text:
    Mutual Life Insurance Company v. Marsh.
    4-2804
    Opinion delivered January 23, 1933.

      Frederick L. Allen, Bose, Hemingway, Cantrell & Loughborough, for appellant.

      Martin & Martin, for appellee.
   Butler, J.

Action by appellee for total disability under the provisions of a policy issued by appellant. Judgment in the court below, from which is this appeal.

1. The appellant, Mutual Life Insurance Company, is a foreign corporation with, its domicile in the State of New York, and the appellee is a citizen of this State. The amount sued for was $3,000 and attorney’s fee. It is the contention of the appellant that the prayer for attorney’s fee made the amount sued for more than $3,000, exclusive of interest and costs, within the meaning of the Federal statute, and on that theory, in apt time, filed its petition for removal of the cause to the United States District Court in the proper district. The court overruled that motion,, and this action of the court is the first assignment of error urged upon our attention.

Counsel for appellant has cited a number of cases which support their view, but this court has recently had the identical question before it in the case of Missouri State Life Ins. Co. v. Johnson, ante p. 519, and ruled against the contention here made. On the authority of that case, we hold that the assignment urged is not well taken.

2. That portion of the policy involving the question of disability and the rights and duties of the parties in respect thereto is that, upon due proof to the company by insured “that he has become totally and permanently disabled by bodily injury or disease so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation,” during the continuance of the disability, and, after proof made, the payment of premiums accruing thereafter will be waived by the insurer, and it will pay to the insured a monthly income of $10 for each $1,000 of the face value of the policy, the first premium being due on receipt of said proof, and subsequent payment on the first day of each calendar month thereafter; that, after proof had been made and accepted, the insured nevertheless was required, no oftener than once a year, on demand of the insurer, to furnish proof of the continuance of the disability, and the right was reserved, if it should appear to the insurer that the insured had become and was able “to perform any work or follow any occupation whatever for gain or profit, no further premium shall he waived, and no further income shall he paid.”

The policy was for $2,000, issued on January 18, 1922; the premiums were regularly paid on or before their due date, and it was in full force and effect on July 28, 1926, the date of appellee’s injuries. Thereafter, ap-pellee made claim and furnished due proof of total and permanent disability occasioned by his injuries; the claim was allowed, and the insurer made the disability benefit payments of $20 per month to the insured regularly until and for the month of December, 1930. Ascertaining that the insured had been elected to the office of circuit clerk of Nevada County and was inducted into office on January 1, 1931, the insurer declined to make any further payments, on the ground that the insured was no longer permanently disabled within the meaning of the policy, but was able to work and engage in a gainful occupation.

At the time of the injuries received by the appellee, he was a traveling salesman for a drug company. As a result of his injuries, his right arm is totally paralyzed, his right leg, because of fractures it sustained, has become shorter, and its function impaired so that he uses it with pain and difficulty, and it is not more than 25 per cent, efficient. At the time of the trial of this cause and before, at intervals of about sixty days, a sinus develops in the upper part of the leg, causing appellee to run a high temperature and requiring his confinement in bed for a period of about two weeks. It was necessary at these times that the sinus be opened to allow drainage. After the sinus was thoroughly drained, he begins to feel better, and can get around for a while until the sinus develops again. On the right heel there is a constant sinus which causes appel-lee discomfort. He is unable to walk without the use of a cane, and is obliged to wear a shoe specially constructed to fit the right foot because of the shrinkage of the bone from the fracture.

It is conceded that appellee’s physical condition is permanent, and such as is calculated to lessen his power of resistance and to destroy his vitality. His mental powers have not been affected by his injury, and. his mind is as it was before the date of the accident. In the summer preceding the election he was able to, and did, conduct an active compaign for office; he went around the country in a car, having some one to drive for him, making the rounds with the other candidates and making frequent speeches to the voters, and was not seriously ill during the campaign. The appellee is not able to do any physical work in connection with his office, which requires a considerable amount of physical labor. The office is conducted by means of deputies. It is on a fee basis, and from the fees received the appellee pays for the deputies needed. He is able to sign his name with his left hand, and spends the time sitting around the office, giving it his general supervision. It appears that, with the exception of signing his name, the appellee is unable to do anything of a substantial nature in his office; and, while he is able to go to the office daily and usually to remain during office hours, some two or three’ times a week he is obliged to leave and go home about two o’clock because his injured leg requires rest. Although he conducts the office by deputies, he has received, in addition to the salaries paid to them, a substantial sum from the time he went into office until the date of the last trial in the court below.

From these facts, which are undisputed, it is strongly insisted that a case arises where the injuries, though great, and the disabilities, though serious, do not bring them within the nature of such as were contemplated when the policy was issued, and counsel do not believe a single case can be found where a recovery under such conditions has been sanctioned. It must be conceded that this is a unique case, and it is to be doubted whether one similar in all its circumstances has been before the courts. We do not agree, however, with the theory held by the appellant, for, if we adopt it, no case of total disability can arise except where not only the body is disabled, but the mind wrecked as well. No matter how seriously the body may be affected, there are those who, because of some peculiar ability or because of some happy chance, are still able, despite their handicap, to escape from beggary and to earn a living. Cases are not infrequent where men have been stricken totally blind and yet have earned substantial incomes; some, with their bodies totally disabled, have been able to conduct a successful business from the bed in which they are continuously confined; others, because of fortuitous circumstances, have been placed in a position where they were removed above want. These cases all arise, however, because of the possession of some extraordinary capacity or of some fortunate circumstance. Certainly, no cases of this character were in the minds of the insured or the insurer when the contract was entered into, but only the ordinary and usual events that would affect the ordinary person.

In construing contracts such as the one now before us, it has always been insisted by the insurer that a strict and literal interpretation is required, and a few courts .have adopted this view. The great majority, however, decline to do so, on the theory that a fair intention of the parties is that the insured should receive indemnity when he is so injured as would prevent him from carrying on any business which, without the injury, he is able to do or capable of engaging in. In the case of Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, the following rule was announced: "In the construction of all contracts, the true object is to arrive at the intention of the parties; and, in order to do that, it is necessary to take into consideration the purpose of the parties in making the agreement. In construing such a provision as is involved in this policy, that meaning should be given to the language which will be consistent with the fair import of the words used, having reference to the object and purpose of the parties in making the contract. The contract sued on is like any other insurance policy, and its provisions should therefore be construed most strongly against the insurer. As tbe language employed is tliat of tbe defendant, a construction will not be adopted wbicli will defeat a recovery if it is susceptible of a meaning that will permit one.”

In the instant case, it is undisputed that practically none of the essential duties of the office of circuit clerk is performed by the appellee. He merely sits around as long as his injuries will permit, signing his name and filing a few papers.

“This court has held that provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business do not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business, or the execution of them in the usual and customary way. * * * The object to be accomplished was to indemnify the insured for loss of time for being wholly disabled from prosecuting his business. It has been well said that, if the language used was to be construed literally, the insurer would be liable in no case,unless the insured should lose his life or his mind. Of course, as long as he is in possession of his mental faculties, he is capable of transacting some part of his business; but, as we have already seen, he was not able to prosecute his business within the meaning of the policy unless he was able to do all the substantial acts necessary to be done in its prosecution. The very purpose of obtaining the policy was to indemnify him in case he should become disabled, so that he could not carry on his business.” Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310, (quoting from pages 500-1). In that case Spencer, the insured, was engaged in the truck and produce business, and prior thereto had taught school and farmed. For several years he had suffered with sacroiliac arthritis and sciatic neuritis, which had disabled him to some extent, but finally he became so disabled that he could do but little work. He could walk around, but was unable to do anything in his place of business except sit around a part of the day answering the telephone and advising with his sons as to the conduct of the business. The contract of insurance in that case was practically the same as in the case at bar, and it was there held, under the rule stated, Spencer was entitled to recover. The rule announced was recognized in Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600, and in Travelers’ Protective Ass’n v. Stephens, Id., 660, 49 S. W. (2d) 364.

If the appellee had been circuit clerk at the time he was disabled, the fact that he could go to his office and sit around and sign his name would certainly not have precluded him from obtaining the benefits for which he had contracted and paid. ¥e can see no difference in his having obtained this office after the disability than in the state of case supposed, and we do not think that an office such as that of circuit clerk was in the mind of the parties at the time of the contract, or, under the facts in this case, that it comes within the term, “gainful occupation.” It has no degree of permanence, and in this particular case appears to he, so far as the appellee is concerned, a sinecure bestowed upon him perhaps because of his infirmities by an indulgent people. In any view of the case, since the appellee is not able to perform all of the substantial duties of the office in the usual and customary way, he is totally disabled within the rule announced in the case of Ætna Life Ins. Co. v. Spencer, supra, and, as the facts are not in dispute, the court properly directed a verdict for the plaintiff.

3. The court instructed the jury on the question of damages to the effect that, if they found that the appellee was totally and permanently disabled within the meaning of the policy, they might return a verdict for a sum equal to the present value of the monthly benefits payable monthly during the period of appellee’s life expectancy. The appellant contends that this was error, and in this contention we agree. The general rule permitting recovery on the theory of anticipatory breach is stated in Richards on the Law of Insurance, 4th ed., p. 580, § 342, as follows: “By the weight of authority, if the insurer renounces the continuing contract of insurance, upon his part, and unequivocally refuses in advance of its maturity to perform it, the insured may at his option take the insurer at his word. The insured is then relieved of the duty of further performance on his part, and may maintain an action at law for damages, before the specified date of expiration. * * *

“Especially is the rule clear where the insurer not only repudiates the contract by his declaration that he will not pay in future, but also violates a present obligation under the contract, by refusing to accept a premium when due. It would indeed be a harsh doctrine that compelled the insured to struggle on paying premiums all his life or tendering premiums to an unfriendly insurance company, in constant apprehension of a lawsuit in place of an immediate cash payment, as his family’s inheritance upon his own decease. The insurer’s refusal to perform his promise, however, must be distinct, unequivocal and absolute, and the reliance by the insured upon such renunciation must be equally clear to warrant his action for damages before maturity of the contract. And if, with knowledge of the facts, the insured elects to continue with the contract, he cannot subsequently exercise a second and inconsistent election to treat it as abrogated. ’ ’

The case of Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, cited in the text, is the leading case on that question, and supports the rule stated. There are many authorities holding in accordance with the rule announced in Boehm v. Horst, which we deem it unnecessary to cite, since that rule was approved by this court in the case of Kirchman v. Tuffli Bros., 92 Ark. 111, 122 S. W. 239, in the following language: “In the case of Boehm v. Horst, 33 C. C. A. 550, it was ruled that a positive and absolute refusal to carry out the contract prior to the date of actual default amounted to a breach of the contract, and that, after the renunciation of the agreement by the one party, the other party should be at liberty to consider himself absolved from any further performance of it, retaining his right to sue for any damage he has suffered from the breach of it. This case was affirmed by the Supreme Court of the United States in the case of Roehm v. Horst, 178 U. S. 1, [20 S. Ct. 780] and, we think, correctly announces the rights of the parties under such circumstances.”

In the instant case there was not a refusal to carry out the contract and a renunciation of the agreement, hut, in the course of the correspondence between the parties, when default was first made in the payment, there was simply the contention that, under the existing facts, the insured for the time being was no longer entitled to the monthly benefits. Recognizing that there had been no repudiation of the contract, appellee paid the premium January 25, 1932, and testified that the policy was still in effect, and in his complaint alleged that the contract had been put in force in January, 1922, and had remained in full force and effect thereafter, and was in full force and effect at the time of the filing of the suit. The appellant, in its answer expressly disavowed any repudiation, but affirmed the contract, and merely contended that under its terms the appellee was not entitled to the monthly benefits. This makes this case unlike that of Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, relied upon by appellee. In that case the plaintiff was allowed to recover the present value of the future benefit installments because the court found that there had been a total repudiation of the contract in that the insured, by letter, had in express words denied liability on the claim that the policy had lapsed. The court said: ‘ ‘ This letter evinced an intention on the part of the appellant not to be bound by the terms of the contract and was equivalent to a renunciation thereof.” That case followed the rule in Boehm v. Horst, supra. Since then there have been a number of cases before the court where recovery was allowed for damages for anticipatory breach, the latest cases being Liberty Life Ins. Co. v. Olive, 180 Ark. 339, 21 S. W. (2d) 405; Ætna Life Ins. Co. v. Spencer, supra; Travelers’ Protective Ass’n v. Stephens, supra; National Life & Acc. Ins. Co. v. Whitfield, ante p. 198; Atlas Life Ins Co. of Tulsa v. Bolling, ante p. 218. In all these cases it appears that damages for anticipatory breach were allowed because of an unqualified renunciation of the contract.

In the Whitfield case, the case of Ætna Life Ins. Co. v. Phifer, supra, was referred to as authority for the holding there made, and in the Bolling case the contract was repudiated on the allegation that it had been obtained through fraud. We have made diligent search and have been unable to find any case holding contrary to the rule announced in Richards on the Law of Insurance, expressly approved by this court in Kirchman v. Tuffli Bros., supra, and followed in subsequent cases.

4. Since the .judgment must be modified and limited to the amount of the matured monthly benefits at the time of the filing of the suit, it follows that the attorney’s fee was improperly allowed by the court as the amount to be recovered will not equal the amount sued for. Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384. It is therefore unnecessary for us to determine here the contention that § 6155 of Crawford & Moses’ Digest regarding attorney’s fees to be taxed as costs in certain cases does not apply in suits for damages for anticipatory breach.

The judgment of the trial court will be modified so as to eliminate the attorney’s fee, and all sums in excess of the benefits matured at the time of the filing of the suit, with six per cent, interest per annum thereon, and, as modified, will be affirmed without prejudice to the maintenance of further actions by the appellee upon the benefits now matured or such as shall hereafter fall due. It is so ordered.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Waddington v. Marshall.
    4-2829
    Opinion delivered January 23, 1933.

      8. Hubert Mayes, for appellant.

      Brickhouse i& Brickhouse, for appellee.
   Butler, J.

This is an appeal from judgments in favor of the appellees in suits for personal injuries and property damage alleged to have been sustained by them. The occurrence which gave rise to the litigation happened on December 12, 1931, when a truck owned by the appellant and driven by his son, J. B. Waddington, collided with an automobile belonging to the appellee, Dr. L. L. Marshall, in which the other appellees were riding.

It is admitted that the evidence is sufficient to sustain the finding that J. B. Waddington was negligent, in the operation of the truck driven by him, and the only point urged here is that there was an absence of proof showing that J. B. Waddington was the servant, agent, or employee of the appellant at the time of the accident. Both the appellant and his son, J. B. Waddington, testified in round terms that there was no connection between them in a business way; that each was engaged in a business, which, though similar in nature, was wholly independent. They were engaged in selling and delivering oatmeal cookies manufactured by Mrs. Mamie Ashton. They testified that each had a separate territory; that the appellant used a Chevrolet sedan and J. B. Waddington used a truck in working their respective territories; that they were not partners or connected in any way in business, and, while the truck was the property of appellant, J. B. Waddington, his son, rented it from appellant and paid for its use at the rate of ten cents for each package of cookies he distributed amounting to about $3 per day.

Mrs. Ashton testified that she had a contract with the appellant and J. B. Waddington by which they worked on a commission basis independent of her; that they would take the goods out, sell them, pay the witness the wholesale price and retain the profit; that the Wad-dingtons divided the routes between themselves and she kept separate accounts with them; that when J. B. Wad-dington bought cookies the charge was entered on his account and he settled with the witness. At one point in her testimony witness stated that J. B. Waddington always drove the truck and appellant drove the car.

It is insisted that this is all the testimony relative to the relationship between the appellant and J. B. Wad-dington, father and son, and that this fails to show any business connection between the two, either as partners or as employer and employee, and that the court should have directed a verdict for the appellant. We do not accept this contention. It is true that the Waddingtons testified emphatically that there was no business connection between them, but the jury was the sole judge of their credibility, and it did not believe what they said. Waddington, Jr., had also testified as emphatically regarding the collision as he did regarding the business relation with his father and his testimony was in direct conflict with that of disinterested bystanders who witnessed the accident. J. B. Waddington had no separate contract with Mrs. Ashton. The contract was between her as party of the first part and E. Gr. Waddington and J. B. Waddington as parties of the second part, and it, of itself, indicated that they were jointly engaged in the enterprise.

The undisputed facts are that the appellant had been in the business for four years before his son became interested; that this son was a high school boy in May, 1930, having graduated about that time. The record does not show whether he was a minor or not on the 12th day of December, 1931, or upon the date the contract was entered into, October 22, 1931. About the latter date however the appellant asked Mrs. Ashton if it would be all right for Jimmie (J. B. Waddington) to help him in the business and upon"her agreeing to this a joint contract was entered into. The Waddingtons made their own arrangements for separate routes. The truck which J. B. Waddington drove belonged to the appellant, and he kept it in repair, and, while Mrs. Ash-ton at one time stated that J. B. Waddington always drove the truck, in answer to a question by a juror she replied that both drove it from time to time. At the time of the accident the appellant was out of the State visiting in Illinois. Just how long he had been away and the date of his return was not shown, but during his absence J. B. Waddington was running the entire business. Mrs. Ashton testified that during the absence of the appellant, his son, J. B. Waddington, bought all the cookies which were handled under the contract in question.

J. B. Waddington, while testifying, was asked “When he (appellant) was out of the city, you had the whole territory?” He answered, “I had serviced his territory for him.” He was further asked, “You didn’t buy separately when he was out of town and you were running his route for him?” He answered, “I bought cookies for his territory under his account.” We think this testimony of J. B, Waddington and the circumstances connected with the operation of the business was substantial evidence to warrant the jury in the conclusion it reached, and the judgment is affirmed.


author: Kirby, J.

text:
    Taylor v. Hale.
    4-2758
    Opinion delivered January 23, 1933.

      M. A. Hathcoat, Robinson, House i& Moses and H. A. Meek, for appellant.

      J. Loyd Shouse and Shiim & Henley, for appellee.
   Kirby, J.

On September 1, 1931, the State Bank Commissioner took over five banks in Boone County as being insolvent. Taxes bad been assessed against these banks, in the time and manner required by law, for the year 1930, which had not been paid before they became delinquent. "When the time for payment had expired, and the taxes had not been paid, the collector of taxes for Boone County filed a motion, in the nature of an intervention, in the chancery court where the assets of the banks were being administered, praying that the Bank Commissioner be required to .pay these taxes out of such assets as he had on hand belonging to the respective banks.

The cause was heard on an agreed statement of facts, in which it was stipulated that the Commissioner had, pursuant to law, levied a 100 per cent, assessment against the stockholders of all five banks, but that the proceeds of this assessment, together with the other assets of said banks, would not suffice in any instance to discharge the claims of the creditors and depositors in full.

The chancellor held that there was a paramount lien for the taxes, and ordered them paid, and this appeal is from that decree.

It was stipulated that the taxes had been properly assessed, and that the lien therefor had attached before the banks were taken over by the Bank Commissioner. Section 9949, Crawford & Moses’ Digest, prescribes how these taxes shall be paid, and it reads as follows: “The taxes assessed upon the shares of stock thus listed shall be paid by the corporation or company, respectively, and they may recover from the owner or owners of such shares the amount of taxes to be paid by them, or deduct the same from the dividend accruing on such shares, and the amount paid shall be a lien on such shares, respectively, and shall be paid before a transfer of such stock or shares can be made. ’ ’

It is argued, for the reversal of the decree of the court below, that the Bank Commissioner cannot nay the taxes pursuant to this section, for the reason that the shares of stock have no real value; indeed, their ownership has become a liability, instead of an asset, and an assessment of tlie face value of these shares of stock has been made to discharge this liability, and that the Bank Commissioner has in his hands no funds with which to pay the taxes on the shares of stock due by the stockholders.

There is no controversy about the facts, and we are of opinion that the Bank Commissioner is correct in his contention.

It was said, in the case of First National Bank of Batesville v. Board of Equalization of Independence County, 92 Ark. 335, 122 S. W. 988, that the revenue statutes of this State contemplate that the shares of stock in hanks shall be taxed, and not the capital stock of the bank itself, and that the tax is assessed in solido against the bank as trustee or agent for its stockholders, and is to be paid by the bank and collected by it from its stockholders.

Many States have similar legislation. In the case of In re Feliciana Bank & Trust Co., 143 La. 46, 78 Sou. 169, it was said, by the Supreme Court of Louisiana, in construing a statute similar in essential respects to our own in regard to the taxation of banks, that State legislation upon the subject is responsive to the Federal legislation permitting the taxation, by the State, of shares in national banks, which would not otherwise be subject to taxation, and that the object and effect of the State legislation was to enable the State to reach, for taxing purposes, the capital stocks of banks as the property of its shareholders, thus placing the burden of State taxation equally upon National and State banks.

It was said in this Louisiana case that the tax is assessed on the shares of stock as the property of the shareholders, and that the liability for the tax is upon the shareholders, and not upon the bank, which, under the statute,’was construed as being merely the agency or instrumentality through which the tax is collected, and that the duty or obligation of the bank was merely to nay the tax out of the means or property of the shareholders in its possession — a method of collection supplementary to, and not exclusive of, the ordinary means available for the collection of taxes on personalty.

After thns declaring the law, it was held by the Supreme Court of Louisiana that a proceeding by the State against the liquidator of an insolvent bank for the collection of taxes assessed against its shareholders could not be maintained where it was neither alleged nor proved that the liquidator has, or that the bank had, on the date of insolvency any assets belonging or accruing to the shareholders.

In the instant ease there is, not only no allegation or proof that the Bank Commissioner has assets in his hands belonging to the shareholders with which to pay taxes, 'but, on the contrary, it is stipulated that all of the assets, including the 100 per cent, assessment made against the stockholders, will not be sufficient to discharge the claims of the creditors and depositors in full.

Other cases having the view expressed by the Louisiana court as to the liability of an insolvent bank for the taxes due from its stockholders on their shares of stock are: First Nat. Bank of Louisville v. Kentucky, 9 Wall. 353, 19 U. S. (L. ed.) 171; Primghar State Bank v. Rerick, 95 Iowa 238, 64 N. W. 801; Farmers’ & Traders’ Nat. Bank v. Hoffman, 93 Iowa 119, 61 N. W. 418; Court of Commissioners of Washington County v. State ex rel. Fairford Lumber Co., 172 Ala. 242, 5-5 Sou. 623; State v. Barnesville Nat. Bank, 134 Minn. 315, 159 N. W. 754; Baker v. King County, 17 Wash. 622, 50 Pac. 481; City of Boston v. Beal, 51 Fed. 306; Rosenblatt v. Johnston, 104 U. S. 462.

In 3 Cooley on Taxation (4th ed.) at § 1269, it is said: “Statutory liability is often imposed on corporations for taxes due from its stockholders or bondholders, in which case reimbursement is expressly provided for or is implied. The statutory liability of the corporation to pay the tax against stockholders carries with it an implied lien in favor of the corporation against the stock and the dividends for reimbursement. G-enerally, payment cannot be enforced against a corporation, where the tax is one on the stockholders, where the corporation is insolvent and in the hands of receivers. ’ ’

"We conclude therefore that the court was in error in directing the Bank Commissioner to pay the taxes of the stockholders on their stock when no funds were in his hands belonging', to them.

The decree of the court below will therefore be reversed, and the cause remanded with directions to deny the prayer of the collector of Boone County that the Bank Commissioner be required to pay the delinquent taxes.


author: Mehapey, J.

text:
    Kempner v. Stephens.
    4-2836
    Opinion delivered January 30, 1933.

      Bevens & Mundt, for appellant.

      Brewer i& Craeraft, for appellee.
   Mehapey, J.

On September 17,1928, J. A. Chambers, of Memphis, Tennessee, and associates, organized the Specification Motor Oil System, Incorporated. The capital stock was 25,000 shares of no par value. No money was paid in at the time of the incorporation, but Mr. Chambers testified that he was the owner of all the patents covering certain fixtures pertaining to the system, and that he exchanged his patent rights and property-rights, and became the sole owner of all the stock. He transferred 3,000 shares to Ike Kempner, and took Kemp-ner’s notes for $22,500. Chambers was president of the company, and Kempner was vice president and director.

The evidence showed that Kempner acquired 3,000 shares of stock in April, 1929. He did not pay any money, but executed his notes.

On December 13, 1929, H. O. Duke sold to the appel-lee, H. Gr. Stephens, stock in the corporation, and Stephens at the time gave him a check for $1,000 and a note for $1,000. This note was indorsed by Duke, and transferred to Chambers, and Chambers afterwards transferred the note to Kempner without indorsement. This note was given for stock sold in the corporation, and the Bine Sky Law was not complied with.

There was a jury trial, and a verdict and .judgment in favor of the appellee. To reverse that judgment, this appeal is prosecuted.

The statute prohibits the sale of stock by any dealer or corporation unless the person selling said stock has complied with the provisions of the Blue Sky Law. The term “dealer,” however, does not include the owner or issuer of such securities or stock who acquired the same for his own account in the usual and ordinary course of business, and not for the direct or indirect promotion of any speculative enterprise within the provisions of the act, provided such ownership is in good faith.

It is contended, however, by the appellant that the Blue Sky Laws of the State of Arkansas or the Arkansas Securities Act is not applicable to this case for the reason that H. C. Duke was not a dealer within the purview of the acts. If H. C. Duke owned the stock in good faith, and sold it in the usual course of business, this would not be a violation of the Blue Sky Law, and the note would be valid, or, if Kempner was an innocent purchaser, he would have a right to recover on the note. The question therefore is whether, under the evidence in this case, Duke was the owner in good faith, or whether this was the promotion of a speculative enterprise within the meaning of the law.

T. W. Lewis, who assisted in the sale of the stock, testified that he knew Duke and Chambers, and he knew about H. G-. Stephens purchasing 40 shares of the stock in the Specification Motor Oil System. He handled the transaction. Stephens bought the stock and paid $1,000 cash and gave a note for $1,000. The note was made to H. C. Duke. Duke at the same time sold part of his stock to Foster, Moore and Lewis. He asked Chambers over the ’phone if Duke was sent to Helena by Chambers to sell stock of the corporation, and that Chambers said he was; that Chambers stated that he handled the notes so that cash could be gotten. Lewis himself bought stock, gave a note, and afterwards paid it to Kempner, who held it at maturity. The stock had no value. Witness did not promote the sale of stock, but did talk to Stephens, and repeated the representations that Duke made to him. From general reports, the company has no financial standing. Witness had tried to sell his stock, but had been unable to do so.

B.. M. Foster, who bought stock, testified about the purchase of the stock, and about the sale to others in Helena; that he made a note and paid it to Ike Kempner. The note was made payable to Duke. Kempner told him that he regarded the stock as valuable. Duke represented to others that he was selling his individual stock. Duke and Chambers were present when witness made the note. He was afterwards made a director.

Stephens testified about purchasing the stock and paying the $1,000 cash and giving his note. He testified that the stock that he bought was not worth anything.

The witnesses for appellant contradicted the statements made by appellee’s witnesses, but the undisputed evidence shows that Kempner gave his note, or rather gave two notes, one for $17,500 and one for $5,000. After the suit was brought, Mr. Kempner died, and, of course, we do not have his testimony.

J. M. Kempner, son of Ike Kempner, and one of the executors of the estate, testified and introduced the original note, signed by Stephens. Kempner also testified that, when bis father received the note from Chambers, Chambers did not indorse it, and Mr. Kempner testified that it was not indorsed by' Chambers because his father had every reason to believe that the maker of the note would pay. He testified that his father knew that the note was given for stock, and all circumstances in evidence tend to show that he knew this.

While it is said that Mr. Kempner bought stock, giving his note for $22,500, and bought the stock as an investment, yet, in his dealings with Mr. Chambers, all of the stock for which he had given his note was taken back by Chambers, except 700 shares of it, and in exchange therefore he was given the notes of Stephens and others.

As we have said, no money was paid into the concern; Mr. Kempner was vice president and director, and there is substantial evidence that Duke was selling stock for Chambers. It is true this evidence is denied, but, when the evidence is in conflict, it is a question for the jury, and the court, at the request of the appellees, instructed the jury that, if Duke was the owner of the stock which he sold to Stephens and sold it in the ordinary and usual course of business, and he was in no sense a promoter of the same, it would not be necessary for him, as such owner, to comply with the Blue Sky Law, and that the sale, under such circumstances, would be perfectly valid, and the note be valid and binding.

The court also, at the request of the appellant, instructed the jury in effect that the defense to the action was that the Blue Sky Laws had not been complied with; that this defense could not stand or prevail as to Kemp-ner, who was suing on the note, unless the jury found that Kempner knew that the note was actually given for sale of stock, and unless they find also that the stock had been sold in violation of the Blue Sky Law; that, if they found that the Blue Sky Law had been violated, this would not defeat a recovery, but Kempner must have known at the time that he acquired the note, that it had been given for stock, and mnst have also known that the Bine Sky Law had not been complied with.

The court also, at the request of the appellant, instructed the jury that the burden was on appellee to show that Kempner had knowledge of the fact that the note sued on was given in payment of stock, and that such stock was sold in violation of the Blue Sky Law.

The court also gave an instruction, at the request of the appellee, that no person or corporation could engage in the business of selling or the offering for sale of securities until permission was given by the Arkansas Railroad Commission. In the same instruction the court told them that this does not include the owner or issuer, who acquires stock for his own account in the usual and ordinary course of business, and not for the direct or indirect promotion of any speculative enterprise.

The court told the jury that it is undisputed that neither Duke nor Chambers had complied with the Blue Sky Law, and that, if it appeared from the preponderance of the evidence that Duke, either acting for himself or as agent for Chambers, was engaged in the sale of stock of the Specification Motor Oil System, Incorporated, in the promotion of a speculative enterprise, and not in the usual and ordinary course of business, and, while engaged in said promotion sold the stock to appellee, the note would he void and unenforcible, unless they further found that Kempner purchased it without knowledge that said stock was sold in violation of law.

The evidence being in conflict, it was a question for the jury, and the question was submitted to the jury under proper instructions. The jury could not have found for appellee under the instructions of the court without finding that the stock was sold in violation of the Blue Sky Law, and that Kempner knew that the note was given in payment of stock sold in violation of the law. There is a full discussion of the questions involved here in the case of City Nat. Bank v. DeBaum, 166 Ark. 18, 265 S. W. 648. The court there said: “The statute relating to the organization of corporations does not require that all the stock authorized shall be subscribed before the Secretary of State shall issue the certificate of incorporation, but, after the corporation is organized and has become an entity, it comes within the operation of the Blue Sky Law, and cannot sell its unsubscribed stock, without first complying with the laws of the State governing such sales.

“As we have said, the notes sued on were executed for the stock of a corporation, and upon the authority of the Randle case, supra, the transaction was void unless the bank acquired them as an innocent purchaser.”

In the instant case, the corporation was organized and all of its stock immediately transferred to Chambers. Thereafter this stock was sold to Stephens, and, if in violation of the Blue Sky Law, the note was void and un-enforci'ble, unless Kempner acquired it as an innocent purchaser, and this question was submitted to the .jury, which found against appellant.

In another recent case we said: “If the corporation had been solvent, and, rio matter how prosperous it may have been, if it issued and sold the stock in violation of -the Blue Sky Law, and took the note for said stock, the note was void, and, if the appellee knew these facts, it could not recover.” Fentress v. City Nat. Bank, 172 Ark. 711, 290 S. W. 58.

It is next contended by the appellant that the court erred in permitting the defendant the opening and closing arguments. Section 4112 of Crawford & Moses’ Digest reads as follows: ‘ ‘ The party holding the affirmative of an issue must produce the evidence to prove it. ’ ’ Section 4113 reads: “The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side.” Section 1292 of Crawford & Moses’ Digest provides: “In the argument, the party having the burden of proof shall have the opening and conclusion.”

The burden of proof in the whole case was on the defendant. He admitted that he paid $1,000 cash and executed his note for $1,000, and the only defense that he interposed was that the stock was sold in violation of the Blue Sky Law. The burden was on him to prove this.

Appellant calls attention to tlie case of Roberts v. Padgett, 82 Ark 331, 101 S. W. 753. In that case the conrt said: “The defendant did not deny that he executed it, or that it had been assigned to the plaint: He undertook to show that it was procured by fraud and misrepresentations, and also that there was a failure of consideration; and he denied that the note had been transferred to plaintiff before maturity, or that plaintiff was a bona fide purchaser for value. But, as there was no denial of the execution of the note or its assignment to plaintiff before the action was commenced, it is evident that, had the defendant introduced no evidence, judgment would have been rendered against him, whether plaintiff introduced any evidence or not.”

The court also quoted with approval the following: “In all suits on promissory notes, bills of exchange, accounts, insurance policies, or any other form of money demands where the amount claimed is liquidated and can be ascertained without the necessity of proof, the defendant is entitled to open and close the evidence and argument if he relies for his defense solely on affirmative pleas, as payment, failure or want of consideration, or duress, set-off and counterclaim, usury, or other pleas in bar by way of confession and avoidance. ’ ’ 15 Enc. Plead. & Prac. 194.

The burden was upon the defendant in the only issues involved in this case, and this fact entitled him to open and conclude the argument. Columbian Woodmen v. Howle, 131 Ark. 299, 198 S. W. 286.

There was no error in permitting the defendant to open and conclude the argument. The jury was the judge of the credibility of the witnesses and the weight to be given to their testimony, and the finding on these questions is conclusive here.

We find no error, and the judgment is affirmed.


author: Mehaeey, J.

text:
    Roach v. Henry.
    4-2939
    Opinion delivered January 30, 1933.

      John Baxter, for appellant.

      W. W. Grubbs, for appellee.
   Mehaeey, J.

The Northwest Engineering Company, a foreign corporation, brought suit in Chicot Circuit Court on September 6,1932, against the petitioner, T. W. Roach, and on the same day a combined summons and attachment was issued against Roach, and at the same time a bond was filed and a writ of garnishment issued against Sternberg Company, Incorporated, a foreign corporation doing business in Arkansas. The writ of garnishment was served on the same day the complaint was filed.

The petitioner states that the only question to determine is one of jurisdiction. It is his contention that there was no suit actually commenced at tlie time tlie garnishment was issued, and that the garnishment is therefore void.

A civil action is commenced hy filing in the office of the clerk of the proper court a complaint, and causing a summons to be issued thereon. This was done on September 6,1932. Complaint was filed, and summons issued thereon.

The summons, however, was not served on Boach, but the respondent says that, under the allegations of the complaint and statements by counsel for plaintiff, which are not denied, at the time the complaint was filed and summons issued, Boach was engaged in levee work in Chicot County, and that before and since the filing of the suit Boach had been in the county from time to time. If Boach was in the county, as alleged by the respondent, where he could have been served, and the complaint was filed and summons issued thereon as alleged, action was begun on September 6, in accordance with § 1049 of Crawford & Moses’ Digest. The mere fact that the defendant was not served would not render the garnishment void.

We have held repeatedly that there must be a strict compliance with the requirements imposed by statute in order that the garnishment proceedings may be sustained, but conversely such a compliance with the statute is sufficient. Missouri Pacific Rd. Co. v. McLendon, 185 Ark. 204, 46 S. W. (2d) 626.

We think the statute was complied with, if the statements of respondent are true, and they are not denied. Moreover, as to whether the court had jurisdiction of the person of the defendant under the circumstances and facts in this case would have to be tried and determined by the trial court.

“It is well settled that, if the existence or nonexistence of .jurisdiction depends on contested facts, which the inferior court is competent to inquire into and determine, a writ of prohibition will not be granted, although the superior court should be of the opinion that the claims of fact had been wrongfully determined by the lower court, and, if rightfully determined, would have ousted the jurisdiction.” Mechanics’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 421.

On September 13 an affidavit was filed by the plaintiff for a warning order, and a warning order was issued on that day. This, however, was not necessarily an abandonment of the effort to get personal service. A man might be a resident of the county and still evade personal service.

When the plaintiff filed an affidavit and secured a warning order, he might still have intended to get personal service, but sought and obtained a warning order because he thought the defendant might evade service.

On December 3, 1932, the petitioner, Roach, filed a motion in the Chicot Circuit Court to quash the garnishment proceeding on the ground, first, as alleged by the petitioner, that plaintiff had filed its complaint in the circuit court on September 6, and that on said date a summons was issued, and also a garnishment was issued; second, that the sheriff failed to find Roach in Chicot County, and served the summons on a Mr. Grant, who was in charge of some equipment for Roach; third, that on September 13,1932, plaintiff’s attorney made and filed an affidavit for warning order for Roach; fourth, that Roach is a resident of the city of Memphis, and has never been a resident of Chicot County, and, fifth, that the garnishment proceeding was void because no suit was actually pending when the garnishment was issued.

As we have already said, under the facts stated by the respondent, which are not denied, the filing of the complaint and issuing of the summons on September 6 was the commencement of the suit.

Thereafter, on December 3, 1932, the petitioner filed a motion to quash the proceeding without limiting his appearance to that motion, and thereby entered his appearance generally.

The writ of prohibition is therefore denied.


author: McHaNey, J.

text:
    Missouri Pacific Railroad Company v. Johnson.
    4-2812
    Opinion delivered January 30, 1933.

      Harvey G. Combs, Thos. B. Pryor and if. L. Ponder, for appellant.

      Ward & Ward, for appellee.
   McHaNey, J.

Appellee brought this action against appellant to recover damages for the killing of one horse and injury done to another, by the operation of a train, in the total sum of $120, being $100 for the horse killed and $20 for the horse injured. He prayed for double damages and attorney’s fees under the statute. Appellant defended on the grounds that it was not guilty of any negligence in the killing and injury of said stock, and that the horses ran upon the track in such close proximity to the train that it was impossible ■ for the operatives to stop the train in time to avoid injuring them. The case was submitted to a jury, and the following verdict was returned: “We, the jury, find for the plaintiff, E. C. Johnson, against the defendant, in the sum of $100.” Appellee requested the court to render judgment on the verdict in the sum of $200 and a reasonable attorney’s fee, which the court declined to do, but entered a judgment for $100, in accordance with the verdict. There is an appeal by the railroad company and a cross-appeal by appellee.

The first and principal assignment of error urged by appellant is that the court erred in refusing to direct a verdict in its favor at its request. We do not agree with appellant in this contention. The facts, briefly stated, are as follows: The train was running south through Piggott, Arkansas, at a slow rate of speed. The horses were on the track between a quarter and one-half mile north of the depot in the town of Piggott. The stock alarm was given by the operatives, when the horses began running down the tracks. They continued to run down the tracks, past the depot and onto a trestle some two or three hundred yards south of the depot where one of them was killed and the other slightly injured. The one killed failed to get across the trestle because his hind feet fell through the trestle and the train ran against it and killed it. The other got across but was injured by being struck by the train. The train came to a stop with the engine a short distance south of the trestle. Several eyewitnesses, other than the engineer and fireman, testified as to how the accident happened, but the substance of the testimony is that the horses ran down the tracks, then off to the side of the tracks, then back on the tracks, always ahead of the train, and would probably have escaped had they not tried to cross the trestle. For a distance of approximately a one-half mile therefore these animals were running along and by the side of the tracks, in a dangerous position, to the knowledge of the engineer and fireman, who were giving the stock signals all the time.

They therefore had plenty of time to stop the train, or to have had it under such control as to be able to stop it, without doing injury to the stock. They knew that the trestle was ahead, and that, if the horses attempted to cross same they would likely be injured. In Paragould Southeastern Ry. Co. v. Crunk, 81 Ark. 35, 98 S. W. 682, which was a case where a horse was injured in a trestle by being frightened hy the approaching train and running into the trestle, a similar contention was made as in this case. There the court quoted from Railroad Co. v. Ferguson, 57 Ark. 18, 20 S. W. 545, 18 L. R. A. 110, 38 Am. St. Rep. 217, that “appellant did owe the appellee the duty, when it discovered^ its colt upon its track, to use ordinary or reasonable care to avoid injury to it by running its train against it, or by frightening and driving it by unnecessary alarms against the wire fence,” and said: “Generally speaking, ordinary or reasonable care does not require a train to be stopped in order to avoid injury to stock on the track; but there may be facts which make the stoppage only ordinary care to avoid the injury which would otherwise occur, and there were sufficient facts in this case to send that question to the jury.” So here these colts, according to one witness, never did get off the track, but, according to others, they were off and on several times before attempting to cross the trestle, and we are of the opinion that it was a question for the jury as to whether the operatives exercised ordinary care to prevent injurying them.

Complaint is also made by appellant of the refusal of the court to give two instructions requested by it, Nos. 2 and 3. We think these instructions were properly refused, and, in so far as they were correct, were fully covered by other instructions given by the court on its own motion.

On the cross-appeal of appellee, but little need be said, as the court correctly declined to enter judgment for double damages as provided under certain conditions defined in § 8563, Crawford & Moses’ Digest. The proviso to that section relating to double damages reads as follows: “And provided further that, if the owner of such stock killed or wounded shall bring suit against such railroad after the thirty days have expired, and the jury trying such cause shall give such owner a less amount of damage than he sues for, then such owner shall recover only the amount given him by said jury and not be entitled to recover any attorney’s fees. ’ ’

Here appellant made demand for $120 for both animals and prayed double damages in the sum of $240 and attorney’s fees. The .jury returned a verdict for $100, without stating whether it was for the value of the horse killed or the value of the horse killed plus damages for the horse injured. We are unable to say that the verdict related to the dead horse only, but, iu any event, appel-lee failed to recover the amount sued for, so, under the plain provisions of the statute, he was not entitled to recover double damages or attorney’s fees.

The judgment will be affirmed both on the appeal and cross-appeal.


text:
    Central States Life Insurance Company v. Hale.
    4-2830
    Opinion delivered January 30, 1933.

      Pratt P. Bacon and Maim & Mam%, for appellant.

      Shaver, Shaver $ Williams, for appellee.
   Butler, J.

The appellant in this case admits liability for the face value of a certain policy of insurance, the obligations of which it assumed, but it denied liability under the double indemnity clause. From a judgment against this contention in the circuit court, the appellant has prosecuted this appeal.

The pertinent facts are undisputed and are these: The premiums were payable quarterly, and the last premium before the date of the injury was ’ due on October 19, 1931, with thirty-one days of grace in which to pay the same. The insured was fatally injured in the afternoon of the 19th day of November, 1931, and died on the 21st day of that month. She was so badly injured that she was rendered unconscious and remained in that state until her death. The premium falling due in October, 1931, was not paid, hut the policy was still in force on the date of the accident by virtue of the thirty-one day grace period allowed for the payment of premiums, which period did not expire until the day following the accident, but did expire before the death of the insured.

That part of the policy which the appellant insists exempts it from liability on the double indemnity benefit provides, among other things, that, after the first year’s premiums have been paid and while the policy is in full force and effect, if the insured, from any cause arising after the delivery of the policy, shall become permanently disabled so as not to be able to do any work of “com-pensable value,” upon receipt of proof the insurer shall waive the payment of any premium or premiums that might become payable thereafter, ‘ ‘ except premiums for double indemnity benefits”; and, continuing, the policy further provided (referring to the double indemnity clause): “This supplemental contract shall cease to be in force when the insured shall attain the age of 43 years, or when any premium provided for in the principal contract shall not be paid when due, or within the days of grace therein set forth, or when premiums on said principal contract shall cease to be payable, or when a ‘premium shall he paid hy the company for insured under any permanent disability clause attached to this policy.” The provisions in the foregoing clause of the policy which provide that the waiver of payment of any premium because of disability does not include premiums for double indemnity benefits, and the further provision that when a premium shall be paid by the company for the insured under any permanent disability clause, the contract shall cease to be in force, are the special provisions which it is claimed exempts the appellant from liability on the double indemnity feature of the policy in question. The supplemental contract, called “Double Indemnity and Beneficiary Insurance,” begins with the following statement: “In the event of the death of the insured by bodily injury effected exclusively by external, violent and accidental means and occurring within ninety days after such injury, the amount payable hereunder as above shall be double the face value of this policy.”

In the eighth paragraph of disability clause No. 2 is the following provision: “This supplemental contract shall terminate and all benefits hereunder shall terminate upon the termination, forfeiture, cancellation, maturity or exchange of the policy first herein above described, and the company shall not be obliged to issue any similar contract in connection with any substituted policy which may thereafter be issued in exchange therefor. ’ ’

The appellant insists that, under the agreed facts and the stipulations in the policy, if “it had not been for the fact that the insured was permanently injured and the injury resulted in death, this policy would have lapsed for the nonpayment of the premium, because the insured did not die until after the lapse of the thirty-one day grace period,” and that, since this is bound to be true, no liability can attach for double indemnity benefits. We agree with the appellant in the statement above quoted, but are unable to assent to the conclusion that follows. The reason is that the insured was permanently injured while the policy was in full force and effect. By paragraph No. 8 of the disability clause No. 2 it was provided that the contract should terminate upon forfeiture of the policy. The policy had not forfeited when the accident occurred, and no premium was then in default, nor was it necessary that any be waived or paid before the day following the accident. It was the accident resulting in death that was the subject of the insurance, and the liability became fixed at the moment of the injury.

In Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, the appellant contended that, under a total disability clause, liability did not begin until six months after final proof of the injury and disability, but we there held that liability attached when disability occurred.

The facts in the case of Burkheiser v. Mutual Accident Association, etc., 61 Fed. 816, 26 L. R. A. 112, were as follows: The insured, husband of plaintiff (appellant), was insured under a certain policy dated October 4,1890, against injury during the continuance of the policy through external, violent and accidental means, and, if death resulted from accident within ninety days, a certain amount would he payable to the beneficiary. It was provided that, if any member of the association should fail to remit to it the amount of any assessment made within thirty days from notice thereof, he should cease to be a member. It was further provided for reinstatement of a member in default, but that any. member so reinstated should not be entitled to any indemnity for injury sustained during the period he was in default. On the 15th day of December, 1890, the company levied an assessment upon its members, payable on the 15th day of January, 1891, notice of which was given to Burkheiser on December 15, 1890. Under the terms of the policy, he had thirty days from the 15th day of December to pay the assessment upon failure to pay which he would be in default, and his membership would cease. On December 20th the insured met with an accident within the terms of the policy, from the sole effects of which he died on January 23, 1891, which was after the thirty-day grace period had lapsed, without having paid the assessment levied.

On that state of case the district court ruled that the company was not liable under the terms of the policy, and directed a verdict in its favor. On appeal, the Circuit Court of Appeals held that the trial court erred in its ruling, and in doing so said: “The correctness of the ruling is dependent upon the proper construction to be given to the contract of insurance in question. If liability for an accidental injury came to an end when Mr. Burk-heiser, by reason of default in payment of the assessment, ceased to be a member of the association, the instruction was correct. If, however, liability for an accident occurring during the membership in the association continued, notwithstanding the cessation of membership after the accident, then the instruction was wrong, and the court should have directed a verdict for the plaintiff. The policy insures against personal bodily injuries effected during the continuance of membership in this insurance tbrongli external, violent and accidental means. The language of the contract is plain and unambiguous. It was clearly designed to effect the object of the association, wbicb was to indemnify for injury sustained during membership. The consideration paid by the assured is for such protection. The injury which resulted in the death of Mr. Burkheiser occurred during such membership. The accidental injury was the cause; the death, the consequence. The contract indemnified against injury produced by accident as the operating cause, and occurring during membership. The contract, with respect to liability of the company, had relation to the time of the happening of the accident, not to the time of the final outcome of the injury, or to the time when liability should be discharged by payment. The liability of the association became absolute upon the occurrence of the accident, the amount of indemnity and the person to whom it should be payable being contingent upon the character and result of the injury sustained; as to the plaintiff, contingent only upon the death of the assured within the stated time. It was not contingent upon continuation of membership, either within the letter or spirit of the contract. There was no obligation on the part of the assured to continue in membership after an injury, nor does his failure so to do result in forfeiture of indemnity for injuries theretofore received, or in discharge of liability theretofore incurred.”

In Railway Mail Association v. Dent, (C. C. A.) 213 Fed. 981, where the association promised to pay the beneficiary a certain sum in case the insured “received injuries through external, violent and accidental means, resulting in his death from such injuries within 120 days, ’ ’ it was said: “The death was the result of the accident alone, and the accident happened before the amendment. The insurance was against accident, not death, as in an ordinary life policy. The subsequent death was relevant only as indicating the extent of the accidental injury. The cause of action against the association arose when the accident occurred, and was not subject to impairment by subsequent default of the insured in the conditions of continued membership. The insurance being in force at the time of accident, the right of the beneficiary would not have been affected by its lapse before the death ensued. ’ ’

As liability attached upon the happening of the accident, which was the contingency insured against, and at a time when the policy was in effect, it would be immaterial when death resulted if it occurred within the ninety-day period, for the death was relevant only as indicating the extent of the accidental injury. There were no premiums to be waived or paid by the company. Therefore the clauses in the policy relied on have no application, and the trial court was correct in holding that the appellant was liable on the double indemnity clause, and it was proper to include in the judgment a twelve per cent, penalty and reasonable attorney’s fees. The judgment of the trial court will therefore be affirmed.


author: Btttleb, J.

text:
    Milsap v. Holland.
    4-2839
    Opinion delivered January 20, 1933.

      W. A. Dickson and Price Dickson, for appellant.

      Earl Blansetteaid John Mayes, for appellee.
   Btttleb, J.

This case was before this court on appeal at its November term, 1931. The opinion on the judgment then rendered appears in 184 Ark., at page 996, 44 S. W. (2d) 662. The mandate reversing the judgment of the trial court with directions was filed in the lower court, hut, not being- entered of record, it was refiled with a motion requesting the court to enter of record the said mandate and to affirm the judgment of the county board of education consolidating the two districts in accordance with the judgment of this court. A reply to that motion was filed by W. N. Holland and others, and upon a hearing of the matter the circuit court ordered the mandate of this court stricken from the files, and that the cause be dismissed for want of jurisdiction of said Supreme Court, the circuit court and the county board of education. From that order and judgment this appeal is prosecuted.

It is the contention of the appellees, and the conclusions reached by the trial court, that the issue presented by the appellees in the instant case was not adjudicated before the circuit court or this court on appeal, and, as it now appears that the notice was not in fact legally given within the rule announced in Texarkana Special School Dist. v. Consolidated School Dist. No. 2, 185 Ark. 213, 46 S. W. (2d) 631; Shook v. Morrison, Ib. 522, 47 S. W. (2d) 1089, and Ellis v. Gann, Ib. 625, 48 S. W. (2d) 1103, the order of the county board of education was void, and neither the circuit court nor this court acquired any jurisdiction on appeal; that for that reason the judgment of this court reversing and remanding that of the circuit court was, afi.d is, void, and that the circuit court therefore was justified in making the order last appealed from and its action should here be sustained.

A number of cases from this court and other jurisdictions are cited by the appellees as tending to sustain their contention, but which we find it unnecessary to review, as we are of the opinion that the appellees are in error in their contention, i.e., that the question of jurisdiction was not before the court on appeal to the circuit court from the order of the county board of education consolidating the districts or in this court on appeal from the judgment of the circuit court. The facts out of which this litigation arose are fully stated in Milsap v. Holland, 184 Ark. 996, 44 S. W. (2d) 662, and from the opinion it will be seen that on appeal to the circuit court that court found the facts and law in favor of the remonstrants and adjudged that the petition for consolidation be dismissed for want of jurisdiction. The opinion in Milsap v. Holland, supra, shows that the county board of education, among other things, found that due notice had been given as required by statute, and in the statement of the case it was said: “Notice of the proposed consolidation was duly given as required by statute and was introduced in evidence.”

The judgment of the court appealed from and the opinion of this court on that appeal are sufficient to disclose that the issue as to the jurisdiction of the court was considered and the judgment of this court and its mandate based thereon are binding upon the trial court, and this court as well, even though our decision may have been based upon an erroneous view of the law. It is a rule of universal application early recognized by this court, that whatever is before the Supreme Court and disposed of in its appellate jurisdiction is to be considered as settled, and the lower court must carry its judgment into execution according to the mandate. This remains true even where an error is apparent and where a case has been remanded to the trial court and is again brought before the Supreme Court nothing is before the court for adjudication but the proceedings subsequent to the mandate. It will be observed that the term of this court at which the case of Milsap v. Holland, supra, was decided has long since expired, and we have no power to review or reform the judgment and opinion which irrevocably concludes the rights of the parties thereby adjudicated.

In Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S. W. 741, the case was here on second appeal, and, in referring to the decision on the first appeal, we said: “Whether this decision was right or wrong, it is a law of the case; it is res judicata. The rule has been long established in this State and uniformly adhered to that in the same cause this court will not reverse nor revise its former decisions. ’ ’ Numerous decisions of this court are cited to sustain the rule announced, and the reason is thus stated: ‘ ‘ This general rule is grounded on public policy, experience, and reason. If all questions that have been determined by this court are to be regarded as still open for discussion and revision in the same cause, there would be no end of their litigation until the financial ability of the parties and ingenuity of their counsel had been exhausted. A rule that has been so long established and acted upon and that is so important to the practical administration of justice in the courts should be followed and not departed from.”

In that case the issue was the constitutionality of the severence tax act. Referring to the first appeal in the case, the court said: “The act was held to be constitutional on the ground that it was an occupation tax, and no testimony or raising of additional issues as to the construction of the act or its applicability to appellants can prevent our former decision and judgment from being the law of the case.”

On the hearing of the motion granted by the court below and from which comes the appeal we are now considering, no additional testimony was heard, but the motion was considered on the record made in the case decided in Milsap v. Holland, supra. Therefore all the questions expressly or necessarily involved in the former appeal must be deemed to have been considered and must be regarded as tbe law of tbis ease. It follows from wbat we have said that tbe action of tbe circuit court in refusing to obey tbe mandate of tbis court must be reversed and tbe cause remanded witb directions to enter judgment in accordance witb tbe said mandate.


author: Smith, J.

text:
    Turner v. Walnut Ridge.
    Grim. 3829
    Opinion delivered February 6, 1933.

      Beloate .& Beloate, for appellant.

      W. P. Smith, for appellee.
   Smith, J.

A decision of tbe question of tbe sufficiency of tbe testimony to support tbe conviction of appellant upon a charge of possessing intoxicating liquor for tbe purpose of sale is decisive of tbis appeal, and we consider no other question.

Tbe testimony, competent or otherwise, tending to support tbe conviction of tbe appellant is to tbe following effect.

W. E. Archer testified that be went to appellant’s borne to search it for liquor. Appellant was not at borne, and bis wife objected to a search of tbe bouse in her husband’s absence. Witness went to a back porch and found that some one bad poured out some liquor, which was running- through a crack in the floor. Witness called for appellant, and they returned together to the house. Appellant admitted he had five gallons of grape juice, which he said he had made for his own use.

William Buchanan, the marshal of the city of Walnut Ridge, testified that he had had quite a bit of complaint about appellant as a “king” bootlegger. He and witness Archer went to the house together. When they were denied the right to search the home in the absence of appellant, witness went to town in his car and returned with appellant. Upon his return to the house he found that something had been poured out on the back porch which smelled like whiskey. They found nothing except a five-gallon glass jar filled with grape wine. Witness supposed appellant’s wife destroyed something on the back porch which smelled like whiskey.

■Cliff Wilkerson went with the officers to appellant’s home, and he saw appellant’s wife pour out something-on the back porch which witness thought was whiskey. This witness also saw the wine.

The testimony did not show the kind or the capacity of the container out of which the whiskey was poured, whether a bottle, or a jug, or what not, and no witness testified that appellant had, at any time, ever sold any intoxicating liquor at his home or elsewhere.

The Supreme Court of the United States, in the very recent case of Grau v. United States, 287 U. S. 124, 53 S. Ct. 38, said that: “While a dwelling used as a manu-factory or headquarters for merchandising may well be and doubtless often is the place of sale, its use for those purposes is not alone probable cause for believing- that actual sales are there made.”

This was a liquor case, and it will be observed that the Supreme Court of the United States said that the use of a dwelling as a manufactory or headquarters for merchandising was not even probable cause for believing that actual sales are there made, upon which an affidavit might be predicated to obtain a search warrant.

We are not required to go to this .extent to reach the conclusion that there was no sufficient testimony to sustain the conviction of appellant for possessing liquor for the purpose of sale.

The testimony recited raises a serious suspicion that appellant had intoxicating liquor at his home for the purpose of sale; but convictions cannot be sustained upon suspicion merely. There must be testimony which, when given its highest probative value, proves that the accused had committed the offense charged. As was said in the case of Reed v. State, 97 Ark. 156, 133 S. W. 604, (to quote the headnote in that case): “Mere circumstances of suspicion are not sufficient to support a conviction of crime, which must be established by substantia, evidence to the exclusion of a reasonable doubt.”

Having reached the conclusion that the testimony is insufficient to sustain the verdict, the judgment must be reversed, and the cause will be dismissed.


text:
    Wilcox v. McCallister.
    4-2831
    Opinion delivered February 6, 1933.

      G. W. Botts, for appellant.

      Bay 8. Gibson, for appellee.
   Smith, J.

In 1925, while J. C. Wilcox was county judge of Arkansas County, a contract was let, upon competitive bidding, for the erection of a bridge in that county. The lowest bid received was made by Ross Duckett, who offered to build the bridge for $177.75. Tbe other bids ran as high as $375.

The contract appears to have been let by the county judge, and not by the county court; but the bridge was built, and is now in use, and was accepted by the county, and an allowance was made by the county court covering this claim, upon which a county warrant was issued and delivered in the sum of $177.75.

After the issuance of this warrant, an order was made by the county court calling in all outstanding warrants for the purpose of reissuance, and this warrant was taken up and a new warrant issued therefor, which Wilcox acquired in due course.

Wilcox had a contract with the .St. Louis Southwestern Railroad. Company to furnish the county scrip used by that company in paying its county taxes in Arkansas County. He sent the warrant in question, along with a number of others, to the railroad company, with a letter from the county collector reading as follows:

“Stuttgart, Ark., March 14, 1927.

“The county warrants as listed below on this sheet will be accepted for taxes at the face value for the taxes of 1926, provided the warrants do not exceed the amount due the county.”

Under the contract for the sale of this scrip, Wilcox had agreed to refund to the railroad company the purchase price of any scrip which the collector refused, for any reason, to accept. The railroad company tendered this scrip to the collector in payment of its county taxes, and all of it was received for that purpose except the warrant in question, which the collector declined to receive for reasons later stated. The railroad company returned this piece of scrip to Wilcox, who also tendered it in payment of taxes, and, upon this tender being refused, lie brought suit to require the collector to receive it in payment of county taxes.

A few days after Wilcox retired from the office of county judge, Ms successor brought a suit, on the relation of the State for the use of Arkansas County, against the sheriff and collector, the county clerk and the treasurer of the county, praying that the warrant be canceled as having been issued without legal authority. Wilcox testified that he was not a party to this litigation, and was not advised of its pendency until the court had rendered a final decree. No defense was made to this suit, and the warrant was adjudged to have been illegally issued, and the officers named were enjoined from receiving it for o any purpose, and it was decreed that it be canceled.

The defendants in the instant case, which is a suit to compel the collecting officers of Arkansas County to accept this scrip in payment of taxes, pleaded this decree of the chancery court as a bar to the suit, and also raised certain other questions which will be discussed.

Wilcox was not and is not bound by this decree, for the reason that he was not a party thereto. The proceeding in which the warrant was declared void was not a proceeding under the statute calling in and reissuing the county scrip, of which notice had been given.

It was alleged in the complaint filed in the chancery court, and is here alleged, that the contract to construct the bridge was let by the county judge, and not by the county court, and that § '2028, Crawford & Moses’ Digest, relating to the allowance of demands against a county, was not complied with, in that a claim had not been made out and verified as required by that section of the statute.

The testimony does not show any fraud or collusion between the county judge and the contractor in letting the contract, and the undisputed testimony establishes the following facts:

There was no showing whether there had been an appropriation by the county court to build bridges. The bridge in question was built, and accepted by the county judge, and used by the public. A claim covering the contract price, which Wilcox testified was not increased on account of the depreciated value of the county scrip, was filed with the county clerk. The same was presented to and allowed by the county court, and a warrant covering the allowance was issued on June 6, 1925. It is alleged, in the answer in the instant case, that the claim was issued for a sum $27.75 more than was due for the construction of the bridge and the material furnished therefor; but this allegation was not established by the testimony.

The court below denied the prayer for mandamus, and this appeal is from that judgment.

We think the court was in error in its judgment. The law is that the county court may ratify an unauthorized contract made by the county judge in behalf of the county if the contract is one which the court could have made in the first instance. Greenberg Iron Co. v. Dixon, 127 Ark. 470, 192 S. W. 379. The contract in question was clearly one which the county court had the power to make, and the undisputed testimony shows its subsequent ratification by the county court.

It was also held, in the case just cited, that, when an order has been made by the county court calling in for reissuance the outstanding scrip, the court is not authorized to review its original order allowing the claim upon which scrip was issued for mere errors in the allowance of the claim, but can only reject those warrants presented for reissuance which were illegally or fraudulently issued. It was there also held that ‘ ‘ a claim would be illegal where it was one which, under no evidence that might have been adduced, could have been a valid claim against the county. Izard County v. Vincennes Bridge Co., 122 Ark. 557, 184 S. W. 67, and Monroe County v. Brown, 118 Ark. 524, 177 S. W. 40. It will be readily seen that evidence might have been introduced to show that the levying court had made an appropriation for building bridges, and, upon the authorities just cited, it may be said that in the absence of such affirmative showing' the presumption is that such appropriation was made.” See also Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 570, and Howard County v. Lambright, 72 Ark. 330, 80 S. W. 148. The case of Shofner v. Dowell, 168 Ark. 229, 269 S. W. 987, cites other cases to the same effect.

As has been said, the warrant here in question had been reissued by the county court under a calling-in order made by that court, and, as testimony might have been offered, when this was done, that an appropriation had been made for building bridges, the presumption must be indulged that there was such an appropriation. It may be said, aside from this presumption, that there was no testimony at the trial from which this appeal comes that no appropriation for building bridges had been made.

We conclude therefore that the warrant in question was and is a valid obligation of Arkansas County, and should be received as such.

The judgment of the court below is therefore reversed, and the cause will be remanded with directions to grant the writ of mandamus as prayed, and it is so ordered.


author: Humphreys, J.

text:
    Big Rock Stone & Material Company v. United States Fidelity & Guaranty Company.
    4-2840
    Opinion delivered February 6, 1933.

      Chas. A. Walls, for appellant.

      Wm. M. Sail and O. E. Williams, for appellee.
   Humphreys, J.

Appellant 'brought suit on October 21, 1931, against appellee in the circuit court of Pulaski County, Second Division, upon a surety bond to recover $1,18i8.40, with interest, for stone furnished by it to Mc-Williams Company, Inc., to complete certain work it had undertaken to do for Farelly Lake Levee District under written contract executed on July 21, 1926. The bond, made the basis of the action, is as follows:

“ Whereas, Geo. C. Lewis and A. Lawrence Mills, receivers for the Farelly Lake Levee District of Arkansas and Jefferson counties, Arkansas, have on this date entered into a construction contract with McWilliams Company, Inc., for the performance of certain work, as shown by the supplemental contract attached hereto, and

“Whereas, said McWilliams Company, Inc., have agreed to execute a surety bond in the sum of fifty thousand dollars to guarantee the faithful performance of said supplemental contract;

“Now therefore we, the undersigned, McWilliams Company, Inc., as principal, and the United States Fidelity & Guaranty Company, a corporation, as surety, hereby acknowledge ourselves indebted to the State of Arkansas for the use and benefit of Farelly Lake Levee District of Arkansas and Jefferson counties, in the sum of $50,000 that the said McWilliams Company, Inc., a corporation, shall well and truly perform all and singular the several respective agreements set out in the supplemental contract made on this the 20th day of October, 1928, by and between the said Geo. C. Lewis and A. Lawrence Mills, as receivers of Farelly Lake Levee District of Arkansas and Jefferson counties, a copy of which agreement is hereunto attached and made a part hereof.

“Now, if McWilliams Company, Inc., a corporation, well and truly perform said agreement, this bond to be null and void; otherwise, it is to remain in full force and effect from now and after this date.

“Witness our hands and seal of said corporation on this 20th day of October, 19'28.

“McWilliams Company, Inc., a Corporation,

“By R. H. McWilliams, Jr., President, Principal,

“United States Fidelity & Guaranty Company, a Corporation,

“By Wylie B. Miller, Surety.”

The supplemental contract attached to said bond is as follows:

‘ ‘ This agreement made and entered into on this 20th day of October, 1928, by and between Geo. O. Lewis and A. Lawrence Mills, as receivers of Farelly Late Levee District of Arkansas and Jefferson counties, Arkansas, parties of the first part, hereinafter referred to as receivers, and McWilliams Company, Inc., , second parties, hereinafter referred to as contractor, witnesseth:

“1. That contractor hereby agrees with said receivers to complete the floodgates, point up the walls, and clean off floors as provided by a certain contract now existing between said Levee District and second parties, on or before November 15, 1928.

“2. That contractor hereby agrees with said receivers to reconstruct or repair Fin Wall No. 2, which is now cracked, so as to make it meet with the requirements of the plans and specifications governing said work under the original contract, which work is to be performed and completed on or before December 1,1928.

“3. That contractor hereby agrees with said receivers to install and complete the rip rap stone work in accordance with the requirements of the plans and specifications governing said work under the original contract on or before December 15, 1928.

“4. That contractor hereby agrees with said receivers to construct the inlet and outlet channels to the floodgates in accordance with the plans and specifications governing said work under the original contract, which inlet and outlet are to he completed on or before December 31, 1928.

“5. Contractor hereby agrees to execute and deliver surety bond executed by a reputable surety company in the sum of $50,000 to guarantee the faithful performance of the above conditions, which bond is to be delivered in five days.

“6. Receivers hereby agree that upon receipt of said bond they will execute and deliver necessary papers accompanying engineers ’ estimate covering all work performed to date, in order to obtain voucher for said estimate out of the Federal court-at Little Rock, Arkansas.

£ ‘ 7. Receivers hereby agree that hereafter they will cause semimonthly estimates to be made on or before the 5th or 20th of each month, which estimates are to be paid in cash as the work progresses, until the cash is exhausted and then to make suitable arrangements for the payment of any balance, which arrangement is to be agreed upon mutually between the parties, the parties now contemplating the use of receivers’ certificates, if permissible.

“8. This agreement and contract is intended to operate as a supplemental contract to the original contract, dated July 21, 1926, between Farelly Lake Levee District of Arkansas and Jefferson counties, Arkansas, and McWilliams Company, Inc., and is not intended to cancel, set aside or modify said contract in any manner except as herein set forth.

“Witness our hands on this the 20th day of October, 1928.

“Geo. C. Lewis,

‘ ‘ A. Lawrence Mills, receivers,

“ Parties of First Part,

“McWilliams Company, Inc.,

“Party of Second Part.”

In defense to the action, appellee pleaded a settlement and complete release from liability under the bond by tbe receivers of tbe Farelly Lake Levee District and tbe statute of limitations as a bar to appellant’s right to recover on tbe bond.

Tbe canse was submitted to tbe court, sitting as a jury, upon tbe issues joined, testimony showing that tbe stone was furnished to McWilliams Company, Inc., and used in tbe construction of tbe work, tbe original and supplemental contracts, and tbe following stipulation and receipt:

‘ ‘ STIPULATION

“It is hereby stipulated and agreed by and between Chas. A. Walls, attorney for plaintiff, and O. E. Williams and W. M. Hall, attorneys for defendant, in tbe foregoing entitled cause of action, that:

“1. That McWilliams Company, Inc., became insolvent and went into tbe bands of receivers on tbe first day of March, 1929, and that tbe receivers for McWil-liams Company, Inc., elected not to proceed with tbe performance of tbe contract, and abandoned tbe contract that McWilliams Company, Inc., bad with Farelly Lake Levee District of Jefferson and Arkansas, for the construction of certain works, including tbe floodgates in said district.

“2. That tbe receivers of Farelly Lake Levee District, obligees on tbe bond, on or about March 10, 1929, took over tbe work and thereafter completed tbe work called for by the supplemental contract on or about December 12, 1929, at a cost exceeding tbe contract price by $15,398.04. There was included in said amount as part of tbe cost of completion additional engineering services of Ayres & Miller, engineers, amounting to $2,550, and tbe cost of leasing rails for a tramway needed in connection with the work from St. Louis Southwestern Railway Company, amounting to $858.29; and the cost of leasing right-of-way for tbe tramway from C. F. Rose, amounting’ to $50, and tbe receivers, having exhausted their available cash, requested United States Fidelity & Guaranty Company to pay those amounts to said parties pending final settlement with tbe receivers, which said guaranty company did.

“3. That the receivers thereafter made demand upon said United 'States Fidelity & Guaranty Company under its bond for payment of the balance of $11,939.35, and said guaranty company, on April 9, 1930, paid said amount, and said receivers thereupon executed the receipt exhibited with the guaranty company’s answer herein.

“4. It is further agreed that the receipt exhibited to the answer, dated April 9, 1930, is a true and exact copy of the original executed by the receivers of said district.

“5. It is further stipulated and agreed that this stipulation may be read in evidence on behalf of either party desiring to introduce same in the record.

“ (Signed) Chas. A. Walls,

“Attorney for Plaintiff,

“ (Signed) Wm. M. Hall,

“O. E. Williams,

“Attorneys for Defendant.”

“BECEIPT

“Beceived of the United States Fidelity & Guaranty Company eleven thousand nine hundred and thirty-nine dollars and seventy-five cents ($11,939.75) which with two thousand five hundred and fifty dollars ($2,-550) paid to Ayres & Miller, engineers, covering balance due them as engineering fees, eight hundred and fifty-eight dollars and twenty-nine cents ($858.29) paid to the St. Louis Southwestern Bailway Company covering amount due for lease of rails, and fifty dollars ($50) to C. F. Bose, covering amount due for lease of right-of-way is in full settlement, satisfaction and discharge of all liability of McWilliams Company and the United States Fidelity & Guaranty Company, its surety, under and by reason of a certain contract and bond executed on or about October 20, 1928, designated as supplemental contract to original contract of McWilliams Company dated July 31,1926.

“Witness onr bands tbis tbe 9tb day of April, 1930.

“G-eo. C. Lewis (s) and

“A. Lawrence Mills, receivers (s)

“Farelly Lake Levee District.”

Tbe court found against appellant and dismissed its complaint, from wbicb finding and judgment an appeal has been duly prosecuted to tbis court.

Appellant contends that tbe trial court should bave beld, and tbis court ought to bold, that the bond sued on is a special bond wbicb, in terms, guarantees tbe payment of all materials furnished and used by tbe contractor in completing tbe improvement. We are unable to discover any language in tbe bond itself wbicb would warrant any such interpretation even from inference. It cannot be gleaned from tbe language used that tbe bond was intended to be a statutory bond; so we would not be justified in reading tbe statute, § 6913 of Crawford & Moses’ Digest, into tbe bond; but, if it were possible, by a strained construction, to do so, it would and could not afford any relief to appellant because, if aided by tbe statute invoked, its right of action would be barred. Section 6914 of Crawford & Moses’ Digest bars rights of action on bonds for materials furnished if not brought within six months after tbe completion of tbe improvement. Appellant argues that it brought tbe suit for materials furnished within six months after tbe improvement was completed, but tbe agreed statement of facts and tbe receipt show otherwise. According to tbe agreed statement of facts and tbe receipt referred to, tbe work contemplated by tbe supplemental contract was completed on December 12, 1929, and this suit was not commenced until October 21, 1931.

Tbe trial court was correct in finding that tbe bond afforded no protection to appellant; hence tbe judgment is affirmed.


author: H'ümphReys, J.

text:
    Dent v. Adkisson.
    4-2847
    Opinion delivered February 6, 1933.

      Patterson i& Patterson and George F. Hartje, for appellant.

      It. W. Robins, for appellee.
   H'ümphReys, J.

This is a continuation of a foreclosure proceeding brought and tried in the chancery court of Faulkner County, and is the second appeal of the cause by appellant. Eeference is made to the case of Dent v. Adkisson, 184 Ark. 869, 43 S. W. (2d) 739, for a full statement of the cause of action and all the proceedings had and done therein, including the directions of this court to the trial court upon a reversal of the original decree of confirmation of sale. On remand of the cause, the trial court set aside the confirmation of the sale and overruled the demurrer to the petition; whereupon appellee filed an answer to the petition denying each material allegation thereof and tried the cause upon the testimony adduced by the parties responsive to the issues joined, resulting in a denial of the petition and a rendition of a decree confirming the sale, from which is this appeal.

Appellants are not tendering the amount of the judgment, interest and costs but are standing upon the allegations of their petition in an effort to set aside the sale in order that the lands may be sold again, and that too, without any assurance that it will sell for more than it did at the first sale.

After a very careful reading of the testimony, we are unable to say that the lands sold for a grossly inadequate sum or that appellants were prevented from paying off the judgment through the fraudulent practices of appellee. In fact, there is no substantial evidence in the record tending to sustain these allegations in the petition. The decided weight- of the testimony is to the contrary. It would extend this opinion to unusual length should we set out herein the substance of the evidence of each witness, and no useful purpose could be served by doing so, as each subsequent case must be governed by its own peculiar facts.

No error appearing, the decree is affirmed.