text:
    Smith v. Mutual Life Insurance Company of New York.
    4-3417
    Opinion delivered March 26, 1934.

      Melbourne M. Martin, for appellant.

      Frederick L. Allen and Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Johnson, C. J.

Appellant, by jury trial, recovered a judgment against appellee for the sum of $177.23 upon a certain life insurance policy theretofore executed by appellee in favor of appellant. The trial court sustained a motion for new trial upon the following theory:

“The policy in this case, by its plain language, provides that the proof of disability must be made before the plaintiff has reached the age of sixty years. There is no proof in this record that the plaintiff’s proof of disability was made prior to the reaching of sixty years, and, under the plaiin terms of the policy, the court is of the opinion that there is no liability in the case. For this reason, the motion for a new trial is granted.”

The pertinent provisions of the policy of insurance in controversy were to the following effect: “If the insured, after the payment of premiums for at least one full year, shall, before attaining the age of 60 years, and provided all past-due payments have been duly paid and the policy is in full force and effect, furnish due proof to the company at its home office either (a) 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, or (b) that he has suffered any of the following ‘specified disabilities’ (which shall be considered total and permanent disabilities thereunder), namely, etc., the company, upon receipt of approval of such proof, will grant the following benefits:

“The company will, during the continuance of such disability, waive payment of each premium as it becomes due, commencing with the first premium due after approval of said due proof. Any premium due prior to such approval by the company must be paid in accordance with the terms of the policy, but if due after receipt of said due proof, will, if paid, be refunded upon approval of such proof.
“The company will, during the continuance of such disability, pay to the insured a monthly income at the rate of $10 for each one thousand dollars of the face amount of this policy (but not including dividend additions), the first such monthly payment being due on receipt of said due proof and subsequent payment on the first day of each calendar month thereafter, if the insured be then living and such liability still continuing. No income payments, however, will be made prior to approval of such proof by the company as satisfactory, but upon such approval, whatever income payments shall have become due will then be paid and subsequent payments will be made when due. ’ ’

The plain meaning of the language employed by the parties, as aforesaid, is that, if the insured suffers total and permanent disability prior to attaining the age of 60 years, and has paid all premiums up to the receipt of such injury, liability shall attach.

It would be a strained construction to construe the language thus quoted to mean that proof of loss must be filed with the insurance company before the insured attains the age of 60 years. Evidently this was not the intention of the parties. At any rate, the language employed is not susceptible of such construction.

Appellee contends that, under the doctrine announced in New York Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S. W. (2d) 520, the trial court was justified in the conclusion reached. This is not the effect of the Farrell case. We held in the Farrell case, as we have in all other cases decided, that liability attached upon causation of the injury suffered, but that the cause of action on such liability accures only after the filing of the proof of disability. The mailing of the proof of loss was not treated or considered as a condition precedent to liability in the Farrell case, but it was treated as a condition precedent to the right of recovery. The rule is, as announced in the Farrell case, and in all others on the subject announced by this court, that liability attaches upon causation of total and permanent disability of the insured, but that the right of recovery is postponed until notice to the insurer of the disability or the filing of the proof of disability or the lapse of time provided for in the policy in reference to the accrual of the right of recovery. Ætna Life Ins. Co. v. Davis, 187 Ark. 398; W. O. W. v. Meek, 185 Ark. 419, 47 S. W. (2d) 567; Ætna Life Ins. Co. v. Pfeifer, 160 Ark. 98, 254 S. W. 335.

Appellant insists also that New York Life Ins. Co. v. Jackson, ante p. 292, is authority for the trial court’s holding. Neither can we agree to this contention. In the Jackson case, no proof of loss was ever submitted to the insurance company. No notice was given to the insurer or to any agent with authority of the asserted right of liability. The first information brought to the knowledge of the insurance company was a letter of date January 16, 1932, addressed to the general agent at Little Rock. In the Jackson case, as heretofore stated, no effort had been made to effect proof of loss prior to the filing of the suit, and the suit was filed more than five years after the receipt of the alleged injury.

Neither can we agree that Ætna Life Ins. Co. v. Person, ante p. 864, is authority for the holding of the trial court. The Person case was disposed of on the theory that there was no substantial evidence that plaintiff’s physical condition had prevented him from doing all the substantial acts of his vocation in the usual and customary manner. We therefore held that the trial court erred in not directing a verdict in favor of appellant insurance company.

Neither can we agree that our present holding is in conflict with Bergholm v. Peoria Life Ins., 284 U. S. 489, 52 S. Ct. 230. The policy construed in the Bergholm case contains the following language:

“To entitle the insured to the above total and permanent disability benefits, this policy at the time of making claim for such benefits must be in full force, and all premiums becoming due prior to the time of making claim must have been duly paid. ’ ’

The Supreme Court of the United States was eminently correct in holding that the language just quoted must be performed by the insured as a condition precedent to his right of recovery. This is the plain and unmistakable meaning of the language employed. However, we have no such language in the policy of insurance here under consideration. We think the language here employed is plain and definite to the effect that, if the insured suffers total and permanent disability prior to his sixtieth birthday, and at the time has paid all premiums due, liability then and there attaches, and recovery is postponed until notice or proof of loss is submitted. For instance, suppose the insured, on the day prior to his sixtieth birthday, suffers an injury which results in the loss of both legs and both arms. In the natural course of events it would be impossible to make proof of loss prior to the insured’s sixtieth birthday. Such construction would nullify the plain intentions of the parties. True, this is an extreme imaginary case, but it is not beyond the limits which the parties had in mind at the time the contract was effected.

It is self-evident that the paramount consideration the parties had in mind at the execution of this contract was insurance against total and permanent disability. Any construction which nullifies this paramount consideration should be avoided, if possible. All courts agree that it is a fundamental rule of construction that insurance contracts, when ambiguous, should be construed most strongly against the insurer. Mutual Life Ins. Co. v. Hurni Co., 263 U. S. 167, 44 S. Ct. 90; Stipcich v. Ins. Co., 277 U. S. 311, 48 S. Ct. 512.

Under any view, the trial court was in error in granting a new trial to appellee.

It is true the verdict of the jury and the judgment entered thereon were excessive, but this is no reason for granting a new trial in this case. The uncontradicted testimony shows that on April 1, 1933, notice of the injury and claim for compensation Avere given to appellee; that on April 11, 1933, formal proof of disability Avas made. Under our preAdous holding the cause of action accrued on the happening of these events. The suit Avas filed in June, 1933, and judgment was effected on September 27, 1933, for the sum of $177.23.

It clearly appears therefore that the verdict of the jury and judgment of the court are excessive, but this is a matter that can and should be cured by remittitur. It is simply a matter of calculation to determine the compensation which accrued from the first of April, 1933, to September 27, 3933, Avlien the judgment was entered. Only six months elapsed between the date of the notice and of the entry of the judgment, and the recovery must be measured by that period of time. A new trial is never necessary under circumstances like these. Matters of calculation are not questions of fact, but are deductions drawn from proved facts The testimony in this regard is not in controversy, and would not be upon a new trial.

Therefore the case will be reversed, and judgment will be entered here in appellant’s favor for the sum of $60, the amount of accrued benefits up to September 27, 1933, the date of the trial.

Justices Smith and McHaney dissent.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Missouri State Life Insurance Company v. Foster.
    4-3399
    Opinion delivered March 26, 1934.

      Allen May, Rose, Hemingway, Cantrell & Loughborough and A. D. DuLaney, for appellant.

      Shaver, Shaver & Williams, Malcolm T. Garner, Sam T. Poe, Tom Poe and McDonald Poe, for appellee.
   Johnson, C. J.

Seeking recovery upon two certificates of insurance theretofore issued by appellant to appellee, this suit was instituted. A trial to a .jury was had which resulted in a verdict in favor of appellee upon each of these certificates, and judgments were accordingly entered, and this appeal is therefrom.

Certificate No. 24,414, issued under master policy No. SAH-534, provides indemnity of $10 per week for a period not exceeding twenty-six weeks against injuries effected through external, violent and accidental means, or the same amount per week for disability resulting from bodily disease which prevents performance of every kind of duty pertaining to the insured’s occupation, provided no payment shall be made for the first seven days of disability, etc. The master policy No. SAH-534, just referred to, is an industrial insurance contract effected between appellant as insurer in favor of the Missouri Pacific Railroad Company as employer and for the use and benefit of the employees of the railroad company.

Certificate No. 24,314 was issued under master policy G--2377, an industrial insurance contract effected between appellant and the same railroad company, and this certificate provides indemnity of $1,000 to be paid to the beneficiary of the insured in the event of death or to the insured in the event of total and permanent disability resulting-from bodily injury or disease before attaining the age of sixty years. This certificate provides:

“Total and permanent disability benefits.
“If tbe employee shall furnish the company with due proof that, before having attained the age of sixty years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, and that he or she has been so permanently and totally disabled for a period of six months, the company will immediately pay to the employee in full settlement of all obligations hereunder, the amount of insurance in force hereunder on the employee at the time of the approval by the company of the proofs as aforesaid.”

This certificate No. 24,314 has the following instructions indorsed thereon:

“It is not necessary for the employee or the beneficiary to employ any individual firm or corporation to secure any benefits under this certificate. Communicate directly with either the employer or the Missouri State Life Insurance Company, Fifteenth and Locust Streets, St. Louis, Missouri.
“Missouri State Life Insurance Company,
“St. Louis, Missouri.”

During the progress of the trial, the parties stipulated that master policies No. SAH-534 and G--2377 and the certificates issued thereunder were in full force and effect during the month of August, 1931. Hereafter, we shall deal with master policies and certificates issued thereunder separately.

Master policy SAH-534, which provides weekly indemnity for sick disability, contains the following clause:

‘ ‘ Immediate written notice, with full particulars and full name and address of the insured employee, shall be given by the employer to the company of any accident, injury or sickness for which claim shall be made.”

This master policy was never in the possession of the insured. Appellee testified that he gave notice to his employer, the Missouri Pacific Railroad Company, of his disability under policy No. SAH-534 in October, 1931, but that he ivas denied blanks upon which to make his proof of disability.

It is especially noticeable that the certificate of insurance delivered to the insured contained no requirement of notice of disability. As we understand appellant’s contention, it is to the effect that the insured was bound to take notice of the provisions of the master policy and give to appellant the notice required to be given by the employer.

We think the facts and circumstances in reference to liability under policy SAH-534 has been determined adversely to appellant’s contention in the case of Missouri State Life Insurance Co. v. Johnson, 186 Ark. 519, 54 S. W. (2d) 407; in which we held:

“It is true, as argued here, that he did not notify áppellant of the accident and consequent injuries for about nineteen months, but he testified that his failure was due to the fact that the major policy requiring notice be given was not in his possession or subject to his inspection. The requirement for notice and proof of the injuries was not in the certificate delivered to him. When he obtained information that notice was required, he notified appellant.”

Moreover, the policy and certificate of insurance here under consideration does not by express terms or by necessary implication make the giving of notice a condition precedent to the right of recovery. Hope Spoke Company v. Maryland Casualty Co., 102 Ark. 1, 143 S. W. 85.

In addition to what we have just said, we are definitely committed to the doctrine under policies of insurance wherein the provision for notice is not made a condition precedent to the right of recovery that it is immaterial how and when the proof of disability is made, if within the statutory period of limitations. Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912.

The necessity for such rule of construction is made to appear more definitely when we consider that the class of risks usually insured under industrial contracts of insurance are people of little learning.

Appellant also contends that the certificate of insurance was forfeited on September 1, 1931, because of nonpayment of premiums.

The rule is stated thus in 31 C. J. 967: “In view of the nature of industrial insurance and the class of people with whom the company mostly deals, the policy is liberally construed in favor of insured, and the courts give effect to slight circumstances in order to prevent a forfeiture based on provisions of the policy inserted for the company’s benefit.”

We are definitely committed to the doctrine that liability attaches under contracts of insurance similar to the one under consideration upon causation of the injury, and it necessarily follows from this that no subsequent act or acts of the parties can destroy the liability thus created. Notice was not made a condition precedent to the right of recovery under the certificate and policy here under consideration therefore a suit may be brought and maintained within the statutory period of limitations. Forfeitures cannot and should not be declared when the rights of parties have become vested, therefore the payment or nonpayment of premiums subsequent to causation of the injury is immaterial. We conclude therefore that the judgment in favor of appellee under policy S API-534 is right, and should be affirmed.

Appellant contends that no liability attached under certificate No. 24,314 issued under master policy G--2377 until proof of disability was filed with the company, and approved by it showing appellee to have been disabled for a period of six consecutive months. In other words, the contention is, that liability did not attach on this certificate until six consecutive months’ disability had elapsed, and that the payment of premiums during this six months ’ period was a condition precedent to the right of recovery. The jury has found under proper instruction, and, appellant tacitly admits, upon sufficient evidence that appellee was totally and permanently disabled prior to August 31,1931.

Conceding without deciding that the payment of premiums for six months subsequent to the causation of total and permanent disability is a condition precedent to the right of recovery, it avails appellant nothing here. The monthly premium on certificate 24,314 was sixty cents per month, and on September 1, 1931, when the premium should have been paid, appellant had in its possession sufficient funds belonging to appellee under policy SAH-534 to have paid this premium. We are committed to the doctrine that, as long as the insurer has funds in its possession belonging to the insured, such funds must be used to avoid a forfeiture. Illinois Bankers’ Life Ins. Co. v. Wilken, 187 Ark. 337, 59 S. W. (2d) 1046; Security Life Ins. Co. v. Matthews, 178 Ark. 775, 12 S. W. (2d) 865; American Nat. Ins. Co. v. Mooney, 111 Ark. 514, 164 S. W. 276; Missouri State Life Ins. Co. v. Miller, 163 Ark. 480, 260 S. W. 705; Knights of Pythias of N. Amer. v. Sanders, 174 Ark. 279, 295 S. W. 25; Pfeiffer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847.

It is earnestly contended on behalf of appellant that liability did not attach under policy G-2377 until proof of disability had been filed and approved by the company showing a total disability to have existed for six consecutive months. In support of this contention we are cited the recent case of Kingsland v. Mo. State Life Ins. Co., by the Kansas City Court of Appeals, wherein the court held, in effect, that six months total and permanent disability must exist during the lifetime of the master policy, and that this was a condition precedent to liability.

The case referred to is in direct conflict with the previous decisions of this court on this subject. We are irrevocably committed to the doctrine that, when liability attaches, no subsequent act of the parties will effect a forfeiture of the policy, unless the contract of insurance by definite and explicit terms so provides. We are unwilling to impair our previous decisions in deference to this opinion.

We are also cited in the case of Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 52 S. Ct. 230, in support of this contention. In the case referred to by plain and definite language the payment of premiums up to the filing of the proof of disability was made a condition precedent to the right of recovery. Such is not the effect of the language employed in the instant case.

We therefore conclude that no reversible error appears, and the judgment will be affirmed.

Justices Smith and McHaney dissent.


author: Humphreys, J. Butler, J.,

text:
    Georgia Casualty Company v. Board of Directors of St. Francis Levee District.
    4-3341
    Opinion delivered March 26, 1934.

      Sam Costen and House, Moses & Holmes, for appellant.

      S. W. Ogan, J. L. Shaver and G. B. Segraves, for appellee.

      James G Coston and J. T. Coston, for indemnitors— cross-appellants.
   Humphreys, J.

This is an appeal by Georgia Casualty Company from a decree for $38,366 rendered against it in favor of appellee on an indemnity bond executed by it to appellee on March 18, 1930, agreeing to pay not to exceed $40,000 to appellee any loss it might sustain on account of deposits made in the Bank of Osceola, said bank being the principal in the bond and appellant the surety therein. Also an appeal by J. L. Williams, H. V. Cartwright, Ike Miller, and O. W. Knight from a decree in like amount rendered against them in favor of appellant on an indemnifying agreement to reimburse appellant herein for all loss it might sustain on account of the bond executed by it.

The issues joined by the pleadings were whether the bond sued upon by appellee had expired at the time said bank failed on December 17, 1931, and, if not, whether the bond was obtained through the fraud of appellant’s own agent, in which fraud appellee participated; and whether J. L. Williams, H. V. Cartwright, Ike Miller, and W. O. Knight were released from their agreement or undertaking when the 'bond sued upon was extended.

The bond sued upon by appellee was executed on March 18, 1930, to expire March 18, 1931, in consideration of $5 a thousand or $200, which ivas paid to B. Frank Williams, the general State agent of appellant. Prior to the execution of this bond, the deposits of appellee were protected by indemnity bonds executed by the Southern Surety Company. J. L. Williams was president of the board of directors of St. Francis Levee District, appellee herein, and president of the Bank of Osceola. B. Frank Williams was his son, who was located in Little Bock in the bonding business, and represented appellant as its general agent in the State for the purpose of transacting all its business. He had a power of attorney from it which read, in part, as follows: “To make, execute, seal, and deliver for and on its behalf as surety, any and all bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof, which are or may be allowed, required, or permitted by law, statute, rule, regulation, contract or otherwise, and the execution of all such instruments in pursuance of these presents shall be as binding upon said Georgia Casualty Company, as fully and amply, to all intents and purposes, as if the same had been duly executed and acknowledged by its regularly elected officers at its principal office.”

An application was made to appellant for a bond in the sum of $15,000 by appellee and said bank, but a bond was written for $40,000 to cover the deposits by the agent in the name of appellant, for which the agent was paid $200. He accounted to appellant for $75 premium only. At the time he wrote and delivered the bond to appellee, he also delivered his power of attorney to its secretary. On the same date the bond and power of attorney were delivered to appellee J. L. Williams, and the other directors of the said bank executed and mailed an indemnity agreement to appellant, referred to above. No amount was fixed in said agreement. In October, 1930, appellant wrote a letter to appellee stating it was surety on a $15,000 bond for it, and asldng for a copy of the bond. Appellee sent the letter to B. Frank Williams at Little Rock, but made no answer to the letter itself. In November appellant wrote asking B. Frank Williams for a copy of the bond, but failed to get it.

In February, 1931, before the expiration of the bond, appellee notified B. Frank Williams that appellant must furnish another bond in like amount or it would get a bond from the 'Southern Surety' Company. On the 26th of February, 1931, he furnished another bond in which the said bank .joined as principal and appellant as surety to expire February 26, 1933, and later extended the original bond to March 18, 1932, and afterwards changed the expiration of the new bond to February 26, 1932, and charged and collected a premium of $800 from appellee, which it seems was never sent to appellant.

There is testimony in the record tending to show that B.- Frank Williams violated the confidence placed in him by his company, and some tending to show that the officials of appellee participated in the fraud or had knowledge thereof, but there is other testimony tending to show that appellee had no such knowledge, and did not participate therein.

The chancellor found that both of the bonds sued upon were executed by B. Frank Williams, that the Levee District paid the premiums on both bonds, and that it had no knowledge or notice of the fraud practiced upon appellant by its own agent.

After a very careful reading of the testimony, we are unable to say that this finding is contrary to the weight of the evidence. The law is plain that, where one of two innocent parties must suffer on account of the wrongful act of a third party, the one must suffer who placed it in the power of the third party to perpetrate the wrongful act. Maccabees, Incorporated, v. Pierson, 177 Ark. 243, 6 S. W. (2d) 305. In the instant case, appellant placed it in the power of B. Frank Williams to perpetrate the fraud complained of, and must bear the loss resulting therefrom.

The only question now left for determination is whether, under the power of attorney, B. Frank Williams had authority to extend the indemnity bond by changing the date of expiration. Having power to execute the bond in the first instance without restriction as to amount or time and without submitting it to appellant for approval or confirmation, it follows that he might extend the time for any reasonable period. There is no restriction whatever in the power of attorney as to the amount or time for which it might be extended. He could have executed a new bond, and he actually did so, but later chose to extend the original bond. The power to extend a bond is necessarily conditioned upon power to make one for an unlimited time. A majority, however, are of the opinion that the power or authority to make or extend a bond does not confer authority to release a bond given to indemnify the surety against loss. In this latter view, the writer does not concur, being of the opinion that the power of attorney was broad enough to authorize the agent to do anything the officers of appellant might do.

The decree is therefore affirmed on both direct and cross-appeals.

Butler, J.,

(dissenting). I cannot agree to the conclusion reached by the majority of the court. In the discussion of this case it was conceded that the effective bond was that of date, March 18, 1930, and that the bond of February 26, 1931, sometimes called the ‘ ‘ second bond,” was never in fact accepted by the Levee Board. In fact, when the Bank of Osceola became insolvent, and the Casualty Company was advised of this, the Levee Board based its right to recover of the Casualty Company the amount of its deposit in the Bank of Osceola on the first-mentioned bond, and when the representative of the Casualty Company was making an investigation no information was conveyed to him of the existence of the last-mentioned bond or of any claim made thereunder 5 also, when this suit was filed, the right to recover was predicated on the bond of March 18,1930, and while, by an amendment to the complaint, the bond of February 26, 1931, was pleaded, this was clearly an afterthought.

The power of attorney given by the Casualty Company to its agent, Frank Williams, is set out in the majority opinion, which holds that its terms were sufficiently broad to give authority to alter bonds which had been formerly executed by the agent, and that when he, in February, 1931, altered the bond by changing the date of its expiration, making it to run for a year longer than as originally executed, he was acting within the authority conferred upon him by the power of attorney.

It will be observed that the power given to Frank Williams by the Casualty Company was to “make, execute, sell and deliver for and on its behalf as surety any and all bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof.” The general principles governing the power of an agent acting under authority as was Frank Williams, the agent of the Casualty Company, is stated in 2 C. J. 645, as follows: “Presumptively an agent is employed to make contracts, not to rescind or modify them, to acquire interests, not to give them up, and no power to cancel or vary an agreement is to be inferred from a general power to make it, nor has any agent any implied power to waive or give up rights or interests for his principal, or to increase his obligations and liabilities for the mere benefit of third persons, unless the principal knows or approves of such modifications by the agent. Thus an agent has no implied authority to extend the time for the performance of a contract, except where it is clearly within the scope of his agency. However, a general agent may act under such broad power to contract in his own name, or to make terms or to settle within his own discretion, as to overcome this presumption and bind the principal by a modification, rescission, or release.”

In other words, as stated in the case of U. S. Bedding Co. v. Andre, 105 Ark. 111, 150 S. W. 413, 41 L. R. A. (N. S.) 413, where the authority must be found from implication, “the act of the agent must be practically indispensable and essential in order to execute the duty actually delegated to him. * * * His implied authority is limited to those acts of like kind with the very act he is expressly impowered to do and from which the authority is implied, but his authority can never be extended by implication to do an act or make an agreement which is beyond the obvious purpose of his employment. * * * Being employed for one purpose, he has no authority to do another, either actual or implied. ’ ’

An examination of the power will disclose that it did not authorize the agent to alter the bond which he was authorized to write after it was executed and delivered. Under the rules of law, supra, an attorney in fact under a power of attorney must conform strictly to the authority expressly given, and his acts are. necessarily confined within the express powers granted. The agent, therefore, had no authority to make the alteration by which the obligation of the. bond was extended for the period of another year. It is quite evident, from the testimony of the secretary of the Levee Board, that he knew that this was an unusual act, and he must have known from the provisions of the bond itself that no extension of its terms could be made in this manner by the agent. This is clear from a consideration of the following paragraphs of the bond:

“Provided that no erasure or change and no change or waiver of any of the terms or conditions of statements shall be valid unless indorsed on the bond and signed by the president or vice president and attested by one of the secretaries or assistant secretaries of the company.”
“This obligation may be continued for any subsequent period by continuation certificates signed by the surety by its president or one of its vice presidents under seal, and attested by its secretary or one of its secretaries.”

The provision is clearly made that no erasure or change shall be valid unless made in a specified way, and it is also clearly directed how the obligation of a bond may be continued; so these provisions apprised the Levee Board of the limitation of the agent’s authority, and it knew when the alteration was made that this was beyond the scope of the agent’s power.

There is another reason why the Levee District ought not to be allowed to prevail in this action. It is undisputed that the agent of the Casualty Company violated his trust in the execution of the bond of March 18th. The Bank of Osceola made application for a $15,-000 bond. It was in this amount that the agent reported to the company that he had written it, and for a bond of this size a premium of $75 was charged, the agent’s commission 'being $22.50, and the balance to be remitted to the company. The agent remitted $52.50, but he collected $200 from the Levee Board. On February 17, 1931, the company notified its agent that on the 1st of March, 1931, it would cease to do business in Arkansas. Two days before the company was to withdraw from the State, without notice to it and without application having been made by the Bank of Osceola, the agent went to the office of the Levee Board, secured the bond of March 18, 1930, which by its terms expired March 18, 1931, and altered the same by making the expiration date March 18, 1932, charging and collecting $200, of which he failed to advise his principal. After the company withdrew from the State, from time to time it wrote its agent to secure and return to it the original bond of March 18, 1930. The agent ignored all of these letters, and finally the company wrote the Levee Board, in September, 1931, that it had written a depository bond to the Levee. District on the Bank of Osceola for $15,000 'which" had expired March 18, 1931, and that it desired to have the canceled bond, or a statement from the Levee Board that it claimed no liability thereunder. Instead of replying to the Surety Company, the Levee Board turned the letter over to the agent, and the first communication the surety company received from the Levee Board was a letter in December giving notice that the Bank of Osceola had closed its doors on the 17th of that month; that It had a deposit of $38,366.05 in said bank, and that it claimed and demanded the payment of the same by the Casualty Company by reason of a bond executed March 18, 1930, expiring on the same date in 1932. This was the first knowledge the Casualty Company had that any such bond was in existence.

From the testimony of the secretary of the Levee Board, it is clear that he knew that the action of the agent-in writing a bond on February 26, 1931, for $40,000, and a day or two later coming in and changing the expiration date on the bond of March 18, 1930, and his request for the return of the bond written February 26, 1931, and later on his change of the bond written February 26, .1931, so as to make it appear that it was written preceding that date, was irregular and so suspicious that lie. (the secretary) refused to surrender either one of the bonds. With these facts within the knowledge of the Levee Board, when it received the letter from the Casualty Company in September, 1931, asking for a return of the canceled bond, the amount of which ivas stated, it then knew, or ought to have known, that the agent had practiced a fraud upon the Casualty Company, and good faith demanded that it should have answered the letter of the company disclosing all the facts within its knowledge. Had it done so, the Casualty Company would have had the opportunity to protect itself by cancelling the bond, and the Levee Board could have protected itself by a withdrawal of its deposit from the Bank of Osceola.

It is elementary that one may estop himself, either by his positive acts or by omission, from asserting a right against a party who has been injured. It is difficult to lay down any accurate rule by which estoppels in pais may be measured, for each case must depend upon its own facts, and in no two cases are the facts precisely the same. But this is a case which calls for application of the doctrine, for clearly good law and good morals required the Levee Board to disclose to the Casualty Company the fact that its agent had written a bond in a greater amount than it had supposed and then, by alteration, had extended its obligation for a year longer than when the bond was written, and to disclose to the Casualty Company that it then claimed that a valid and subsisting bond for $40,000 existed for which the Casualty Company was liable. As already said, had the Levee Board done this, both it and the Casualty Company had ample means of protection, and by its silence it acquiesced in the fraud of the agent, and should not be allowed to recover in this ease. It follows that there was no liability on the part of the indemnitors.

I think, therefore, that the judgment of the trial court should be reversed, both on direct and cross-appeal, and that the case should be dismissed.

I am authorized to say that Mr. Justice McHaney concurs in the views I have expressed.


author: Kirby, J.,

text:
    Missouri State Life Insurance Company v. Withers.
    4-3389
    Opinion delivered March 26, 1934.

      George Pike, F. A. Isgrig, A. D. DuLaney and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Meehan & Moncrief, Sam T. Poe, Tom Poe and McDonald Poe, for appellee.
   Kirby, J.,

(after stating the facts). The opinion in Missouri State Life Ins. Co. v. Foster, ante p............., written by onr learned Chief Justice in a like case, handed down this date, is controlling in all respects herein.

The policies and certificates of insurance herein do not, by express terms or by implication, make the giving of notice of the disability a condition precedent to the right of recovery; and, as said in the Foster case, supra: “We are definitely committed to the doctrine that liability attaches under contracts of insurance similar to the one under consideration upon causation of the injury, and it necessarily follows from this that no subsequent act or acts of the parties can destroy the liability thus created. Notice was not made a condition precedent to the right of recovery under the certificate and policy here under consideration, therefore a suit may be brought and maintained within the statutory period of limitations. Forfeitures cannot and should not be declared when the rights of parties have become vested; therefore the payment or nonpayment of premiums subsequent to the causation of the injury is immaterial.”

When the premiums became due on these certificates, for the nonpayment of which they were attempted to be forfeited, the appellant company had in its possession sufficient funds belonging to the appellee under said contracts to have paid the premiums, if it had been so applied, and, such being the case, the insurer was bound to apply such funds in its possession to avoid a forfeiture. Mo. State Life Ins. Co. v. Foster, ante p. 1116, and cases there cited.

On the whole case, we find no prejudicial error in the record, and, said case being controlled by the Foster case, supra, the judgment is affirmed.


author: Mehaffy, J.

text:
    Missouri State Life Insurance Company v. Brown.
    4-3390
    Opinion delivered March 26, 1934.

      George Pike, F. A. Isgrig, A. D. DuLaney and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Meehan & Moncrief, Sam T. Poe, Tom Poe and McDonald Poe, for appellee.
   Mehaffy, J.

The appellant, Missouri State Life Insurance Company, issued to the Missouri Pacific Railroad Company three g'roup policies. One of them provided for indemnity in the event of accidental dismemberment ; one proidded for indemnity for a period of not exceeding 26 weeks for sickness, and the other provided for indemnity for total and permanent disability. The appellee, an employee of the Missouri Pacific Railroad Company, Avas issued a certificate under each of the group policies.

On May 3,1931, the appellee lost a leg in an accident, and the company paid him $500 in settlement of his claim under the policy Avhieh provided for indemnity in cases of accidental dismemberment. This policy therefore is not involved in this suit.

The next policy provided for payment of $10 per week for the period of disability, not exceeding 26 consecutive weeks. The appellant paid on this policy $77.14. Suit was brought on this policy for the balance due, and also on the policy for total and permanent disability, and for 12 per cent, damages and attorney’s fees.

It was contended in the court below that § 6155 of Crawford & Moses’ Digest, when applied to a case in which the insurer has reasonable grounds for contesting the claim, is unconstitutional. Appellant states, however, that its understanding is that a case is now before the Supreme Court of the United States involving the constitutionality of our statute as construed by this court. This court held that the statute was constitutional, and that the good faith of the insurance company did not excuse it from the plain provisions of the statute. Life & Casualty Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S. W. (2d) 199.

This case was appealed to the Supreme Court of the United States, and, since .the appellant prepared its brief, the Supreme Court of the United States has decided the case. It was decided March 5, 1934, 54 S. Ct. 482. That court held that the allowance of attorney’s fees and 12 per cent, damages in insurance cases did not violate the provisions of the Federal Constitution, and affirmed the case. The questions as to attorney’s fees and 12 per cent, damages is therefore settled by the decision of the Supreme Court of the United States.

The next question argued by appellants is the right of appellee to recover $10 a week for the balance of 26 weeks, for which appellant had not paid. It was the contention of the appellant that appellee had no ailment outside of the loss of his leg, and physicians testified that the claim of heart disease was nothing but a pretense. Other physicians, however, testified that he was totally and permanently disabled because of other ailments. This was really the only controversy as to this claim, and appellant states in its brief: “The jury’s verdict has settled this controverted question of fact.”

There is therefore nothing for us to consider except the action on the policy for $1,000 for total and permanent disability benefits. Appellant contends that, before appellee would be entitled to recover under this certificate, it was necessary that he keep the same in force for a period of six months following May 3, 1931, the date on which he was injured, and that appellee had not kept this policy in force by the payment of premiums. It is admitted that no premiums were paid on this certificate after the month of July, 1931, and appellant contends that for that reason the certificate or policy was lapsed and forfeited on account of failure to pay premiums.

Appellant’s contention cannot be sustained for the reason that the undisputed evidence shows that appellant had more than enough funds in its hands belonging to the appellee to pay the premiums.

“The rule is that insurance companies cannot declare forfeiture of policies for the nonpayment of premiums where they have sufficient funds in their hands belonging to the insured to pay the premium, and the duty rests upon them to use the funds to pay the premiums and thereby prevent forfeitures.” Illinois Bankers’ Life Ins. Co. v. Wilken, 187 Ark. 337, 59 S. W. (2d) 1046; Security Life Ins. Co. v. Matthews, 178 Ark. 775, 12 S. W. (2d) 865; American Nat. Ins. Co. v. Mooney, 111 Ark. 514, 164 S. W. 276; Mo. State Life Ins. Co. v. Miller, 163 Ark. 480, 260 S. W. 705; Knights of Pythias of North America v. Sanders, 174 Ark. 279, 295 S. W. 25; Pfeiffer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847.

It is contended that the appellee was not totally and permanently disabled. This court has many times decided what constitutes total and permanent disability. “Total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. Total disability exists, although the insured is able to perform occasional acts, if he is unable to do any substantial portion of the work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his business, or that his injuries were of such character and degree that common care and prudence required Mm to desist from his labor so long as was reasonably necessary to effect a speedy cure.” Mo. State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335; Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457.

The evidence as to whether total disability existed was in conflict, and the verdict of the jury settled this question of fact.

We find no error, and the judgment of the circuit court is affirmed.


author: Butler, J.

text:
    McCain v. Fender.
    4-3416
    Opinion delivered March 26, 1934.

      C. T. Bloodworth and C. T. Bloodworth, Jr., for appellant.

      E. G. Schoonover, W. J. Schoonover and Wear K. Schoonover, for appellee.
   Butler, J.

Vance Fender and his mother, Mrs. D. W. Fender, purchased an automobile from the Alcorn Motor Company of Poplar Bluff, Missouri, and made and executed their promissory note for the balance of the purchase money to the Alcorn Motor Company for the sum of $360, due nine months after date with interest at 10 per cent. This note was assigned for value before maturity to the appellant, L. McCain. On December 7, 1931, after the maturity of the note, Mrs. Fender, one of the makers, called on McCain at his office in Poplar Bluff' and paid the interest then accrued. Sometime thereafter the Alcorn Motor Company paid McCain $20 on the note which was duly credited thereon. Nothing further having been paid, the appellant brought suit to recover for the balance and interest according to the terms of the note.

Among the defenses interposed was that the note sued on evidenced an indebtedness due ón a conditional sales contract for the purchase price of an automobile, and that before suit the car had been retaken by the Al-corn Motor Company with the consent and authority of McCain, the assignee, and that thereby the debt evidenced by the note had been extinguished. This defense was predicated upon the principle that, where the vendor reserves title to a chattel until the payment of the purchase price, the sale is conditional and dependent for its consummation upon the performance of the condition that the purchase price shall be paid. "When the debt becomes due the vendor, in sales of this character, may bring an action to recover the debt, and by this he affirms the sale and waives the reservation of title; or he may elect to take the property and, by doing so, cancels the debt. He may not, however, have both remedies, and, where he elects to retake the properly an action to recover on the debt is barred. Nashville Lumber Co. v. Robinson, 91 Ark. 319, 121 S. W. 350; Laird v. Byrd, 177 Ark. 1114, 9 S. W. (2d) 571.

It was established that the car had been retaken by the Alcorn Motor Company, and, applying the principles announced, the court submitted to the jury the question of whether or not the retaking of the car was ‘ authorized by the appellant, and instructed the jury that, if it should so find, its verdict should be for the defendants (appellees). There was a verdict in favor of the defendants, and the appellant, on appeal, insists that there was no evidence that there was a conditional sales contract or that he authorized the appellees to negotiate with the Al-corn Motor Company on the question of accepting the car in settlement of the debt, or that the car had been retaken with his consent.

We find no positive testimony tending to establish the fact that the automobile was sold under a conditional sales contract, but that was an inference growing out of the testimony, and is sufficient to warrant the jury in believing that it was so sold. Mrs. Fender, one of the appellees, testified in effect that it was her understanding that it was a conditional sales contract, and the fact that the car was retaken supports that view. As suggested by the appellees, they were not in possession of the contract, and, if there had been none such, there appears to have been no difficulty on the part of the appellant in establishing that fact.

From the testimony of McCain there can be no doubt but that the Alcorn Motor Company, at the time of the assignment of the note to him, was solvent. This was only one of many transactions of a similar nature between McCain and the motor company, and he was satisfied with its financial responsibility for the payment of its notes which he purchased. It may be legitimately gathered from McCain’s testimony that the motor company frequently repossessed cars with the knowledge of McCain, who held the notes, and that this matter was left up to the best judgment of the motor company, and that, when such action was taken, it was satisfactory to McCain. There is no dispute as to whether or not Mrs. Fender had a conversation with McCain, at the time she paid the interest in December, relating to repairs to the car and its being retaken. She testified that she asked Mr. McCain to take the car back because she could not get repairs for it, and that he told her that she would have to see Mr. Alcorn about taking the car back. She accordingly did see Mr. Alcorn, who later repossessed the car, and in this connection McCain stated that at the time of the conversation Alcorn was solvent, and the note could have been collected from him, and that he (McCain) was not interested in Mrs. Fender.

Wé conclude that this testimony was sufficient to warrant' the court in submitting to the jury the question stated above, and that it was sufficient to warrant the verdict. The judgment is correct, and will therefore be affirmed.


author: Smith, J.

text:
    Hope Basket Company v. Hartsfield.
    4-3429
    Opinion delivered April 2, 1934.

      McRae $ Tompkins, for appellant.

      Atkins ■& Steivart, for appellee.
   Smith, J.

Appellee was employed at appellant’s factory in making baskets, and, while so employed, sustained an injury, to compensate which she recovered the judgment from which this appeal comes. A machine was used which required the service of three persons, who were designated as a band-ringer, a band-puncher, and the operator who controlled the movement of the machine. The machine was operated by two foot pedals, one of which controls the folding ring, which moves up and forms or shapes the web or mat into basket shape and holds it while the bands or hoops are stitched on, and the other pedal releases the folding ring and causes it to back up and stay out of the way while the finished basket is removed from the form. When the pedal which starts the folding ring in motion is stepped on and the folding ring actually starts, there is no way of stopping it until it closes over the form. The folding ring moves about twenty inches, and moves at uniform speed. Pressure on the pedal starts it. The form is round and bucket-shaped, and it is over the form that the web or mat of thin pieces of veneer is molded or formed into basket shape.

At the time appellee was injured she was band-ringer on the machine. Leona Johnson was band-puncher, and Doyle Bruce was operator. In making a basket, the following procedure was had. Appellee would first put a band or hoop over the form, then Bruce would place a web in the rack against the bottom of the form, then he would press the foot pedal which started the folding ring in motion and shaped the web over the form. After the folding ring closed over the form holding the web in basket shape, Leona Johnson would start pushing strips through little slats or guides, and the operator would start the machine to stitching, and the form would turn around as the bands were being stitched on. After the basket had been stitched all around, it would then be a completed basket, and Bruce would step on the release pedal, causing the folding ring to back up or to move off the form, releasing the basket, which Bruce would then slip off the form and stack on a pile behind him. This finished the operation, and the basket was complete.

An instruction numbered 2, given at the request of appellant, declared the law applicable to appellant’s theory of the case. It reads as follows: “If you find from the evidence that plaintiff had been instructed and warned never to attempt to straighten or unhang a hoop if it hung, or she dropped or fumbled it, and you further find that on the day she was injured she caught, dropped or fumbled a hoop as she attempted to place it on the form, and that she violated the instructions and warnings given to her and attempted to loosen or adjust the hoop, and that her hand was caught and injured by the folding ring as it closed over the form in the usual and customary manner, then plaintiff is not entitled to recover herein, and your verdict should be-for the defendant.”

Much testimony was offered by appellant to the effect that appellee dropped or fumbled a hoop as she attempted to place it on the form, and that, in violation of her instructions and the warnings given her for her own protection, she attempted to loosen or adjust the hoop after the folding ring was put in motion and closed over the form in the usual and customary manner, there being no way of stopping it after being put in motion. Instruction numbered 2, set out above, told the jury that, if appellee was injured in this manner, she could not recover.

Appellee testified that, before she had time to place the hoop on the form, but while she was engaged in so doing, Bruce released the folding ring, which he was not expected to do, thereby catching her hand between the folding ring and the form and crushing it. We do not review the testimony, as it suffices to say that it is in sharp and irreconcilable conflict, and this conflict has been resolved by the jury in appellee’s favor.

The court gave, at appellee’s request, an instruction reading as follows: “No. 3. You are instructed that contributory negligence cannot be presumed, but must be proved, and the burden of proving is on the defendant. ’ ’

Appellant requested that the instruction be modified by adding thereto the phrase, “unless it should be shown by the evidence introduced on behalf of the plaintiff.”

This instruction is usually given in the form it would have appeared if modified, but the refusal to so modify the instruction was not prejudicial error under the facts of this case, for the reason that, in view of instruction numbered 2 referred to, the jury could not have been misled.

The court gave, at appellee’s request, an instruction numbered 5, reading as follows: “The court instructs the jury that, if you find from a preponderance of the evidence that the witness, Doyle Bruce, was in the employ of the defendant, and as such employee was operating the machine at which the plaintiff worked at the time she was injured, and that he negligently, in the operation of such machine, at a time when plaintiff was in a place of danger, released the iron rim, or follower, on said machine forcing said follower against the basket web and over the drum or form of said machine, and that plaintiff’s hand was caught by said follower and jammed between the said follower and the drum, or form, and plaintiff was injured thereby; and you further find at the time she was exercising due care for her own safety, and had not assumed the risk; and if you further find from the testimony that, due to such negligent operation of defendant’s machine, if any, Marion Hartsfield was injured, then the court tells you that Hope Basket Company is liable for all injuries and damages suffered as an approximate and natural result of such negligence.”

Specific objection was made to the phrase, “at a time when plaintiff was in a place of danger,” for the reason that there is no question of “discovered peril” in the ease.

We think, however, that the objection is not well taken. The controlling question of fact in the case is whether Bruce released the iron rim or follower at a time when it endangered appellee’s safety to do so. In other words, appellee was in a place of danger if Bruce prematurely released the rim, as appellee testified he did, and the instruction makes no application of the doctrine of discovered peril. It was not contended that Bruce could have done anything to avert the injury after putting the rim or follower in motion. His alleged negligence consisted in prematurely starting the machine at a time when to do so endangered appellee’s safety, and we conclude therefore that there is no error in the instruction.

It is finally insisted that the verdict, which was for $5,000, is excessive. But we do not think so. Appellee is unmarried, and was only seventeen at the time of the trial. She testified that her hand was mashed flat like a biscuit, and that she was confined in the hospital for eighteen days, where she suffered g’reat pain, and that she continues to suffer pain. There was a shortening and misplacement of the bones in healing, which has resulted in the disfigurement of the hand, and the attending physician testified that appellee’s fingers were not only of no service to her but were rather in her way, because they were stiff.

There appears to be no error, and the judgment will therefore be affirmed.


author: Humphreys, J.

text:
    Laster v. Oldham.
    4-3351
    Opinion delivered April 2, 1934.

      Fred M. Pickens and Golden Blount, for appellant.

      John E. Miller, C. E. Yingling and B. E. Lindsey, for appellees.
   Humphreys, J.

Appellees, the sole heirs of Adam Reeder, deceased, brought suit in the chancery court of White County against appellants to cancel a deed to certain real estate in said county executed by Emma Reeder Laster and to recover said lands and all other property received by him from Emma Reeder Laster, and from the estate of the said Adam Reeder and Emma Reeder Laster,

Emma Reeder Raster’s first husband was Adam Reeder. At the time she married Adam Reeder he was a widower, and appellees are his children and grandchildren. No children were born to them. According to the clear weight of the testimony, in 1914 they became estranged, and through friends were influenced to renew their marital relationship under oral agreement that they would pool their property and in the future conduct their business in the name of themselves as husband and wife, and, in the event Reeder predeceased his wife, that she would continue to manage their property and would execute a will bequeathing all of the property remaining at her death to the children and grandchildren of Adam Reeder. The agreement was fully performed by the parties as long as Adam Reeder lived and until his wife married J. O. Laster. After the marriage, she executed a deed to the lands in question, which had been conveyed to Adam Reeder and her as husband and wife, to J. O. Laster and bequeathed to him all the personal property so held by her at the time of her death, of her own free will and accord. This suit was commenced when J. O. Laster filed the deed for record and the will for probate. The chancery court found the facts detailed in substance above were supported by the clear weight of the evidence, and rendered a decree impressing a trust upon the personal property, but refusing to impress a trust upon the real estate because the agreement was not in writing. Appellants have appealed from that part of the decree impressing a trust upon the personal property. •

The first contention is that the trust agreement was established by the testimony of the attorney, C. L. Pearce, who acted for and advised with both Adam and Emma Reeder when they were reconciled after a short separation. It is argued that his testimony was inadmissible and should not have been considered by the trial court on account of the fourth subdivision of § 4146 of Crawford & Moses’ Digest, which reads as follows:

“The following persons shall be incompetent to testify: an attorney concerning any communication made to him by his client in that relation, or his advice thereon, without the client’s consent.”

The testimony of Mr. Pearce relates to an agreement entered into by clients in his presence concerning their property and the future disposition thereof to third parties and not to “communication made to him by his client in that relation, or his advice thereon.” The subject-matter detailed by him was not within the spirit or letter of the statute. His testimony was clearly admissible. Section 40, “Cyc,” p. 2368, subdivision 7.

It is also contended that an express trust relating to personal property cannot be created by parol. This court said in the case of Scott v. Miller, 179 Ark. 7, 13 S. W. (2d) 819: “In some jurisdictions an express trust cannot be created by parol, even as to personal property, but the clear weight of authority is to the effect that the statute of frauds does not extend to trusts of personal property, and that such trusts may be created and proved by parol.”

No error appearing, the decree is affirmed.


text:
    Prudential Insurance Company of America v. Lane.
    4-3430
    Opinion delivered April 2, 1934.

      J. Loyd Shouse and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      V. D. Willis and Shinn Henley, for appellee.

   Kirby, J.,

(after stating the facts). It is not questioned that the certificates were issued under the group policies to appellant and were both in force at the time he sustained the injury which necessitated the amputation of his left leg below the knee. The accidental dismemberment policy provided that the loss of one foot, the severance at or above the anide, should entitle the insured to $500, and appellee presented a claim under this certificate soon after the accident, and the same was paid by the company.

Subsequently, appellee presented a claim under the certificate which provided benefits in the event of total and permanent disability. The appellant denied the claim because it did not consider the insured totally and permanently disabled within the meaning of the provisions of the policy hereinabove set out.

The policy by its terms did not provide occupational insurance, or that the insurer would become liable if the insured became unable to perform the duties of his occupation of brakeman; but provided that insured, to be entitled to recover under said certificate, must show that he “is unable to perform any work for any kind of compensation of financial value during the remainder of his lifetime.”

There is no doubt about the injury suffered by the insured being permanent; and appellant’s only insistence is that the testimony is insufficient to support the allegation that said injury is total. It will suffice to say, however, that the instructions given by the court are not. complained of here, and were in accordance with the doctrines of this court as announced in Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335 ; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; and Mutual Benefit Health & Accident Ass’n v. Bird, 185 Ark. 445, 47 S. W. (2d) 812.

Insured testified that he was 47 years of age; that his leg was amputated about 9 inches below the knee joint; that he was unable to perform any kind of work for gain or profit; that he had railroaded all his life and had no knowledge of any other vocation nor sufficient education or training to follow any profession.

It is true the disability or injury suffered by the insured did' not constitute of itself a total and permanent disability within the express provisions of the policy, but said policy also provides: “If any person insured under this policy shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, etc., * * * the company, upon receipt of due proof of such disability, will grant the following benefits: ’ ’ Said policy also recognizes certain injuries to be permanent and total disabilities.

The jury had the insured before it, saw his condition and necessarily knew somewhat about the question of his disability from its own information and experience acquired through association with its fellowmen; and under our Constitution it was exclusively within the jury’s province to determine the question under the circumstances of this case. Having done so, and there being material testimony to support its verdict, the judgment thereon will not be disturbed. Affirmed.

Smith, McHaney and Butler, J J., dissent.


text:
    Bunting v. Rollins.
    4-3424
    Opinion delivered April 2, 1934.

      Nat T. Dyer, for appellant.

      H. J. Denton, for appellee.
   Mehaffy, J.

Jesse J. Bunting and Mary M. Bunting, Ms wife, the appellant here, became the owners of the land involved in this suit, and other lands, with the right of survivorship. During the lifetime of the husband on July 2, 1930, the appellant and her husband executed a mortgage to W. J. Bennett, conveying to him lands on the southwest side of the highway shown on the diagram, to secure the payment of an indebtedness of $2,500.

On September 19, 1930, Jesse J. Bunting died, and the appellant thereupon became the owner of all the real estate in her own right. On July 2, 1931, the appellant entered into the following contract:

“Mountain Home, Ark., July 2,1931.
“This contract entered into on this the 2d day of July, 1931, by and between Mrs. J. J. Bunting and L. Harry 'Carpenter, and Mary E. Carpenter, hereinafter-wards known as part of the first and second part respectively, witnesseth:
“That the party of the first part has sold to the party of the second part a certain tract of land, situated in Baxter County, Arkansas, and fully described in deed hereto attached and made a part of this contract, containing 76 acres of land.
“The contract price of land being four thousand dollars, paid and to be paid as follows: $200' in cash, the receipt of which is hereby acknowledged, and the balance of $3,800 in the 19 promissory notes of $200 each, the first one of which is to be due on or before November 1, 1932, and one of each of the remaining notes to become due on or before November 1 each year thereafter, making the last note due on or before November 1, 1950. All of said notes are to be of even date herewith and to draw interest at the rate of 6 per cent, from date until paid, interest on all notes to be paid annually.
‘ ‘ The party of the first part is to furnish a warranty deed to said land and place same in the Farmers’ & Merchants’ Bank of Mountain Home, Arkansas, and, when one-half of the above-mentioned notes are paid, is to make an abstract of title to said land, showing a good title to same, free of all debts and incumbrances, and tbe bank at that time is to deliver to the party of tbe second part the deed and abstract, taking a lien on the land for all notes unpaid at that time.
‘ ‘ The party of the first part is to have the crop growing on the land for the year 1931 and is to give possession of the land on or before November 1, 1931, with the understanding that, if all the crop is not ready to gather at that time, she is to have a reasonable time to get same off.
“It is further understood that the party of the second part is to keep the house on said land insured, in some good insurance company, for not less than $750 after they take possession.
“The Farmers’ & Merchants’ Bank of Mountain Home, Arkansas, is hereby made escrow agent in said deal, and all papers above mentioned is to be placed in same, with instructions that when the terms of this contract is complied with, it is to deliver all of above papers in keeping with this contract. Should the party of the second part fail or refuse to make payments as above set out, then in that event the said bank is hereby authorized to return the deed and abstract to the party of the first part and all unpaid notes to party of second part, and all payments made shall be the property of the first party for rents and damages, and this contract shall become null and void.
‘ ‘ [Signed] Mrs. J. J. Bunting
“L. Harry Carpenter
“Mary E. Carpenter.”

On September 12, 1932, the appellee obtained judgment in the Baxter Circuit Court against the appellant for the sum of $310.65. On October 15, 1932, execution was issued on said judgment, and placed in the hands of the sheriff of Baxter County for levy and sale. The sheriff levied upon the personal property and on the real property north and east of the public highway, as shown on the diagram, and 6.5 acres southwest of the public highway.

On October 31, 1932, the appellant gave notice that she would, on November 7, file her schedule of exemptions before the clerk of the Baxter Circuit Court. She filed said schedule at the time mentioned, and then on November 13th filed an amended schedule, and the appellee thereupon applied to the clerk for the appointment of a board of appraisers. Certain appraisers were selected by agreement, and they fixed the value of the personal property at $890.50, whereas the appellant, in her schedule had fixed the value of the property at $419.80. The appraisers fixed the value of the real property as follows: All that part of the land shown in the diagram north and east of the highway, and the four acres also claimed as exempt, on the southwest side of the highway, at $3,500. The clerk allowed the exemptions as claimed by appellant and issued supersedeas.- The appellee prosecuted an appeal to the circuit court, and the circuit court allowed the exemptions as to the personal property, but disallowed appellant’s claim for exemptions as to the real estate, and quashed the supersedeas as to the real estate. To reverse this order of the circuit court disallowing exemptions as to real estate, this appeal is prosecuted.

As to the personal property, but little need be said. The appellant was entitled to claim as exempt personal property not exceeding in value the sum of $500. Article 9, § 2, Constitution of Arkansas; § 5545 of Crawford & Moses’ Digest.

The only question as to the personal property was its value, and, as we have already said, the appellant fixed the value at $419.80, and the appraisers fixed the value at $890.50. It appears, however, from the evidence that the appraisers placed the full value on articles selected without any regard to the amount of interest of appellant. The record shows that appellant had purchased certain property from Montgomery Ward & Company for $140, and had paid only $10. The appraisers fixed the value of this property at $140. Montgomery Ward & Company had retained title to the property, and therefore appellant had only $10 equity in the property. The same appears to be true with reference to the automobile. Appellant fixed the value of the automobile at $150, but showed that there was a $300 mortgage. The appraisers fixed the value at $450 without taking into consideration the mortgage. It appears therefore that the value fixed by the appellant was correct. At any rate, this was a question of fact to be determined by the evidence, and the finding of the lower court is conclusive here.

Appellant was entitled to claim the real property described in her schedule as exempt unless she had abandoned it, and this is the only question for our determination with reference to the real property.

Article 9 of § 4 of the Constitution provides that the homestead outside of a city, town or village shall consist of not exceeding 160 acres of land with the improvements thereon to be selected by the- owner, provided the same shall not exceed in value the sum of $2,500, and in no event shall the homestead be reduced to less than 80 acres' without regard to value. This section of the Constitution is copied as § 5540 of Crawford & Moses’ Digest.

This land, claimed as exempt as a homestead, being worth more than $2,500, prevented her from claiming more than 80 acres. The evidence shows that she thought she could claim the entire tract. She was advised by her attorney, however, that she could only claim 80 acres, and then filed her amended schedule, claiming the 76 acres northeast of the public highway, and 4 acres southwest of the highway. The following diagram or map shows the situation of the land:

the 76 acres northeast of the highway and the 4 acres southwest of the highway are the lands claimed as homestead. The land shown southwest of the highway was mortgaged to secure a debt of $2,500. The 76 acres and the 4 acres are the tract claimed as the homestead.

The appellant and her husband lived on the 4 acres southwest of the highway during the husband’s lifetime, and appellant continued to live there after his death. She, however, claimed the entire tract of land as her homestead. She had made the above contract to sell the land, and it is claimed by appellee that, having done this, she cannot claim the land northeast of the highway as a homestead, because, after the contract of sale and before it was forfeited, execution was issued on the judgment against her.

Whether a homestead has been abandoned is a question of intent to be determined from the facts and circumstances in each case. Creekmore v. Scott, 179 Ark. 1113, 20 S. W. (2d) 177.

The facts in this case are that in 1930, prior to the death of appellant’s husband, they executed a mortgage on all the land southwest of the highway to secure the payment of an indebtedness of $2,500. This debt has not been paid. It is entirely probable that, because of the depression and the decreased value of all lands in the country, it would not sell for enough to pay the indebtedness. The statement of facts shows that appellant and her husband claimed the entire tract of land shown in the diagram as their homestead, and that she claimed it as her homestead after his death. The only land that she had that vías not mortgaged was the land northeast of the highway. It is agreed that she thought that was a part of her homestead, and she entered into a contract for a conditional sale of that property, and received in cash $200. She did not convey any title and did not intend to do so, unless and until one-half of the amount was paid, and the contract expressly provided: ‘ ‘ Should the party of the second part fail or refuse to make payments as above set out, then in that event the said bank is hereby authorized to return the deed and abstract to the party of the first part, and all unpaid notes to the party of the second part, and all payments made shall be the property of the first party for rents and damages, and this contract shall become null and void. ’ ’

This court said: “The relation that thus was created and arose between the parties sprung from the contract, and began with its execution, whether it was that of vendor and vendee or of landlord and tenant. The exact nature of the relation that would exist was determined on December 1, the date of the performance or nonperformance of the condition, but the inception of that relation arose at the date of the making of the contract. So that when, by the performance or nonperformance of the condition, the relation between the parties was determined, that relation went back to the time of the execution of the contract and continued thereafter.” Murphy v. Myar, 95 Ark. 32, 128 S. W. 359.

In the instant ease the relation was created by contract. The exact nature of the relation was determined when the purchasers failed to pay the first note. The contract itself expressly provides that it shall be void if there is a failure to pay the note. While the relation was determined upon the default of the purchasers, the inception of that relation arose at the date of making the contract. There never was any absolute conveyance of this property. On the default of the purchasers, they became tenants of the appellant, and, since the relation was determined by the default of the purchasers, and that relation related back to the time of making the contract, there was never a time when a lien would attach to the homestead property, and there was no abandonment.

Appellee calls attention to numerous authorities, some of them holding that, where there is a conveyance and the purchaser is in default, the relation of landlord and tenant does not exist, unless there is something in the contract indicating that such is the intention of the parties. But the contract in this case expressly provides, not only for the contract becoming void upon the pnrchaser’s failure to pay, but it expressly provides also that the payments that have been made shall be the property of the vendor for rents and damages.

We have many times held that the exemption laws must be liberally construed. “It is the settled policy of this court that our homestead laws are remedial and should be liberally construed to effectuate the beneficent purposes for which they were intended.” Franklin Fire Ins. Co. v. Butts, 184 Ark. 263, 42 S. W. (2d) 559.

Again we said: “As we have already seen, the whole theory of our homestead laws is based upon the idea of giving a family home to debtors which is exempt from the liens of judgments and executions levied upon them except in certain specified cases. The policy of the statute is to preserve the home to the family. ’ ’ Bank of Hoxie v. Graham, 184 Ark. 1065, 44 S. W. (2d) 1099; Pemberton v. Bank of Eastern Arkansas, 173 Ark. 949, 294 S. W. 64.

In discussing the object of the homestead laws, it is said in 29 C. J. 782: “The object of the provisions is to provide a home for each citizen of the government, where his family may be sheltered and live beyond the reach of financial misfortune, and to -inculcate in individuals those feelings of independence which are essential to the maintenance of free institutions. Also, the purpose of the homestead provision is to protect the family as an entirety, and not the individual who for the time being is the head of the family. Furthermore, the State is concerned that the citizen shall not be divested of means of support and reduced to pauperism.”

If the appellant could not claim as exempt the property included in her schedule, she would be deprived of all of her property except that portion on which there existed a mortgage, which she probably could never pay.

The majority is of the opinion that the conditional sale was not an abandonment of the homestead, and that appellant is entitled to claim as exempt the 76 acres northeast of the highway and the 4 acres southwest of the highway as her homestead.

The judgment of the circuit court is therefore reversed, and the cause remanded with directions to allow appellant’s exemptions in said property, and issue a supersedeas preventing its sale under execution.


author: McHaney, J.

text:
    Conway Compress Company v. Adkisson.
    4-3425
    Opinion delivered April 2, 1934.

      R. W. Rodins, for appellants.

      George W. Clark, for appellee.
   McHaney, J.

Appellee brought this action in replevin in the justice court against appellants for the recovery of eight bales of cotton, grown in 1932 by Elmer Barrett, on which he held a valid recorded mortgage. From a judgment in his favor, an appeal was prosecuted to the circuit court, where, on a trial to a jury, he recovered judgment for the cotton or its value, $238.

The only question argued on this appeal is the sufficiency of the evidence to support the verdict and judgment, it being contended that the court erred in refusing to direct a requested verdict for appellants. The facts are not in dispute, and are substantially as follows: The cotton was grown by Barrett in 1932. On February 1, 1932, he executed a chattel mortgage to appellee to secure an indebtedness, which was duly filed for record and which remained unpaid and unsatisfied. Sometime after the cotton was harvested and baled, Barrett, without appellee’s knowledge, hauled the cotton to Conway for sale, but, being unable at that time to get a satisfactory offer for same, stored it in the Conway Compress Company’s warehouse, receiving compress receipts therefor rather than haul it back to his home, a distance of about 30 miles. On January 23, 1933, Barrett sold the cotton to Austin Johnson, a cotton buyer, at $5.60, with the agreement that Johnson should hold same, and that he, Barrett, should receive any advance in price up to January 26, 1933, and the compress receipts were delivered to Johnson, who, on January 25, sold a part of the cotton to appellant, Cockrill & Company, and a part to appellant, McFadden & Oates, delivering to them the compress receipts. Johnson deposited the proceeds of these sales in the Bank of Conway and drew his check on said bank in favor of Barrett for the purchase price of $5.60, which check was not delivered to Barrett until he returned to Conway on January 28, at which time the Bank of Conway was closed and in the hands of the State Bank Commissioner for liquidation. Barrett refused to accept the check on said insolvent bank, and notified appellee of the situation, who immediately brought this action. Neither Johnson nor appellants had any actual knowledge of appellee’s mortgage, nor did they make any inquiry of Barrett regarding same. Barrett had been trading with appellee under a like mortgage for about ten years, during which time he permitted Barreti to sell his cotton at such time and for such price as suited him, but at all previous times the cotton had been paid for and Barrett had accounted to appellee for the proceeds.

Under this state of facts, appellants contend “that, by his admitted practice, extended over a period of about ten years, in permitting Barrett to sell cotton covered by a chattel mortgage at such time and place, and at such price and to such persons as he might deem proper, and when the. sale was made to bring him the proceeds of the cotton, the appellee waived his lien on the cotton, and created an agency on the part of Barrett to sell this cotton, which agency he is now estopped to deny.”

This case was not tried in the lower court on the theory that appellee had made Barrett his agent for the sale of this or other cotton, and no instruction was requested or given in this regard. An instruction was asked, and given in part as follows: “And so in this case, if you find from the evidence that Adkisson by his conduct had permitted or acquiesced' in the sale of mortgaged cotton by Barrett, then this would amount to a release of his mortgage on such cotton and your verdict should be for the defendant.” It is not contended that appellee knew this cotton had been removed from the farm or stored in the compress, or that Barrett had sold it or contemplated selling it. The only custom established by the evidence under previous mortgages was that Barrett would sell his cotton for cash and pay the proceeds to appellee. Here no completed sale was ever consummated between Barrett and Johnson, as the agreement for sale contemplated payment in cash and not by a check on an insolvent bank. Had Barrett received the sale price in cash and failed to account to appellee therefor, a wholly different case would be presented, not now necessary to decide. In 11 C. J. 627 it is said: “If the mortgagor is not the mortgagee’s agent for the sale, the mortgagee will not be estopped to assert his rights against a purchaser by any act of the mortgagor, unless the mortgagee has knowledge of the mortgagor’s intention and the purchaser relies thereon in ignorance of the truth, and a mortgagee is not estopped to assert his rights against the purchaser where the latter has not paid the purchase money and so is not damaged.”

Johnson, although not a party to this action, cannot be damaged, as he has failed to pay the purchase price. Appellants cannot be damaged as they have, or did have, their right of action against Johnson. Neither appellants nor Johnson bought the cotton on the faith of any former custom between appellee and Barrett. Moreover, we are of the opinion that the fact that appellee had permitted Barrett to sell mortgaged cotton in former years is insufficient to establish an implied consent to sell this particular cotton, or a waiver of his lien undér the mortgage. Neither Johnson nor appellants had ever bought any cotton from Barrett prior to this sale, and it would be rather far-fetched to hold that they had a right to rely on a course of dealing between mortgagor and mortgagee, of which they had no knowledge. Appellee’s mortgage being of record or on tile, both Johnson and appellants were bound to take notice thereof, and bought subject thereto. We have examined the authorities cited by appellants, but do not find them to be of controlling influence here.

Affirmed.


text:
    Missouri Pacific Railroad Company v. Glover.
    4-3428
    Opinion delivered April 2, 1934.

      Thos. B. Pryor and H. L, Ponder, for appellant.

      D. C. Abington and Tom W. Campbell, for'appellee.
   Butler, J.

Allen L. Glover brought suit in the White Circuit Court against the Missouri Pacific Railroad Company to recover for personal injuries received on February 4, 1933. There was a verdict and judgment in his favor, from which the railroad company has appealed.

At the conclusion of the testimony, the defendant moved for a directed verdict, which motion was overruled. The case was thereupon submitted to the jury.

The appellant contends that the trial court erred in not directing a verdict in its favor and in refusing to give instructions Nos. 3, 5 and 7, requested by it.

The evidence in the case is practically undisputed and tends to establish the following state of facts: Glover sustained his injuries while engaged in loading cattle on one of the cars of the appellant at Beebe, Arkansas. Practically all of the cattle were steers and were loaded from the regular stock pen by means of a cattle chute made of plank constructed with a bottom and sides. The cattle were passed from the loading pen into this chute and driven up it by Glover. He was behind the bunch of steers in the chute “pushing them up into the car.” While so engaged, one of the hindmost steers stepped upon a plank in the bottom of the chute, causing* it to break. The steer’s hind legs fell through the opening, thus made in the bottom of the chute and Glover stepped through it at practically the same time. At the point where the plank broke the bottom of the chute was about four feet above the ground. As Glover’s leg went through the hole, the steer, which weighed approximately 1,000 pounds, fell back on him, which resulted in a severe injury to him.

Instruction No. 5, requested by the defendant and refused by the court, in effect told the jury that, if the plaintiff could have seen the hole by the use of ordinary care and failed to use such care, and in so doing was guilty of negligence which caused his injury, the jury should return a verdict for the defendant.

Instruction No. 7, requested by the defendant and refused by the court, is as follows: “The jury are instructed that the plaintiff was a man of mature years, and had been engaged in the line of loading cattle prior to this time; was familiar with the stock pens and loading chute of the defendant company, and whatever dangers and risks there was attendant-upon his said duties, you are instructed that the plaintiff assumed all the dangers necessary and incident to his work.”

The refusal of the court to give these instructions is assigned as error, and also the giving of instruction No. 1, requested by the plaintiff, which is as follows: ££ The jury is instructed that, if you find from a preponderance of the evidence that the plaintiff’s injury was caused by the floor of the chute of the stock pen breaking through as plaintiff was helping to load some cattle' into a car on the Missouri Pacific Railroad at Beebe and causing a steer to fall on plaintiff and injure him, and that the floor of the chute broke because the plank was rotten and unsound, and that the defendant railroad company, in permitting the chute of said stock pen to be in such condition, failed to exercise ordinary care for the safety of persons loading stock at said chute, and that the plaintiff was not guilty of contributory negligence, you should find for the plaintiff.”

The testimony fails to show that there was any observable defect in the plank which broke, but that when this occurred Glover noticed that the cause of the break was that the plank was rotten underneath. The law is that, when the defendant engaged in the business of common carrier and constructed stock pens and chutes for the purpose of loading cattle upon its cars, the duty rested upon it to construct and maintain them in a reasonably safe condition, and that the failure to do so resulting in injury to one rightfully using the same would be negligence. The question as to whether or not the defendant had performed this duty was submitted to the jury by instruction No. 1, with directions to find for the plaintiff if it should find that the defendant was negligent in maintaining the chute, if the plaintiff himself was not guilty of contributory negligence. There was no error in the giving of this instruction of which the appellant can complain.

By instruction No. 2, given at the instance of the plaintiff and immediately following instruction No. 1, contributory negligence was defined, and the question of the plaintiff’s contributory negligence was submitted to the jury. These two instructions fairly presented the plaintiff’s theory.

The court did not err in refusing to give instruction No. 3 as requested by the defendant, or in modifying it and giving it as modified. That instruction, as requested, told the jury that, if the plaintiff, by the exercise of ordinary care, could have seen the hole in the chute, and by the use of such care could have kept from falling through it, but that he fell on account of his own carelessness, he would notfbe entitled to recover. The court modified this instruction by adding the words “in time to avoid the injury” immediately after the clause: “could have seen the hole in the chute,” and gave it as modified. There was no error in the modification, for, if the evidence was that the plaintiff could not have seen the hole in the exercise of ordinary care in time to avoid the danger, certainly he could not be negligent for not having observed it sooner.

There is, however, a better reason, which is also sufficient to justify the court in its refusal to give instructions Nos. 5 and 7, and that is that there was no testimony to support either instructions 3, 5 or 7. If the condition of the chute was so obviously dangerous because of the hole in it that it would be negligence for one to attempt to load cattle over it, it was the duty of the defendant to prove such condition. This it failed to do. On the contrary, the inference is unmistakable that there was no danger apparent to one engaged as Glover was, for there was no hole in the chute until the plank was broken by the steer. The defect in the plank was not observable from above because the .plank was decayed underneath.

There was no error committed by the trial court of which the defendant may complain in the giving or refusal of any of the instructions, or in the modifications made. The evidence was ample to sustain the verdict, and the judgment of the lower court is therefore affirmed.


author: Per Curiam.

text:
    Robeson v. Kempner.
    4-1818
    Opinion delivered April 9, 1934.
    J. R. Long, for movants.
   Per Curiam.

A motion has been filed which prays that the opinion appearing in 182 Ark. 746, 32 S. W. (2d). 616, be annulled, and that the decree of this court rendered pursuant thereto be vacated. We there affirmed the decree of the Garland Chancery Court from which the appeal came. That opinion ivas delivered November 24, 1930. The ground of the motion is that no mandate has issued from this court, and it is insisted that, as the mandate cannot now issue, jurisdiction to enforce the decree has been lost, and the decree has become a nullity.

The disposition of the motion requires the consideration and construction of §§ 2177 and 2178, Crawford & Moses’ Digest, and of act 112 of the Acts of 1929 (vol. 1, Acts 1929, page 56-3), amending these sections.

Section 2177, Crawford & Moses’ Digest, reads as follows: “The Supreme Court may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all parties, and, when the judgment or order has been reversed, the Supreme Court may remand or dismiss the cause and enter such judgment upon the record as it may in its discretion deem just. Provided, when a cause is reversed and remanded the mandate must be taken out and filed in the court from which the appeal was taken by the plaintiff within one year from the rendition of the judgment reversing’ the cause; and, immediately upon the expiration of the period of one year after the judgment of reversal is entered, when the mandate is not taken out, the clerk of the Supreme Court shall, upon application of the party entitled thereto, issue an execution for all costs accrued up to the date of reversal‘in the Supreme Court and in the court from which said cause has been appealed. ’ ’

Section 1 of the act of 1929, sivpra, amended this section so that its provisions would apply to cases which had been affirmed as well as to cases which had been reversed, with the added proviso that the mandate must be taken out within one year from the date of the disposition of the appeal, “and not thereafter.”

Section 2178, Crawford & Moses’ Digest, reads as follows: “Upon the determination of any appeal or writ of error the Supreme Court may award execution to carry the same into effect, or may remand the record, with the decision of such court thereon, to the circuit court in which the cause originated, and order such decision to be carried into effect.”

Section 2 of the act of 1929 amends § 2178 by the addition of the following proviso: “Provided the mandate is taken out and filed with the court from which the ap-p peal came within twelve months from the determination of any appeal; and such decision shall be carried into effect within ten years from the rendition of the judgment, and not thereafter.”

It does appear that mandates must issue, if at all, within one year from the date of the disposition of an appeal, whether that disposition be the affirmance, modification or reversal of the judgment or decree appealed from, but it does not follow that the judgment of this court becomes a nullity unless the mandate does issue within twelve months after the disposition of the appeal. We would hesitate to give the legislation a construction producing this anomalous result unless that construction was plainly required. In our opinion, this construction is not only not required, but is not warranted, as this was not the purpose, nor is it the effect, of the amendatory act.

If the prevailing’ litigant desires to invoke the aid of the court from which the appeal came to enforce the judgment, he must file the mandate in that court within twelve months, as limited by § 2177 and the amendatory act. But the failure so to do does not annul the judgment or decree of this court. On the contrary, § 2 of the amendatory act of 1929 provides that “such decision shall be carried into effect within ten years from the rendition of the judgment, and not thereafter.” The judgment could not be carried into effect if the failure to have mandate issued within twelve months rendered it void. The power therefore inheres in this court to enforce its judgment, whether the mandate issued or not, and the motion is therefore overruled.