estate of the said Harvey IT. Boyd, the sum of $2,000, with the further provision that, if all monthly premiums on said policy were promptly paid on the dates due, for a period of one year or.more immediately preceding such death of the said Harvey U. Boyd, then in such event the defendant should pay an additional $100 upon the occurrence of such death of the said Harvey H. Boyd. All premiums upon said policy were promptly paid upon the dates due for a period of more than one year preceding the death of the said Harvey U. Boyd. On September 1,1925, said Harvey U. Boyd died from the effects of a gunshot wound. A few hours after his death, on the same day, his said wife, Bessie Boyd, also died from the effects of a gunshot wound. Plaintiff, Lula B. Jacklin, has been appointed and is now the duly constituted and acting administratrix of the estate of thé said Bessie Boyd. The above stated facts are undisputed. The defendant alleges, in its answer in this case, that the said Harvey H. Boyd committed suicide, and on that ground alone the defendant contends that it is not liable for the payment of the insurancev under said policy.

“2. The only issue to be determined by the jury in this case is whether or not Harvey U. Boyd committed suicide. It will be presumed in law, unless and until evidence is introduced to the contrary, that the said Harvey U. Boyd did not commit suicide. The law places the burden upon the defendant to prove by preponderance of the evidence that he did commit suicide before you would be justified in so finding. Unless you find from a preponderance of the evidence in this case that the said Harvey U. Boyd in fact did commit suicide, your verdict should be for the plaintiff.

“3. If you find and believe that the evidence in this case is evenly balanced upon the question as to whether or not the said Harvey U. Boyd committed suicide, then your verdict should be for the plaintiff.

“5. In attempting to determine whether or not the said Harvey U. Boyd committed suicide, you would be authorized to take into consideration all of the proved facts and circumstances which- have been testified to in this case. Before you would be justified in finding that he did commit suicide, there must be evidence from which such a conclusion would be reasonable and probable, and not merely speculative or conjectural. If you find from a consideration of all the evidence in this case that it is merely speculative or conjectural as to whether the said Harvey U. Boyd committed suicide, your verdict should be for the plaintiff.

“6. If you find for the plaintiff in this case you should find for her in the sum of $2,100, with interest thereon at six per cent, per annum from November 13, 1925, to this date.”

The court also gave the following instructions:

“If you do not find from the testimony that Harvey U. Boyd committed suicide, then it is immaterial how his death occurred, and your verdict will be for the plaintiff.”

The court then gave the following instructions, at the request of the defendant:

. “2. You are instructed that the only question for you to decide is whether or not H'. IT. Boyd committed suicide. If he did, you should find for the defendant. If he did not, you should find for the plaintiff.

“7. The burden is on the defendant to prove by a preponderance of the evidence that the insured committed suicide, and by the term ‘preponderance of the evidence’ is meant the greater weight of the evidence.

“8. You are the sole judges of the weight of the testimony and the credibility of the witnesses, and, in passing upon the credibility of the witnesses, you may take into consideration their demeanor upon the stand, their interest in the litigation, the consistency or the inconsistency of their testimony, and any other facts or circumstances which may tend to shed light upon the truthfulness -or untruthfulness of such testimony. ’ ’

The court refused to give the other instructions requested by the defendant.

It is first contended by the appellant that the court erred in permitting the question asked, of Dr. Lamb and his answer with reference to whether or not sufficient time intervened for some one to place a pistol under the man’s hand, and also objected to the question propounded to the coroner as to whether it would be practical for a right-handed man to shoot a pistol with his left hand, and urges, as a reason why it was error to admit this testimony, that the court has always condemned liberality on the part of the trial court in letting non-expert witnesses give their opinions and usurp the province of the jury.

It may be said, in answer to this argument, in the first place that the coroner claimed to have had some experience, and, moreover, he simply made a demonstration in the presence of the jury that we think it would be proper for any one to make, and, besides that, another witness not only testified that it would be practical, but he showed in the presence of the jury that he could use the pistol with his right hand and put it at the place where Mr. Boyd was shot. We therefore do not think there was any error committed by the trial court in admitting this testimony.

The appellant next contends that the court erred in permitting plaintiff to introduce in evidence a photograph of Mrs. Boyd and defendant’s witness, Herrin. Herrin himself testified about his relation with Mrs. Boyd and about going to Hot Springs with her, and that there was never anything dishonorable between them. He had also testified, without objection, that, on the trip to Hot Springs, they-went to Happy Hollow and had their picture taken, and went from there to the tower. And the effort seems to have been made to show the relation between Herrin and Mrs. Boyd, and there is quite a-great deal of testimony about her going out with him and about Mr. Boyd remonstrating with her about it, and we do not think the introduction of the picture in evidence was in any way prejudicial. Mr. Herrin was present and testified about the trip to Hot Springs and about having the picture taken, and, of course, he knew whether it was accurately taken; and, whether relevant or not, it could not have resulted in any prejudice to the appellant. It could have been no more hurtful than the witnesses telling about the trip and about their picture being taken together.' The appellant does not undertake to show in what way the photograph was harmful. There is no statement as to what the photograph was, how it showed the parties with reference to each other, nor any statement of fact at all by. the appellant as to why the picture would not be competent, except that it had no probative force, and that it was an effort to stir the jury and excite the feeling- against the appellant by such a photograph, and for that reason it was incompetent. We are unable to see how the photograph, taken as it was, could in any possible way prejudice the appellant, since the testimony was introduced without objection, showing that they went out together, went to Hot Springs together, and, while there, went to Happy Hollow and had their picture taken together, and there was nothing more in the photograph than the testimony had shown. We therefore conclude that it could not have been prejudicial.

The appellant’s next contention is that the court erred in giving plaintiff’s instruction No. 5. The specific objection argued is that the last clause tells the jury that the evidence offered by appellant must be such that a conclusion of suicide would reasonably follow. And counsel state in telling them that, and telling them that if, from a consideration of the evidence, it is speculative, their verdict should be' for the plaintiff, and they argue that, to the untrained mind of the jury, the words “speculative” and “conjectural” have no technical meaning, and then the instructions simply meant that, unless suicide was conclusively shown, which is an impossibility with only circumstantial evidence in the case, they should find for the plaintiff.

We do not agree with the counsel for the appellant in this contention. In the first place, the jury were supposed to be men of ordinary intelligence and could understand the difference between reasonable and probable on one hand and speculative and conjectural .on the other. And the instruction does not tell the jury that, unless suicide was conclusively shown they should find for the plaintiff, and the instruction, we think, could not be construed to mean anything of the. sort. It simply tells the jury that there must be evidence from which such conclusion, that is, a conclusion that he committed suicide, would be reasonable and probable. And this does not, in any construction that could be placed upon it, mean, and it cannot mean, that, unless suicide was conclusively shown, they would find for the plaintiff. . It is true that the question as to whether the testimony is so speculative or conjectural as to entitle the defendant to go to the jury is a preliminary question for the court. But, when testimony is admitted, then it is certainly a question for the jury to determine ivhether the thing sought to be proved by such evidence is shown to be reasonable and probable and is not merely speculative.

Moreover, defendant’s specific objection to the instruction is that it is an instruction upon the weight of evidence and that it placed a greater burden on the appellant than was warranted, and we cannot agree with counsel for appellant in this contention. It was in no sense an instruction on the weight of evidence, but it simply told the jury that the evidence must be such as it would appear from it that suicide was probable and reasonable, and gave the jury no intimation in any way what the court thought about the evidence or its weight, and the only burden it put upon the appellant was to show by evidence that suicide was reasonable and probable. Certainly this was not an instruction on the weight of evidence and would not be any improper burden upon the appellant. It is wholly different from the cases cited by the appellant, where the court told the jury that the defendant must establish, by a preponderance of evidence, such payment, to the satisfaction of the jury. It is never necessary, in a civil case, that a jury should be satisfied of the truth of their verdict. They may, after a thorough investigation, still not be satisfied, but there is certainly no error in telling the jury that the' thing must be probable or reasonable. And the fact that there may be misgivings or doubts in the minds of the jury would not justify them in finding a thing to be true where the evidence was speculative and conjectural.

The appellant next complains because the court refused to give its instruction No. 4, which, among other things, told the jury that the issues were narrowed down to whether the insured committed suicide or was murdered, and that there are presumptions against both suicide and murder, so in this case the presumptions are equally balanced. This instruction told the jury, in effect, that the deceased committed suicide or was murdered, and wo think this does not necessarily follow from the proof in this case. And it was a question for the jury to find whether he was accidentally killed, either by himself or some third person, or whether he committed suicide, and this would make the instruction erroneous and justify the court in refusing to give it, even if there had not been added to it the clause with reference to presumption.

One of the strongest presumptions is the presumption against suicide. This court has said: “In the first place, there is a presumption against suicide or death by any other unlawful act, and this presumption' arises even where it is shown by proof that death was self-inflicted— it is presumed to- have been accidental until the contrary is made to appear. • This rule is founded upon the natural human instinct or inclination of self-preservation, which renders self-destruction an improbability with a rational being.” Grand Lodge of A. O. U. W. v. Banister, 80 Ark. 190, 96 S. W. 742.

It will be observed that the court in the above case said that the death is presumed to have been accidental until the contrary is made to appear. Certainly one could not make it appear by offering another presumption, the presumption against murder. ■ This court is thoroughly committed to the doctrine that death is presumed to have been accidental until it is proved, not presumed, that he died from some cause not accidental.

“The presumption is always against suicide or self-destruction on the part of a sane person who came to his death under circumstances not explained.” 22 C. J. 95.

“The presumption of law is in favor of life and the natural desire and struggle to preserve rather than destroy it. The presumption is that he (plaintiff’s intestate) fell into the hole accidentally, perhaps carelessly.” Milwaukee Fuel Co. v. Industrial Commission of Wisconsin, 159 Wis. 635, 150 N. W. 998.

The .-Supreme Court of Oklahoma approved an instruction reading as follows: “You are instructed that, when a person dies, the law presumes that he has died from natural causes, and presumes that he had not died from self-destruction. This presumption obtains unless it is overcome by evidence establishing the fact that such person committed suicide.” Modern Brotherhood of America v. White, 66 Okla. 241, 168 Pac. Rep. 794, L. R. A. 1918B 520.

“The presumption was ag’ainst suicide, and the burden was on the defendant.” Travelers’ Insurance Co. v. Allen, 237 Fed. 78.

Even where the proofs of death show that the deceased committed suicide, still it is a question for the jury to determine, and, although such proof has been made by the plaintiff, the presumption is that the deceased did not commit suicide, and that presumption prevails until it is overcome by proof to the contrary.

It was said in a ease where the proof of death showed suicide: ‘ ‘ The jury were entirely at liberty to properly find that the wound, although self-inflicted, was accidental.” Home Benefit Assn. v. Sargent, 142 U. S. 691, 12 S. Ct. 332 (35 L. ed.) 1160.

The appellant complains of the court’s refusal to give its instructions No. 6 and No. 9, but we do not agree with counsel for appellant that there was any error in the refusal to give these instructions. After a careful examination of the entire record we have reached the conclusion that there was sufficient evidence to submit to the jury, and that it was submitted to the jury under proper instructions, and the verdict of the jury is conclusive. The judgment is therefore affirmed.


text:
    Pemberton v. Bank of Eastern Arkansas.
    Opinion delivered May 2, 1927.
    1. Appeal and error — conclusiveness of finding of court. — The court’s finding as to the value of property, claimed by defendant to be exempt, not against the preponderance of the testimony, is conclusive on the Supreme Court.
    2. Exemptions — construction of exemption laws. — Constitution, art. 9, § 2, relating to exemptions, and Crawford & Moses’ Dig., §§ 5544, 5554, being enacted for the benefit of debtors, must be liberally construed.
    3. Exemptions — amount allowed. — Where a debtor claims specific exemptions, and the court finds the value of the articles claimed exceed $500, it is the duty of the court, under § 5554, to deliver to the debtor as exemptions articles not exceeding the value of $500, and to sell the balance only.
    Appeal from St. Francis Circuit Court; E. D. Robertson, Judge;
    reversed.

      W. J. Lanier, for appellant.

      G. W. Norton, for appellee.
   Mehaffy, J.

Suit was begun in the justice of the peace court in St. Francis County on the 19th day of November, 1923, upon a promissory noté for $300, executed and delivered by appellant and Lee Crews to appellee, Bank of Eastern Arkansas. Summons and attachment were issued and served, and judgment was rendered against appellant and Crews. Crews filed schedule and claimed his personal property as exempt, and his claim was allowed. The appellant filed a schedule of his personal property totaling $543, and of that amount he claimed articles aggregating $420, according to his verified schedule.

The justice court refused to allow a supersedeas, and appellant appealed to the circuit court. Evidence was taken in the circuit court, the plaintiff testifying that the property claimed as exempt by him .was worth less than $500 and the other witnesses testifying that it was worth more than $500.

The list as claimed by appellant with their values is as follows: I

One-half of the cotton and seed on 30 or 35 acres.$250.00

One-half of corn.:. 68.00

One blue or dapple mule. 40.00

One Ford touring car. 30.00

Two turning plows . 5.00

Two middle-busters. 10.00

One stalk cutter. 10.00

Two scrapers . 4.00

One orchard harrow . 2.00

Five field hoes . 1.50

Total-.$420.00

It is unnecessary to set out the testimony. The court found, after hearing all the testimony, that the value of the property was $793, and this finding we do not think is against the preponderance of the testimony, and it is therefore conclusive' on this court. The property was afterwards sold and brought much less than the value fixed by the court, but the kind of property owned by the appellant, at a forced sale under the circumstances in this case, would probably sell for very much less than its real value. The only question to be determined here is whether the appellant had complied with the law requiring him to select the specific articles which he claimed as exempt when his schedule, according to the valuation found by the court, exceeded $500, which he would be entitled to claim as exempt, as he was a married man and the head of a family.

Section 20, article 9, of the Constitution reads as follows:

“The personal property of any resident of this State, who is married or the head of a family, in specific articles to be selected by such resident, not exceeding in value the sum of $500, in addition to his or her wearing apparel and that of his or her family, shall be exempt from seizure on attachment or sale on execution or other process from any court on debt by contract.”

The above section of the Constitution is repeated as § 5544 of Crawford & Moses’ Digest. It will be observed that the Constitution and statute allow exemptions in specific articles to be selected by himself not exceeding in value the sum of $500. The circuit court held that, when the value .of the articles in appellant’s schedule exceeded $500, it then became the duty of appellant to select from that list articles whose aggregate value did not exceed $500, and that, because he did not do that, he waived his right to exemption.

"We think the court erred in this ruling. This court has many times held that he must select the articles he claims as exempt. But the question of whether he has complied with that law when the articles selected by him and claimed by him to be worth less than $500 and the court finds they are worth more, has never been decided by this court. While this court has held that he must make the selection, it has also held uniformly that the exemption clause of the Constitution is highly.remedial and should be liberally construed. This court has said:

“It is said that the effect of such a ruling would be to deprive Gruiling of his exemptions; but, if he was entitled to exemptions in this case, still there is nothing in the transcript before us to show that he had claimed his exemptions, as required by the statute. Prima facie, all personal property is subject to sale on execution, and defendant cannot be allowed exemptions unless they are claimed' in the manner provided by statute.” Scanlan v. Guiling, 63 Ark. 540, 39 S. W. 713.

“It is settled in the decisions of this court that, as to property exempt from execution, there are no creditors ; that, as they cannot sell it under execution, they are not injured by a sale of it by the owner, and are not concerned with the motives which may prompt the sale. * * * Under our statute a debtor, claiming property to be exempt from execution, is required to make a schedule of all his or her property, including moneys, rights, credits and choses in action, specifying the particular property claimed as exempt under article 9 of the Constitution of 1874, and file the same with the officer issuing the execution, after having given five days’ notice in writing to the opposite party. * * * If he Avould claim exemption for any of said property, he must bring himself and his property within the exceptions of some statute by proper jDroof.” Blythe v. Jett, 52 Ark. 547, 13 S. W. 137.

“Laws exempting a reasonable sum out of insolvent debtors’ estates to provide insurance for their wives and children have received a liberal construction in other jurisdictions. The Supreme Court of Missouri, in Judson v. Walker, 155 Mo. 166, 55 S. W. 1083, construing somewhat similar statutes, says: ‘ These statutes are now pronounced by the courts praiseworthy, and construed with liberality.’ ” Davis, State Bank Commr., v. Cramer, 133 Ark. 224, 202 S. W. 139.

This court has also said that, where a debtor’s property is worth more than $500, he must make a schedule of all of his property and specify particular property which he wishes exempted under the Constitution. Griffin v. Botterall Shoe Co., 137 Ark. 37, 207 S. W. 439.

Under constitutional provisions and statutes which require the debtor to make the selection, many courts hold that it is his duty to make the selection, and that it is not the duty of the officer to make it for him. But there are many cases holding otherwise, and practically all the authorities that we have examined hold that a judgment debtor is not required to select property at all when all of his property is exempt from execution. Simply a claim to the officer that his property is exempt is all that is required when all of his property is exempt. That is, when the aggregate value of his property does not exceed his exemptions.

Section 5554 of Crawford & Moses’ Digest is as follows:

‘ ‘ If the decision shall be that the property described exceeds in value the amount exempted by the Constitution, . then the justice or clerk shall revoke the super-sedeas so far as concerns such items of property described as the said appraisers may designate as in excess of the amount of exemption by the Constitution provided for, and the cost of the proceeding shall be paid by the defendant in the action.”

We take «that to mean that, when the list selected by the debtor as exempt and shown, according to his estimate, to be within the $500, but the appraisers fixed it about $500, the debtor does not have to reselect, but it then becomes the duty of the officer, whether the court or the clerk, to revoke the supersedeas as to that in excess of his exemptions. That being true with reference to the procedure in the .justice court and before the clerk, we think it should apply in the circuit court also when the value is fixed by testimony taken in the circuit court.

When the debtor files his list and swears that the aggregate value of the property claimed as exempt is less than $500, and the court finds that it exceeds $500, the defendant has made a selection, he has complied with the law, and we think it then becomes the duty of the court, under this statute, to sell that portion of his property only which is in excess of the amount allowed the debtor as exempt.

The controversy here was about the value of the property, and there was no controversy about the debtor claiming it as exempt. He was claiming it all the time as exempt. The officers and court knew that he was entitled to $500 as exempt.

As said by the Illinois court: “These statutes have not declared what shall be done in a- case like the present, and we are left to ascertain the legislative intention by inference or interpretation. Seeing the intentions or purposes of the legislation in adopting these acts, we cannot doubt that, had such a case occurred to them, they would have embraced it in the language of the law, because it is fully within its reason.” Thompson on Homestead and Exemptions, 675.

The author further said in this connection: “An apt illustration of the results which are frequently reached by extending to statutes of exemption a liberal construction will be found in a case in Illinois, where a debtor claimed .the right to reserve from execution a liorse worth more than $100, but not more than $160. There were in force two statutes of exemption, one allowing the debtor certain specific chattels, and also permitting him to select ‘ sixty dollars ’ worth of other property suited to his or her condition in life,’ and a later one exempting certain additional chattels, among them ‘one yoke of oxen, or one horse in lieu thereof, not exceeding one hundred dollars in value.’ Putting the two. together, the court sustained the right of the debtor to select the horse in question.” Thompson on Homestead and Exemptions, 675.

Exemption laws are enacted by tbe Legislature for tbe benefit of tbe debtor, and, as this court bas frequently said, must be liberally construed. And, as we have already said, there is no statute prescribing what shall be done under circumstances like we have here. All the property that this debtor owned was worth very little, if any, more than his exemptions. According to his judgment, it was worth less than his exemptions. And the subsequent sale of the property seems to justify the debtor’s estimate of the value.

In speaking of how exemptions should be claimed, it is said in Thompson on Homestead and Exemptions, 663 : “It is enough if it is made to the levying officer in a way in which he cannot, or ought not to, misunderstand it. ‘Men whose property is levied on are generally under some degree of mental excitement. It is not to be expected that their words should be calmly weighed.’ ”

The officer here could not doubt that the debtor was claiming his exemptions. He was bound to know that he was entitled to at least $500 exempt. The value of the articles claimed as fixed by the court exceeded that amount. Since the debtor had selected the property that, according to the proof taken by the court, exceeded the amount that he was entitled to claim as exempt, it was the duty of the court to allow the debtor or to set apart to the debtor $500-worth of articles claimed as exempt, and to sell the balance only.

Persons for whose benefit - statutes of exemption are enacted are usually very poor people. It frequently happens that all the property they possess would not sell for $500, although it may be worth more than that to them. And we hold that, when a debtor makes it clear that he is claiming his exemptions and specifies the particular articles that he claims, it is the duty of the court to set aside those articles as exempt, and, if they are in excess of the amount the debtor is entitled to claim, the court should deliver to him as exempt articles not exceeding the value of $500, and sell the balance only.

The judgment of the court is reversed, and remanded with directions to allow the debtor his exemptions hy delivering to him the property claimed as exempt, not exceeding $500, or, if the property cannot be restored to him in as good condition as when taken from him, that he he given the value in money of such articles as cannot be so restored.


author: McHasey, J.

text:
    Sinclair Oil & Gas Company v. Langley.
    Opinion delivered May 2, 1927.
    1. MASTER AND SERVANT — SUFFICIENCY OF EVIDENCE. — In a suit by a pipe-fitter against his employer for injuries sustained while attempting to tighten a pipe connection, the evidence held not to show that it was a physical impossibility for the accident to have occurred as contended by plaintiff.
    2. Master and servant — negligence of fellow servant., — In a suit by a pipe-fitter against his employer for injuries sustained while attempting. to tighten a pipe connection, the evidence of negligence on the part of plaintiff’s fellow servant held sufficient to require submission of the issue to the jury. ,
    3. Trial — direction of verdict. — The trial court cannot direct a verdict against the plaintiff except where, conceding credibility of his witnesses and making all legitimate inferences, it is plain that his case is not sufficient in law to entitle him to a judgment.
    4. Master and servant. — An employer is liable for the injuries of a servant, though he was injured in taking the more hazardous of two ways to tighten a pipe connection, where he was working in the manner in which he was instructed to act by his foreman.
    5. Master and servant — contributory negligence. — Even though, there may be two ways open to an employee in which to perform his work, one of which turns out to be less dangerous than the other, and he attempts the other way, yet, if that way is not so dangerous that a person of ordinary prudence would not have undertaken it, the courts can not say that the employee was guilty of negligence because he chose that way which was reasonably safe, but not the safer.
    6. Appeal and error — discretion as to continuance. — Matters of continuance are largely in the discretion of the trial court, and no reversible error can be predicated thereon unless there is a manifest abuse of such discretion.

      Appeal from Nevada'Circuit Court; J. II. McCollum, Judge;
    affirmed.

      Rosooe R. Lynn, for appellant.

      C. B. Andrews and William F. Denman, for appellee.
   McHasey, J.

This action arises on account of a personal injury received by appellee while in the employ of appellant as a “connection” man, or pipe fitter, in the oil fields of Nevada County. A two and one-half inch pipe line had been laid on the ground from a near-hy oil well to a large storage tank, 15 feet in diameter and 25 feet high, and a riser pipe of the same size was connected therewith and erected on the outside of said tank, 18 inches above the top thereof. On top of this riser a tee joint was screwed, with a plug closing the hole in the top of the tee, and a discharge pipe 8 or 10 feet long threaded or screwed into the remaining opening in center of the tee. It is called a tee joint on account of its resemblance in shape to the capital letter “T.” This discharge pipe was so arranged as to discharge the oil coming from the well through this line of pipe into the tank and through a nipple or elbow joint attached to the end of the discharge pipe and extending down into the funnel opening in the top of the tank. Appellant’s foreman, after this line had been constructed as described, decided that the tee on top of the riser was not screwed down far enough, and directed appellee and his brother, a fellow-servant, to go upon top. of this tank, disconnect the nipple or .elbow joint from the end of the discharge pipe, and tighten the tee down. .While this testimony on this point is not very clear, we think this is the effect of the evidence. He said: “Q. What did he (the foreman) tell you to do-? A. Told us to take it off and make it tighter. I told him I didn’t think it would hear making tighter. He said, ‘Yes, make it tighter.’ We went hack up there and taken it loose, me and my brother, and taken this nipple out, it went in on the other side, and undertaken to make it up two more rounds.” They followed instructions, took the nipple off the tank-end of the discharge pipe, and proceeded to tighten the tee down by using the discharge pipe as a fulcrum, appel-lee baching up and pulling thereon, and his brother, on the opposite side, holding, steadying and pushing. When they had taken the end of the discharge pipe as far out over the edge of the tank as they could go, appellee went down to the- top of a lower adjacent tank, on the steps of a ladder or stairway leading from the top of one to the top of the other, and, by means of a pole, brought-the discharge pipe on around as far as possible, and then went back to the top of the tall tank, lassoed the discharge pipe with a rope and pulled it back to normal position. This was round oné. They proceeded in like manner on round two, but, as they approached near the edge of the tank in the same formation as in round one, for some unknown reason appellee’s brother turned loose his hold, which precipitated appellee and the discharge pipe off the tank, over the steps and down onto the top of the shorter tank, resulting in severe and painful injuries to various portions of his body, especially to his back and hips. Suit was brought, substantially alleging these facts as a basis of recovery. Issue was joined, a trial had, which resulted in a verdict and judgment for appellee in the sum of $2,000, and wherefore this appeal.

Counsel for appellant first contends that it was a physical impossibility for the accident to have occurred in the way appellee contends it did occur. He and his brother are the only witnesses to the accident. They are in substantial'accord as to how it occurred. It was submitted to the jury, and its finding is against appellant. Moreover, the accident did occur, and there is no dispute in the testimony as to how it occurred. We therefore hold appellant is wrong in this contention.

. Next it is contended that appellee’s testimony does not show actionable negligence. Without reciting the testimony verbatim, or again reviewing it, we hold that there was' sufficient testimony to submit to the jury this question; that is, whether the injury was caused by reason of the negligence of appellee’s fellow-servant in turning loose his hold on the discharge pipe as he did. A trial court cannot direct a verdict against the plaintiff except in eases where, conceding the credibility of the witnesses, and giving full effect to every legitimate inference that may be deduced from their testimony, it is plain that the plaintiff has not made out a case sufficient in law to entitle him to a verdict and judgment thereon.

The next contention is that, instead of screwing the tee down in the manner attempted, they should have disconnected the discharge pipe from the tee, and with a pipe wrench taken a turn or two on it. In other words, they took the more hazardous of two ways( to accomplish the purpose, and that the court erred in not instructing the jury as requested on this point. A sufficient answer to this contention is that they were doing the work in the manner they were instructed by the foreman, or at least in the manner they understood the foreman to instruct them to perform it. Also, the law is to the contrary. In the case of Hedrick v. H. D. Cooperage Co., 97 Ark. 553, 134 S. W. 957, this court said: “Even though there may be two ways open to an employee in which to perform his work, one of which turns out to be less dangerous than the other, and he adopts the other way, yet, if that way is not so dangerous that a person of ordinary prudence would not have undertaken it, the court should not say that the employee was guilty of negligence because he chose that way which was reasonably safe, but which was not the safer. We think, as is said in our former cases, that to adopt that rule would be to make the employee the insurer of his own safety in choosing between two methods of doing his work, either of which might be reasonably safe.”

Again, in St. L. I. M. & S. R. Co. v. Coutch, 111 Ark. 5, 162 S. W. 1103, in answer to a requested instruction that, “if the plaintiff had more than one method by which he might have performed his duties, and he voluntarily chose the more hazardous one, knowing it to be such, then the plaintiff made his choice at his own risk,” this court said: “It should not be said that, because plaintiff went between the cars when it was possible for him to have chosen a safer route around them, he was as a matter of law not entitled to recover. According to his testimony he chose that route under the direction of his foreman, and it had been the custom of the employees to cross over in that way. ’ ’

Other complaints are made by counsel for appellant relative to the giving of appellee’s instruction No. 1 and No. 2, but we do not deem it necessary to set them out, or to discuss them in detail. They were correct declarations of law applicable to this case, and many times sustained by this court. There was no error in the refusal of the court to grant appellant a continuance after counsel for appellee had stated his case. The request was made on the ground that the statement was materially different from the allegations of the complaint, but we do not agree with appellant in this regard. Matters of continuance are'largely in the discretion of the trial court, and no reversible error can be predicated thereon unless there is a manifest abuse of such discretion.

No error appearing, the judgment is affirmed.