author: Hart, >C. J.,

text:
    American National Insurance Company of Galveston, Texas, v. Lacey.
    Opinion delivered January 26, 1931.

      Coleman <& Riddick, for appellant.

      C. T. Carpenter, for appellee.
   Hart, >C. J.,

(after stating the facts). The controlling question in the case is, did the applicant comply with the essential conditions contained in the policy and the application therefor upon which the insurance company’s liability depended? In this view .of the matter, it is immaterial to determine whether the policy was dated March 4, 1929, or was issued February 22, 1929, as contended by counsel for the plaintiff. The reason is that the application, which we have copied in our statement of facts, provides that no liability shall exist against the company unless the policy is delivered to the applicant while he is alive and in good health. In other words, the policy contained an express provision that it was not to become effective unless it was delivered while the applicant was in good health.

In Peebles v. Eminent Household of Columbian Woodmen, 111 Ark. 435, 164 S. W. 296, it was held that provisions in an insurance contract of a mutual benefit association stipulating that there was no liability for benefits on the part of the insurance company unless the certificate or policy was delivered to the applicant while in good health was a condition precedent which might be waived by the insurer, since the provision is made for the company’s benefit. That this is in accordance with the general rule on the subject, see case note to 5 A. L. R. 1575.

We can perceive no good reason why this rule should not be applied in the present case. The parties have agreed that the question of waiver of the condition in question on the part of the company is not in the case. Indeed, counsel for the plaintiff rely upon the case cited above and seek a recovery in this case upon the question of estoppel on the part of the insurance company. We are of the opinion that the facts and circumstances do not furnish any substantial evidence upon which to predicate estoppel on the part of the company. By invoking the doctrine of estoppel, counsel for the plaintiff seek to set aside or annul a condition precedent in the policy upon which liability of the defendant company is based. It seems to us that to hold the policy good under the circumstances of this case would be to abrogate and set aside the contract of insurance and to hold the company liable for the payment of a policy against the very terms of the contract.

The only escape from this conclusion is estoppel. Without knowledge, there can be no estoppel. It is not claimed that the applicant was not fatally sick at the time the policy was delivered on the 4th day of March, 1929. According to the plaintiff’s own testimony, Edward Lacey had been carried to the hospital in the city of St. Louis on the 27th day of February, 1929, ill with pneumonia, and never got out of his bed from that date until his death on the 14th day of March following. It is not claimed, and the record does not show, that the company was informed of his illness or the serious character of it. This case is totally unlike the Peebles case cited above and relied upon by plaintiff, because in that case the company accepted premiums from the insured for a period of two years' after the clerk of the local lodge had delivered the policy to the applicant. The court said that it would be manifestly unjust to permit an insurance company with full possession of facts that it intended to rely on to defeat the collection of the policy when it matured, to continue to demand and receive from the insured premiums as if there was a binding and valid contract of insurance.

Here the payment of premiums was small and inconsequential, and the time from the date of the delivery of the policy to the death of the applicant was too short for any legitimate inference that the company had es-topped itself from relying upon the condition precedent in the policy. It is not claimed that there was any direct knowledge on the part of the company that the appellant was fatally ill when the policy was delivered, and there is no acceptance of premiums for any length of time after that. The time between when the policy was delivered and the death of the applicant from the disease with which he was suffering at the time the policy was delivered was entirely too short to support any legitimate inference upon which an estoppel could be predicated. As sustaining this view, we cite the following cases: Cable v. United States Life Ins. Co., 111 Fed. 19 ; Piedmont and Arlington Life Ins. Co. v. Ewing, 92 U. S. 377 ; Insurance Company v. Wolff, 95 U. S. 326 ; Langstaff v. Metropolitan Life Ins. Co., 69 N. J. Law 54, 54 Atl. 518 ; Reese v. Fidelity Mutual Life Association, 111 Ga. 482, 36 S. E. 637 ; Thompson v. Travelers Insurance Co., 13 N. D. 444, 101 N. W. 900; and Howell v. Prudential Insurance Co., 153 Ala. 611, 45 So. 208.

Therefore, the judgment will be reversed; and, in as much as the case seems to have been fully developed, the complaint will be dismissed here. It is so ordered.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Johns v. Hudson.
    Opinion delivered January 26, 1931.

      W. D. Qravette, for appellant.

      Reid, Evrard & Henderson, for appellee.
   Hart, C. J.,

(after stating the facts). The judgment of the circuit court was wrong. Where there has been a breach of agreement on the part of the landlord to make repairs, if the repairs are extensive and the cost excessive in comparison with the rent, the measure of the tenant’s damages is the diminution of the rental value of the property by reason of such nonrepair; but where the repairs are inexpensive as compared with the rent, the measure of the tenant’s damages is the cost of making such repairs. Young v. Berman, 96 Ark. 78, 131 S. W. 62, 34 L. R. A. (N. S.) 977 ; and Frank v. Rogers, 156 Ark. 120, 245 S. W. 311.

According to the testimony of the plaintiffs, the cost of the repairs was small, and the plaintiffs repaired the roof whenever they were asked to do so by the defendant. The defendant did not claim that there was any serious damage to his goods on account of the defective roof. The defendant admitted the rental contract and that he had agreed to pay $125 per month as rent. He denied, however, that he made no complaint to the plaintiffs about the leaky condition of the roof. On the other hand, he testified that he made numerous complaints about the leaky condition of the roof. He stated that he kept the rent paid up until the first of January, 1928. According to his own testimony, he then made complaints about the leaky condition of the roof, and the plaintiffs told him if he was not satisfied to move out. He replied that he would do so, and stated that he did do so on the 22d day of February, which was as soon as he could obtain a suitable store building for his business. Under these circumstances, he was not entitled to any damages for the difference between the rental value of the premises in the condition resulting from the failure to repair the roof, and what their rental value would have been if the plaintiffs had repaired the roof properly. The defendant could not notify the plaintiffs that he was going to move on account of the failure of the latter to repair the roof and then continue to occupy the premises at a reduced rental. Therefore, in the application of the principles of law above announced, under his own testimony, the court erred in submitting to the jury' the question of his right to recover damages on account of the diminished value of the premises by reason of the defective condition of the roof.

The instructions upon which the case was submitted to the jury are not included in appellant’s abstract and brief; and, under our settled rules of practice, it will be considered that the jury found the amount of rent due the plaintiffs under proper instructions from the court. In the application of this familiar rule of practice, the court must also indulge the presumption that the right of the defendant to recover special damages to his goods on account of the failure of the plaintiffs to repair the leaky roof was submitted to the jury under proper instructions. This court has always held that upon appeal it will 'be considered that the instructions given by the court are correct unless the instructions are set out in the abstract and brief of appellant and proper exceptions saved to the giving of them. Morris v. Raymond, 132 Ark. 450, 201 S. W. 116 ; Brown Bros. & Carnahan v. Smiley, 158 Ark. 640, 244 S. W. 351 ; Bish v. Woods, 162 Ark. 463, 258 S. W. 352 ; and National Life & Accident Ins. Co. v. Robinson, 181 Ark. 1, 24 S. W. (2d) 878.

It will be noted that the jury made a specific finding of the amount of rent due the plaintiffs and of the measure of damages due the defendant on account of the diminished rental value of the premises, which we have held that the defendant was not entitled to recover under his own testimony. This error may be corrected without a reversal of the judgment. The error may be eliminated by rendering judgment here for the amount found to be due in favor of the plaintiffs for rent less the amount of special damages suffered by the defendant by reason of the rain which descended upon his goods and damaged them. The amount of the rent due the plaintiffs, as found by the jury, was $218.76, and the amount of special damages for the goods damaged due the defendant was $151.75. This leaves a balance in favor of the plaintiffs of $67.01, for which sum judgment will be entered here in favor of the plaintiffs, with interest at the rate of six per cent, per annum from February 1, 1928, which was the date when the last installment of rent was due. The cost of the appeal will he adjudged against the defendant. It is so ordered.


author: Smith., J.

text:
    Perkins v. State.
    Opinion delivered January 26, 1931.

      J. M. Shinn and W. F. Reeves, for appellant.

      Ilal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Smith., J.

Appellant wafi convicted under an indictment charging him with the crime of grand larceny, and he seeks by this appeal only to question the sufficiency of the indictment under which he wa,s tried. The indictment alleges that he stole “two animals of the cattle kind, the property of 'Cratus Sterlin. ’ ’ The property alleged to have been stolen was not otherwise described, and it is earnestly insisted that this description is insufficient, for the reason that, if defendant were again tried for the larceny of these animals under a more particular and sufficiently definite description he could not plead the conviction under this indictment as a bar to that prosecution, for the reason that the indictment describes nothing definitely. It is also insisted that the description of the property alleged to have been stolen is too vague and indefinite for defendant to properly prepare his defense.

We are cited to the definition of the word “cattle” appearing in Webster's New International Dictionary, which reads: “'Collectively, live animals held for property or raised for some use, now usually confined to quadrupeds of the (bovine family, but sometimes including all domestic quadrupeds, as sheep, goats, horses, mules, asses and swine. Also, formerly, rarely used as a singular for beast, ox.”

We are cited also to other definitions of the word “cattle,” which include all domestic quadrupeds, as sheep, goats, horses, mules, asses, and swine, but such is not the meaning of the word “cattle” as employed in our statute on the subject of the larceny of cattle. It reads as follows: “Every'person who shall mark, steal or kill, or wound, with intent to steal, any kind of cattle, pigs, hogs, sheep, or goats, shall be guilty of a felony, and, upon conviction thereof, be imprisoned at hard labor in the penitentiary for any time not less than one year nor more than five years.” Section 2490, >C. & M. Digest.

We have'a statute on the subject of the larceny of horses, etc., which reads as follows: “Whoever shall be convicted of stealing any horse, mare, gelding, filly, foal, mule, ass or jennet shall be imprisoned in the State Penitentiary not less than one nor more than fifteen years.” Section 2491, €. & Lf. Digest.

The word “cattle” could not, therefore, be said to include horses,, mules, etc., within the meaning of our statute, for the reason that a different and a higher punishment is prescribed for the larceny of the latter than is prescribed for the larceny of the former. The word “cattle,” as it appears in § 2490, does not include pigs, hogs, sheep or goats, for those animals are separately named as the subjects; of larceny, made felonies, without regard to value, after the word “cattle” has been employed. We are therefore of the opinion that the word “cattle,” as appearing in § 2490, O. & M. Digest, means animals of the bovine species.

In the .case of State v. Esser, 42 Nev. 218, 174 Pac. 1023, the defendant was charged with the crime of grand larceny, alleged to have been committed by stealing nine head of cattle, the property of another person. In an opinion which held the indictment sufficient, the Supreme Court of Nevada construed the word “cattle,” appearing in the grand larceny statute of that State, to embrace cows, bulls, and steers of the domesticated bovine genus. After a review of a number of cases, the court held that the word “cattle” as generally used in the Western States,'means neat cattle, straight-backed, domesticated animals of the bovine genus, regardless of sex, and includes cows, bulls and steers, but not horses, mares, geldings, colts, mules, jacks or jennies, goats, hogs, sheep, shoats, or pigs.

In the case of State v. DeWitt, 152 Mo. 814, 53 S. W. 429, the Supreme Court of Missouri held an indictment sufficient charging the taking of “two head of neat cattle, ’ ’ as being in the language of the statute.

In the case of Bell v. State, 175 Ark. 1169, 1 S. W. (2d series) 1006, we held an indictment sufficient which charged the larceny of “one certain ‘yearling,’ the property of Joe Allen,” and in so holding we said that “in common parlance, or in the vernacular of this State, we know that the word ‘yearling’ refers to an animal of the cow kind one year old, or in the second year of its age.” See also, State v. Haller, 119 Ark. 503, 177 S. W. 1138 ; State v. Gooch, 60 Ark. 218, 29 S. W. 640.

The indictment in the instant case is in the language of the statute, and we hold is sufficient to charge the larceny ..of two animals of the bovine genus, and therefore sufficient, and, as no other question is raised, the judgment is affirmed.


author: ■Smith, J.

text:
    Stafford v. First National Bank.
    Opinion delivered January 26, 1931.

      Brewer <& Cracraft and J. G. Brookfield, for appellant.

      Ogan & Shaver, for appellee.
   ■Smith, J.

The, facts out of which this appeal arises are sufficiently stated in the opinion on a former appeal. Stafford v. First National Bank, 178 Ark. 997, 13 S. W. (2d) 21. Only such facts will therefore be restated as are necessary to an understanding of the legal principles which we find to be controlling on this appeal.

In the former opinion we held that an instruction, there set out, which submitted to the jury the question whether the deposit garnished was a special deposit, should have been given. Upon the remand of the cause this question was submitted in an instruction substantially conforming to the instruction which we said should have been given.

It was contended on the former appeal, as it is here, that the deposit garnished was not the individual property of the judgment defendant, but belonged to a partnership of which he was a member. The testimony was sufficient to support a finding either way on this question of fact, but we reversed the judgment on the former appeal because of the error of the court in defining a partnership. Upon the present appeal no objection is made to the definition of a partnership which the court gave.

The validity of the writ of garnishment was questioned on the former appeal, but we did not set out the testimony relative to its validity, because, as we there said,, “the court did not submit that issue to the jury on his own motion, and no request was made by appellants for him to do so.”
This question was submitted, however, at the trial from which this appeal comes, and arises out of the authority or lack of authority of Miss Bullock to issue the writ of garnishment. This lady appears to have been a factotum in the clerk’s office, and to have been for about two years prior to the issuance of the writ, but she had not formally been appointed a deputy, because she was under age. The circuit clerk testified, in effect, that Miss Bullock was his alter ego; that she was his stenographer and did his typewriting, and that she had full authority to sign his name officially and to attach the seal of his office when required, and that she had authority to issue in his name the writ of garnishment which she did issue in this case. The testimony appears to be undisputed that much of the business of the clerk’s office was transacted by Miss Bullock, and that she signed the clerk’s name when required. The issue as to her authority was submitted to the jury under an instruction which reads as follows: “1. If you find from the proof in this ease that Miss Bullock, who issued and signed the writ of garnishment in controversy here was orally authorized by the clerk of the circuit court of Cross County to perform all the duties of his office in his absence, that this authority was given orally, and you further find that she entered into the apparent possession of the clerk’s office and worked in this office for a long period of time prior to the issuance of this writ of garnishment, and you further find that during all this time she was performing the duties of the clerk, and that the general public acquiesced in this condition and situation, and it was genr erally understood by the public at large during this time that she was performing these services, and that the public generally accepted her services under the condition and circumstances aforesaid, then you are told that she had a right to issue this writ of garnishment. ’ ’

The jury’s verdict concludes this issue of fact, but the question of law remains, whether, notwithstanding these facts, the writ was void because actually issued by the hand of one not a legal deputy. We think the writ was valid.

At § 151 of Constantineau on the De Facto Doctrine it is said: “A person who enters into an office and undertakes the performance of the duties thereof by virtue of an election or appointment is an officer de facto, though he was ineligible at the time he was elected or appointed, or has subsequently become disabled to hold the office. Indeed, 'it is settled by a current of authority almost unbroken for over 500 years in England and this country, that ineligibility to hold an office does not prevent the ineligible incumbent, if in possession under color of right and authority, from being an officer de facto with respect to his official acts, in so far as third persons are concerned.’ The reason of the rule is that 'ineligibility of an officer is as difficult of ascertainment as his actual election, and sound policy requires that the public should be no more required to investigate the one than the other, before according respect to his official position.’ ”

Here Miss Bullock was in possession of the office under the authority of the de jure clerk, for whom she was acting and in his name. The clerk not only does not question, her authority, but he confirms it, and we therefore hold the writ was not invalid as having been issued without authority.

The testimony shows that Miss Bullock had the authority which Davidson did not possess in the case of Daughtery v. Garner, 169 Ark. 368, 275 S. W. 706, and that case, therefore, is not contrary to the conclusion here announced. Indeed, it accords with the view here expressed, for it was there held (to quote a head-note) that "a transcript signed by a person not authorized either expressly or by implication, to act as deputy clerk,, is not properly authenticated, and will be stricken from the files.” Miss Bullock possessed the authority to issue the writ, and it was therefore not void.

As no error appears in the judgment, it must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Turner v. State.
    Opinion delivered January 26, 1931.

      E. W. Brocjcman, for appellant. *

      Eal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Lincoln County on May 22,1930', for selling intoxicating liquors, and was tried and convicted of the crime on September 15 following, and was adjudged to serve a term of one year in the 'State Penitentiary as a punishment therefor, from which judgment of conviction he has duly prosecuted an appeal to this court.

The first assignment of error relied upon for a reversal of the judgment was the refusal of the court to postpone the trial until the next morning, the 18th of September, for time to procure the attendance of a witness by the name of Gergis Gassaway who wonld have testified, if present, that no arrangements were made in his presence by W. J. Shipp to 'buy intoxicating liquors from appellant, and that he bought none from him in his presence and hearing. The request for a postponement of the trial was made after 'both sides announced ready for trial, and after four members of the petit jury had been selected to try the case, at which time appellant first learned that Shipp would testify that arrangements for the purchase of the whiskey were made in the presence of Gergis Gassaway. W. J. 'Shipp was the chief prosecuting witness whose name was indorsed on the indictment and who testified in the trial of the cause that he made arrangements to buy two pints of intoxicating liquor from appellant in the presence of Gergis Gassaway and that he believed Gassaway was present when appellant returned with the whiskey and received pay for same.

The trial court did not abuse its discretion in refusing to grant a postponement of the trial, as appellant failed to show diligence in the procurement of his witness before the trial began. Shipp’s name was indorsed upon the indictment and by interviewing him appellant could have obtained information relative to the circumstances of the alleged sale long before the trial began. He was not triedffor about three months after he was indicted. Had he exercised proper diligence, he could easily have procured the attendance of his witness, Gergis Gassaway, without having to ask a postponement of the trial to do so. Appellant lost the benefit of the testimony of Gergis Gassaway through his own neglect, and not on account of an 'abuse of discretion by the trial court.

The next assignment of error relied upon for a reversal of the judgment is because the court instructed the jury as follows relative to the possession of liquor at different times, to-wit:

“The defendant is charged with selling liquor. The admission of the testimony of his having possession of liquor at different times was to enable you to determine, as one of the circumstances in the case, whether or not he was guilty of selling the liquor' as charged in the indictment, and you may consider it for that purpose and that purpose alone.”'

'Appellant admitted on cross-examination that he had been convicted three times in Lincoln 'County for unlawfully possessing liquor, but explained that he 'bought the liquor for private use and not to sell, and that he pleaded guilty because he was frightened and followed the advice of officers who told him it was best to do so. He admitted though that the officers made no threats in order to induce him to plead guilty to possessing liquor for sale.

J. M. Harvey, a justice of the peace, testified that at the time appellant was arrested for selling liquor to Shipp he pleaded guilty in his court to a charge of possessing liquor for sale.

Appellant argues that the above instruction given by the court assumed that he had liquor in his possession on different occasions for sale,, and that the effect of the instruction was to exclude his explanation from consideration by the jury, and that it really was an instruction upon the weight of the; evidence. The instruction is not susceptible of the construction placed upon it iby appellant. Its meaning, properly construed, is that the jury might consider the testimony which had been introduced relative to the possession of liquor at different times as a circumstance in arriving at appellant’s guilt or innocence. The instruction did not tell the jury that the possession of liquor at different times tended to show that appellant was guilty of selling liquor, but that they might consider possession thereof at different times as a circumstance in arriving at his guilt or innocence. Nor did it tell the jury to ignore appellant’s explanation of the possession thereof at different times. The possession and explanation thereof was submitted to the jury merely as one circumstance in the case to be weighed along with all the other evidence by them in arriving at appellant’s guilt or innocence. The instruction is in no sense an expression by the court upon the weight of the evidence. The jury was not told what weight to attach to the circumstance of the possession of liquor at different times.

The next assignment of error relied upon for a reversal of the judgment is that the instruction referred to was given orally 'by the court. Appellant did not ask the court to reduce the instruction to writing, and did not specifically object to it on the ground that it was oral instead of in writing. Only a general objection was interposed to the instruction, presumably upon the ground that it was an erroneous statement of the law applicable to the facts.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Marsh v. State.
    Opinion delivered January 26, 1931.

      Trimble, Trimble & MoCrary and Chas. A. Walls, for appellant.

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

This appeal is prosecuted from a judgment of conviction of appellant for murder in the second degree with a sentence of 8 3rears in the penitentiary upon an indictment charging him with murder in the first degree for the killing of one Roy Phillips.

The evidence on the part of the State showed that Roy Phillips and one Hartford Harris were on the 5th day of August, 1930, walking to Beebe from Roy Phillips’ home in Lonoke County. On the -way Harris suggested that they cut across “these-woods,” saying that they might find a drink, that he had heard that Charlie Marsh had a loading* place in the woods, and they might find something. As Harris and Phillips were walking through the woods in a northwesterly direction, a shot was fired which barely missed Harris. They turned and ran in the opposite direction and five or six more shots were fired.' At the last shot Roy exclaimed: “Hart, I’m killed,” ran about 30 steps and fell. Harris upon looking around saw appellant Marsh not 50 yards away with a gun in his hand. Harris stated the first two shots were fired rapidly, the others not so quickly, while they were running southeast side by side. When Phillips was hit, witness “angled in close to him,” and he took two or three hard gasps and died where he fell. Witness looked back and saw Marsh coming, and said, “As I looked back and saw him, I squatted down by Roy and when I saw he was going to come on up there I raised up before he got there.” Marsh came up within 5 or 6 steps. He had a g*un which was pointed directly at witness and said: “Who is it?” Witness told him it was Roy Phillips. Marsh put his gun in his pocket and said: “Who done it?” Witness replied: “You are the only man I have seen.” Marsh stood around a little bit, walked around to the other side and didn’t come near Roy. Marsh stated that he was on the porch with his wife and Finis Bland and Emmett Hammond and heard the shots and came running over. Witness saw Marsh just as Roy fell. It was about 8 or 10 seconds until Marsh came up within 10- or 15 feet of him. Marsh had come from the northwest. Witness later found evidence of three stills in the woods. Witness said he was acquainted with Charlie Marsh and knew where he lived. He saw a still owned by Marsh in operation sometime in November or December of last year, but had not been around his premises since he was there in November or December squirrel hunting, when Marsh gave him a drink of whiskey. He had not seen a still in operation hy Marsh since then.

Appellant testified that he owned a farm of 163 acres in Butler Township, where he had lived since 1903 with the exception of a few months; said on the morning of the shooting, he went to Beebe with Will Marsh, leaving’ home around 9 or 10 o’clock and returning about 11:30 or a little later, discovered they had lost a sack of shorts, turned around and went back to find it. Coming back he drove his car into the shed, and he and Will Marsh had a cold dinner in the house. He watered some of the stock, and they went down to the lower place to look over the crop, and on the way stopped for a drink of water where the women were washing near the field. They were in the field for some little time, and, upon starting hack, the women were leaving from the washing place, and he and Will stopped again and got a drink and started on towards the house. They were something like 300 yards from the house when the shooting and hollering began. Witness ran into the woods where1 the noises came from and saw Hartford Harris and Boy Phillips lying there and said: “Hartford, what is the matter?” He said “Somebody has killed Boy Phillips.” I said: “Who in the world done it?” He said: “I don’t know; I haven’t seen any one.” I said: “Where was he shot at?” and he showed me. Witness did not examine the body at all, couldn’t see any breathing, and thought he was dead. Harris said: “Charlie, what will we do?” and I said: “I don’t know; I’ll go get my car and we’ll take him home.” He said: “How long will you be gone?” and I said: “Just as quick as I can make it.” Witness ran out to the road coming out ahead of Will Marsh, to whom he shouted telling him what had.happened. When he reached the house, his wife asked “what had happened” and he told her “that somebody had killed Boy Phillips.” She told him not to take the body home yet, but “to get the law.” He went on and picked up Luther Gartrell, a justice of the peace, who was teach-, ing* in the sclioolliou.se, and some of the other neighbors near there, and they went to the place where the killing occurred. He said Mr. G-artrell asked Hartford Harris who did it, and Harris replied: “I don’t know. I have no idea who did it.” Witness denied having a pistol in his hand when he came up to where the boy was lying on the ground, and that he had stated that he was on the front porch of his home when the shooting occurred; explained that, when he had answered Stokes and the other witnesses who testified, he said he was on the front porch at the time of the shooting, that he understood them to be asking, not where he was, but where the others were, and told them that they were on the front porch. He denied that he had given Harris a drink in November last; said he was a member of the school board and had refused to hire Harris as a teacher because some of the parents objected to him, and that Harris was not on speaking terms on account of this and became offended with him when he told him that they had already employed a teacher for the summer.

Several witnesses testified that they had been upon or close by the road at the time when witness Harris and Phillips would have passed by, if they had come as Harris stated they had traveled, and did not see them.

No complaint is made of the instructions, but it is claimed that the court erred in allowing prejudicial remarks made by counsel assisting the prosecuting attorney in the opening of the case and in the closing argument, that incompetent testimony was introduced relative to the operation of the still by appellant in November before the shooting and the ownership of a still found on his premises after the killing in Augmst.

No error was committed by the court in the admission of the testimony tending to prove the operation of the still 'by appellant, since it tended to show a motive for the shooting that resulted in the death of Roy Phillips. In Stotts v. State, 170 Ark. 188, 279 S. W. 364, it was said (quoting syllabus) : “All evidence is admissible which tends to prove the issue, and no facts are forbidden to he shown, except such as are incapable of affording any reasonable presumption or inference in elucidation of the matters involved in the issue. ’ ’

In Stone v. State, 162 Ark. 154, 258 S. W. 116, the court recognized the general rule that evidence of a distinct offense is inadmissible to prove another offense, and the exceptions thereto are stated that such testimony was admissible when necessary to fix the intent of the accused or to prove the motive for the offense charged against him, notwithstanding its admission disclosed other offenses for which he might be subject to indictment. It was said there: “The exceptions to the general rule as to the admission of evidence of collateral crimes, when the evidence of the extraneous crime tends to identify the accused as the perpetrator of the crime charged, or to show the intent with which the defendant committed it, is as well' settled as the general rule itself.”

No error was committed in the statement of the case made by the special prosecuting attorney, nor in the closing argument complained of. The statement in the closing argument was made in reply to the argument that the appellant and his family had farmed a goodly number of acres of land well, which would indicate that he was not a bootlegger but a substantial citizen; the attorney saying that the defense had a right to introduce testimony showing whether the defendant’s reputation was good or bad, and that the State was without right to attack his reputation unless this Avas done. Upon objection the court told the .jury that a person’s reputation is presumed good until proA^ed otherwise; that in his. opinion only the defense could bring his good reputation in issue, but that was not an issue in the case, and the court stated he only permitted the argument in answer to what had been said by the attorney for the defense; and that the jury are to ¡be governed by the testimony and law in the case. Lentz v. State, 169 Ark. 31, 272 S. W. 847.

Neither was error committed in the argument that defendant was in possession of the land where the.still and mash were found. The court, upon abjection to the testimony, told the jury that the fact that the land was not fenced did not necessarily exclude the defendant’s being’ in possession of it, the defendant having denied that he was in possession, but other witnesses testified that he used it as a pasture at the time of the killing, leaving it a question for the jury to decide.

If the statement of Hartford Harris, the only witness to the killing, was true, and the jury evidently believed it was, as they had the right to do, the appellant intentionally and wantonly fired at these boys crossing the wooded lands in front of his house without provocation or any necessity for protecting' himself or his property at the time, unnecessarily killing the decedent, Roy Phillips, without justification or excuse. The evidence would have supported a verdict of conviction of the higher offense, and the case was submitted to the jury on correct instructions. After a careful examination of the record, it is found to be free from prejudicial error, and the judgment is accordingly affirmed.


author: Kirby, J.,

text:
    Roberts v. Owen.
    Opinion delivered January 26, 1931.

      Ingram <& Moher, for appellant.

      W. A. Leach, for appellee.
   Kirby, J.,

(after stating the facts). Appellant urges that the court erred in allowing the redemption under the terms of the five-year statute of limitations, (§§ 5642-44, C. & M. Digest), and in not holding the right of redemption barred in two years under the new statute, § 2, act 359 of 1925, which reads as follows:

“Hereafter all persons shall have the right to redeem from the sale for taxes of road, drainage, levee or other improvement districts at any time within two years from the date when such lands are sold by the commissioner making the sale and not thereafter; provided, that the provisions of this section shall not apply to property which shall have become delinquent or have been forfeited prior to the passage of this act.” Although this act -was in force when the foreclosure suit was brought on the 6th day of May, 1927, and conceding without deciding that it -relates to sales of lands within special improvement districts in cities and towns, the majority is of opinion that it has no application here, since it is expressly declared in the act: “That the provisions of this section shall not apply to property which shall have become delinquent or have been forfeited prior to the passage of this act.” The terms “delinquent” and “forfeited” have a well-defined meaning in our taxation statutes, §<§, 5673 and 6695, C. & M. Digest; and it was evidently the intention of the Legislature to except from the provisions of this act, which limits the time for redeeming such property to two years, both lands that had become delinquent or had forfeited prior to the passage thereof, leaving the time of redemption 5 years as fixed by the statute in force at the time the lands became delinquent or were forfeited. The disjunctive conjunction “or” is used in its ordinary meaning and acceptation (Webster’s New International Dictionary, 1925 ed.; Pappano Hirst Club v. Bryan, 52 A. L. R. 51; 29 Cyc. 1502), and is not to be construed to mean “and” in arriving at the legislative intention. If it were not so, the Legislature would have excepted only forfeited lands from tbe provisions of the new statute.

The court therefore correctly held that the owners of the lots were entitled to redeem within five years from the time of the sale of the forfeited lands for the assessments due for the years before the passage of the new act; and, even if it be held that the new act repeals the old, so far as the time of redemption is concerned, since the sale was made for both taxes delinquent for the years before the passage of the last act and for the years that they were delinquent after the passage of the new act, if it be held to repeal the old act in redemption of the lands, the owners would still be required to pay the amount of all the faxes for which the lands were sold, because they were delinquent and subject to sale for the years both before and after the passage of the new act.

The decree is correct therefore if the owners are required to pay all the taxes for which the lands were sold in the redemption thereof; but it is not clear in that respect, and the cause is therefore remanded, with directions to modify the decree so as to clearly impose that requirement. It is so ordered.


text:
    American Southern Trust Company v. Vester.
    Opinion delivered January 26, 1931.

      E. L. Holloway, for appellant.

      F. G. Taylor and C. T. Bloochvorth, for appellee.
   Kirby, J.,

(after stating’ the facts). The testimony shows that appellant was the owner of the note at the time of the filing- of the petition in bankruptcy which was listed as already set out. The Bankruptcy Act provides: 17, 1 Collier on Bankruptcy, 13 Ed., p. 591; and 11 U. S. C. A., § 351: “A discharge in bankruptcy shall release the bankrupt from all his provable debts, except such as * * * (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had actual knowledge or notice of the proceedings in bankruptcy.” In Steele v. Thalheimer, 74 Ark. 516, 86 S. W. 305, this court held a discharge valid where the correct name of the creditor was given in the schedule, althoug’h his post-office was incorrectly given as Little Rock, when he in fact lived at Clinton and had received no notice of the bankruptcy proceedings on that account. Appellant claims he comes within the exception No. 3 in § 17 of the Bankruptcy Act providing the discharge shall not release the bankrupt from provable debts, except such as “(3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had actual knowledge or notice of the proceedings in bankruptcy.” Although the appellant company, the American Southern Trust Company, was not named as a creditor in the schedule, which did show correctly the name and address of the bank to which the note was given, that it had been transferred to the Southern Bank & Trust Co., Little Rock, Arkansas, and was then ih the hands of E. L. Holloway, of Corning, Arkansas, for collection, notice was sent to all parties as listed. This was a sufficient compliance with the statute requiring the name of the creditor to be duly scheduled if known to the bankrupt, its purpose being that notice should be given to him of the bankruptcy proeeedings. The debt was described as having been given the Bank of Success, "assigned to Southern Bank & Trust Company (note), Little Rock, Arkansas, (in the hands of E. L. Holloway, Corning, Arkansas, for collection) $610.” Notice was given to all these parties and to appellant’s attorney, who had the authority to collect the note, and had already demanded payment. This notice was given to the attorney and, the knowledge acquired while .acting for the principal, the creditor, relating to a matter within the scope of his agency, and the agent is presumed to have communicated it to his principal, as it was his duty to do. The discharge would have been valid and effective to release the bankrupt from the payment of this note, had he scheduled it as "unknown.” The name of the creditor, although incorrectly given, could easily have been ascertained from the whole description given, and the notice to appellant’s attorney, having the note in his possession for collection, of the bankruptcy proceedings, whose duty it was to communicate it to his principal, was notice to his principal as effectually as though it had come directly to it. There is no allegation or intimation that the failure to give the name of the creditor correctly was intentional or fraudulent.

A careful consideration of the whole case discloses that the court did not err in holding that the discharge in bankruptcy was effectual to release appellee from the payment of the debt as scheduled, and the .judgment is therefore affirmed.


author: Mehaffy, J.

text:
    Missouri Pacific Railroad Company v. Fine.
    Opinion delivered January 26, 1931.

      Thomas B. Pryor and Thomas B. Pryor, Jr., for appellant.

      Starbird S Starbird, for appellee.
   Mehaffy, J.

On the twenty-fifth day of January, 1930, appellee filed suit in the Crawford Circuit Court to recover damages alleged to have been caused by the negligence of the appellant.

Appellee delivered a carload of peaches to appellant on the 29 th day of July, 1929, for shipment and delivery to White & Allen at Joplin, Mo. The peaches had been sold by appellee to White & Allen, f. o. b. Alma, Arkansas, and it was alleged, if they had been delivered in good condition, they would have been taken by White & Allen at the contract price. It was alleged, however, that appellant was negligent in that it did not properly refrigerate the peaches and did not carry them with due diligence, but delayed the shipment two days, and did not deliver the same in good condition, but delivered them, in a bruised, mashed, specked, and rotten condition; that, by reason of the alleged negligence of the appellant, appellee was compelled to sell the peaches at a loss of $154.80, and he sues for this amount of damages.

There was a verdict and judgment for the amount sued for, and appellant filed motion for new trial, which was overruled, and this appeal is prosecuted to reverse said judgment.

At the request of appellee the court gave to the jury the following instruction No. 1: “You are instructed that a common carrier, in the absence of an expressed stipulation in the contract to the contrary, is responsible as insurer of goods received for shipment against all loss or damage, except such as is caused by the act of God or the public enemy or from inherent defects or weaknesses in the commodity shipped; that when a shipment of perishable goods is received for transportation, it must exercise ordinary care in the adoption of such means of transportation in furnishing such equipment as will accomplish the purpose.”

This instruction was erroneous and should not have been given. In the first place, it tells the jury that the appellant is responsible as an insurer. This was not correct. The suit was based on negligence, and the burden was upon appellee to show by the evidence that the appellant was guilty of negligence causing the damage. In the next place, the instruction tells the jury that the carrier, when it receives a shipment of perishable goods for transportation, must exercise ordinary care in the adoption of such means of transportation, must furnish such equipment as will accomplish the purpose. This part of the instruction was erroneous because there is nothing either in the pleadings or the evidence tending to show that proper equipment was not furnished.

Instruction No. 3 should not have been given in the form it is, because it tells the jury it was the duty of the appellant to furnish a properly constructed refrigerator car, etc. There is no complaint about failure to furnish a properly constructed refrigerator car, and there is no evidence that a properly constructed car was not furnished.

Whether the carrier was negligent either in failure to properly ice the car or negligent in delaying the shipment are questions of fact to be determined by the jury from the evidence. We do not set out the evidence because the judgment will have to be reversed for the giving of the erroneous instructions above mentioned and the cause will have to be tried again.

This suit was based on the alleged negligence of the carrier.

In suits for damages due to negligence the shippers must prove the negligence in order to recover. St. Louis- San Francisco R. Co. v. H. Rouw Co., 174 Ark. 1, 294 S. W. 414; American Ry. Exp. Co. v. H. Rouw Co., 174 Ark. 6, 294 S. W. 416; H. Rouw Co. v. St. Louis-San Francisco R. Co., 172 Ark. 881, 290 S. W. 936; Chicago R. I. & P. Ry. Co. v. Geo. E. Shelton Produce Co., 172 Ark. 1017, 291 S. W. 428; H. Rouw Co. v. Amer. Ry. Express Co., 173 Ark. 84, 291 S. W. 1001; Chicago R. I. & P. Ry. Co. v. Robinson & Co., 175 Ark. 35, 298 S. W. 873.

We said in the last case cited, in discussing an instruction very similar to instruction 1 in the instant case: “This instruction would permit a recovery without any negligence. And, since we hold that the action is based on negligence and negligence must be proved, we think that, instead of giving this instruction, the court should have instructed the jury that plaintiff would have to show that the injury or damage was the result of the neglig'ence of the carrier.” We also held in a more recent case that it was incumbent upon the shipper to show loss, damage, or injury due to the delay, or damage by carelessness or negligence of the company, and that the burden was upon the shipper to show that the damages were caused bjr the negligence of the carrier. St. Louis-San Francisco Co. v. Burford, 180 Ark. 562, 22 S. W. (2d) 378.

We deem it unnecessary to discuss the other questions that are discussed by counsel because the suit is based entirely upon the negligence of the carrier, and when the case is tried again the burden will be upon the shipper to show that the damage was caused by the negligence of the carrier, and this will be a question of fact for the jury.

For the error in giving the instructions above mentioned, the judgment is reversed, and the cause remanded for a new trial.


text:
    Edgeman v. State.
    Opinion delivered January 26, 1931.

      Brock $ Williams, for appellant.

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

The appellant was indicted, tried, and convicted in the circuit court of Franklin County of the crime of seduction.

Hazel Maynard testified that she was eighteen years old, the daughter of W. R. Maynard, and lived in the Ozark district of Franklin County; that she had known George Edgeman for four or five years; that he began keeping company with her about four years ago, and ceased keeping company with her in September, 1929; that they were engaged to he married some time in 1928.

Witness’ people objected to her keeping company with Edgeman. After they became engaged, witness submitted to have sexual intercourse with him. The first time was in March, 1929, and they had been engaged about three months. She would not have had intercourse with him if they had not been- engaged to be married. She testified that she did not submit readily; that he begged her a good many times before she submitted. Has had intercourse with him at other times, the last time being in September, 1929. She became pregnant and now has a child. It was four months old the 21st of October. They would meet at different places.

About a month after she found out she was pregnant, she told Edgeman, and he said he would not marry her because her folks would not let them stay married. "Witness then told him they could be married for a while, and that would keep her from being disgraced, and he said he would.

After that he said he wouldn’t marry no damn ■woman; he said he had three that way, and they’d be raising hell if he married her. He refused to marry witness.

Witness ’ folks did not want her to marry him. She begged him to marry her, and he would not do it.

A number of witnesses testified about the appellant and prosecuting witness being together on several occasions. Appellant, however, does not abstract this testimony.

The appellant G-eorge Edgeman, testified that he was engaged to marry Hazel Maynard, but said they never did because he never could get enough money; saw her two or three times each month; had intercourse with her and had never refused to marry her; that he tried to get her to marry him after the baby was born, but she told him he was one day too late. Her folks would not let him keep company with her; had to slip around to meet her. She told appellant that her folks would kill them if they married. Witness testified he had been willing to marry her all the time, and when arrested told Mr. Hayden he was ready to marry her any time. When they were first engaged they did not marry because he did not have any money and because she said her folks would kill them both.

Appellant was convicted and sentenced to one year in the penitentiary. He prosecutes this appeal to reverse said judgment.

Appellant concedes that the record does not show the saving of exceptions. His motion for a new trial alleges that the verdict is contrary to the evidence, and that, subsequent to the verdict, the prosecuting witness had made the statement that George Edgeman had tried to get her to marry him and go away with him, but she said she was afraid her father would kill both of them, and she refused to marry, and that it was not George’s fault. Two witnesses made affidavit that they heard prosecuting witness make the above statement. The prosecuting witness, however, testified that her folks objected, but that she would have married him but he refused to marry her. And the appellant himself testifies that the reason he-did not marry the prosecuting witness was that he did not have the money, and that she said that her folks would kill them both. It appears therefore that the appellant himself testified that the prosecuting witness made.the same statement to him that it is alleged she made to the persons whose affidavits were filed in support of the motion for a new trial. There is nothing in the newly discovered evidence that would have any bearing at all on the case except it might impeach the credibility of the prosecuting witness.

In discussing this question this court recently said: “It is finally insisted that error was committed in refusing to grant a new trial on account of newly discovered evidence. This evidence was to the effect that Miss Ashley had stated that she would get money from appellant before the trial. As this testimony tended only to impeach the credibility of the witness, the court committed no error in refusing to grant a new trial on that account. ” Snetzer v. State, 170 Ark. 175, 279 S. W. 9.

This court has often held that as a general rule newly discovered evidence that goes only to impeach the credibility of a witness is no ground for a new trial. Morris v. State, 145 Ark. 241, 224 S. W. 724.

It is earnestly contended by appellant that there is no evidence that Hazel Maynard was a single, unmarried person, and that this, being one of the charges in the indictment, must be supported by proof. Appellant calls attention to a number of cases in support of this contention. The cases relied on by appellant do not, we think, decide the question involved here. It may, however, be conceded that the allegation in the indictment that Hazel Maynard was a single and unmarried female person must be proved.

There is some conflict in the authorities as to the character of proof required, some courts holding that, the prosecuting witness being the only person who could know positively whether she was married, it is necessary for her to testify that she is unmarried. Other courts hold that this fact or statement in the indictment may be proved by circumstantial evidence. This court has held that the fact that the prosecutrix was unmarried may be shown b}^ circumstantial evidence. Smedley v. State, 130 Ark. 149, 197 S. W. 275. See Cook v. State, 102 Ark. 363, 144 S. W. 221; Nichols v. State, 92 Ark. 421, 122 S. W. 1003.

She testified that she was eighteen years old, that her child was about four months old, and that she had known appellant four or five years; that he began to go with her about four years ago and ceased keeping company with her in September, 1929. It appears from the undisputed evidence that she was only about fourteen, probably not that old, when appellant first began to go with her. It is also undisputed that she lived with her father, who was W. R. Maynard; that she was known as Hazel Maynard. Then she and appellant both testified that they were engaged to be married, and it is not disputed that there was a promise of marriage and that they had intercourse. The testimony is in conflict as to the reason they did not get married, but that is immaterial because the appellant himself says that it was because the prosecuting witness said her father would kill them if they did.

The appellant testified that something like two years before the trial he worked for the Maynards, and that he began to court the girl about a month before he started working- there. Appellant does not dispute the testimony of the prosecuting witness that he had known her four or five years. He lived in the same community and worked for her father. This evidence shows that they had known each other since the girl was thirteen or fourteen years old; that they were engaged to be married, and, according to appellant’s testimony, the only reauon they did not get married was because they did not have money enough, and the girl said her father would kill them.

Our statute provides: “Every male who shall have arrived at the full age of seventeen years, and every female who shall have arrived at the age of fourteen years, shall be capable in law of contracting marriage; if under these ages, their marriage is void.” Crawford & Moses’ Dig., § 7073.

If they had known each other five years, the girl was only thirteen, but if only four years she was only fourteen, and could not have married lawfully before that time. The appellant and prosecuting witness therefore both knew that she was an unmarried girl, and the circumstances and evidence above set out sufficiently support this allegation in the indictment.

“On a. trial for the seduction of an unmarried woman, evidence which shows that the woman lived with her father and bore his name, that she had received the addresses of the defendant for more than three years, and that a marriage engagement existed between them when the crime was committed, held sufficient to warrant the jury in finding that the woman was unmarried.” State v. Waterman, 75 Kan. 253, 88 Pac. 1074; State of Iowa v. Heatherton, 60 Iowa 175, 14 N. W. 230; Morgan Lewis v. People, 37 Mich. 518; Bailey v. State, 36 Tex. Cr. 540, 38 S. W. 185.

No objections were -made to the instruction given by the court, and there is no evidence in the record that the prosecuting witness was under duress at the time she gave her testimony, and this was not made one of the grounds in appellant’s motion for new trial.

There is ample evidence to support the verdict, and the judgment of the circuit court is therefore affirmed.


author: McHaney J.

text:
    Abernathy v. Harris.
    Opinion delivered January 26, 1931.

      P. G. Matlock and T. D. Wynne, for appellant.

      Brouse <& Brouse, for appellee.
   McHaney J.

On December 28, 1927, there were delivered to C. C. Viarnell two notes of $1,750 each, one due August 15, 1928, and the other January 1, 1929, and a real estate mortgage to secure same on lots 3, 4 and 5 in the northwest quarter of section 3, and lot 4 in the northeast quarter of section 4, township 6 south, range 15 west, purporting to have been signed and properly acknowledged by appellees, T. M. Harris and Lou Harris, his wife. This mortgage was filed for record January 14, 1928, and was recorded. Two -days later, January 16, Vamell sold and assigned said notes, with the lien -of said mortgage, to appellant for a valuable consideration. Thereafter, on June 23, 1928, appellees, T. M. and Lou Harris, executed a mortgage on the same and other lands to appellee, the Grant County Bank, to secure an indebtedness due to it. A portion of the land covered by both mortgages constituted the homestead of the mortgagors. The notes held by appellant not having been paid when due, he instituted foreclosure proceedings to enforce payment,- making the Grant County Bank a party. Mrs. Harris and the bank defended on the ground that she did not sign the mortgage, nor acknowledge same, and that, ■being on her homestead, it was void. The bank filed a cross-complaint against Harris, his wife, and appellant, claiming its mortgage was the first lien and asking a foreclosure. The court found that Mrs. Harris signed appellant’s mortgage, but that she did not acknowledge same, and that it was invalid in so far as it affected the homestead of the grantors. The bank’s mortgage was foreclosed and declared prior to appellant’s mortgage on that part of the land covered by both mortgages constituting the homestead.

We think the court erred in «0 holding. The decided preponderance of the evidence supports the court’s finding that Mrs. Harris signed the notes and mortgage held by appellant, and we think that the preponderance of the evidence shows that she properly acknowledged same over the telephone. While she denied that she signed appellant’s mortgage, she is contradicted by her husband, by her own admissions and by a comparison of her admitted signature with that on said mortgage. The notary before whom the acknowledgment was taken testified that he had known Mrs. Harris well for 25 or 30 years, was familiar with her voice, and that on the morning of December 28, 1927, she called him on the telephone and told him her husband had “some papers for you to fix up, and you go ahead and fix them. ’ ’ Some time thereafter Mr. Harris called and wanted the deed acknowledged, which was done. He was very positive that it was Mrs. Harris to whom he had talked over the ’phone, that he knew her voice; that she called him “Bythum,” saying, “Is that you, Bythum?” and that Mrs. Harris and a half aunt of his were the only persons who called him by that name. Mrs. Harris denied this, but we think the notary’s testimony is entitled to the more weight, in view of her interest and her denial of her signature to the deed. Acknowledgment taken over the telephone, under the circumstances in this case, is-good. In Wooten v. Farmers’ & Merchants’ Bank, 158 Ark. 179, 249 S. W. 569, such an acknowledgment was held to be good. The mortgage on its face purports to convey the homestead right and to relinquish that of dower. The notary’s certificate of acknowledgment is regular on its face and conforms to the statute. In the above cited case, we quoted from Donahue v. Mills, 41 Ark. 421, the following: “It is now the settled doctrine of this court, as laid down in the opinion by Chief Justice English, in Meyer v. Gossett, and we still think the only safe doctrine, that, whilst a wife may, against all the world, show that she never made any acknowledgment at all, and that the certificate is either a forgery or an entire fabrication of the officer, yet, if she has actually made some kind of acknowledgment before an officer qualified to take it, his certificate will be conclusive as to the terms of the acknowledgment, and the concomitant circumstances, in favor of all persons who, themselves innocent of fraud or of collusion to deceive or influence her, have taken the instrument on the face of the certificate. 38 Ark. 377.” See also Clifford v. Federal Bank & Trust Co., 179 Ark. 948, 19 S. W. (2d) 1026, where we held that, where there is an appearance before the officer and an acknowledgment of the instrument in some manner, the certificate of the officer is conclusive of every fact appearing in the certificate, and that evidence as to what transpired at the time the acknowledgment was taken and certified was inadmissible to impeach the certificate except for fraud -or imposition in obtaining the acknowledgment where notice of the fraud or imposition is brought home to the grantee.

We are therefore of the opinion that appellant’s mortgage was valid, and that the lien thereof is prior and paramount to that of appellee, Grant County Bank, on the land described in appellant’s mortgage. The decree will be accordingly reversed, and the cause remanded with directions to enter a decree of foreclosure in accordance with this opinion.


author: Butler, J.,

text:
    Union Central Life Insurance Co. v. Mendenhall.
    Opinion delivered January 26, 1931.

      Hunter $ Himter and D. K. Hawthorne, for appellant.

      Oliver S Oliver and E. L. Holloway, for appellee.
   Butler, J.,

(after stating the facts). The original premium card was the best evidence, and there was no proper foundation laid for the introduction of a copy. It- had no entries relating to any other policy or to any other business transaction; it was not affixed to any other record, but was a separate card which could be easily taken from the appellant’s files and conveniently brought into the court, and no reason is given why this was not done. The court correctly held the photostatic copy inadmissible. That it was a photograph and less liable to imperfectly depict the original than a copy transcribed ordinarily would, does not alter the general rule. 10 R. C. L., p. 910, § 65. One of the copies offered in evidence was of a letter written from the office of the general agent for Arkansas at Little Rock to the assured and appellee bank, mailed to the latter and explaining the check for $10.52 inclosed. This letter advised that the policy had been canceled for failure to pay the premium due April 20,1928, and that under the terms of the policy the earned dividend at the time of the cancellation was to be paid in cash to the assured, and, if the addressees did not want to continue the policy, to indorse and collect the check. The fact that the check was later indorsed by, and its proceeds paid to, the drawees made this letter highly important, but the copy was not identified. The witness only knew that a paper was in the files of appellant company in Cincinnati which purported to be a copy of a letter written by the State agent to the assured and the appellee bank; that agent was in little Rock and there was no reason given why he had not been called upon to identify it. Also, there was no proof offered that the adversary party had been called upon to produce the original and had refused or failed to do so, or that the copy offered was a “carbon copy” of the original.

Another copy offered was of a letter written by appellant company’s secretary, addressed to the assured at Rose Hill, Illinois, advising of the cancellation of the policy. Copies of other letters material to the defense of the appellant were offered and refused. All of these as to identification and notice to the adversary for production are on the same footing- as that first discussed. Therefore, the court properly refused to permit their introduction as identification and notice for the production of the originals was necessary to authorize the introduction of the copies. Jones v. Robinson., 11 Ark. 504; Heard v. Farmers Bank, 174 Ark. 194, 295 S. W. 38.

There were, however, two original documents taken from the files of the company and offered in evidence which were relevant to the issue and which were properly identified: the receipt for the premium of April 20, 1928, sent to the State agent for delivery to the assured on payment of the premium which was returned with the advice that the premium had not been paid, and the check for the dividend due on April 20, 1928, payable to the assured upon cancellation of the policy. These were competent and admissible under the showing made.

The witness Emerson testified that he had no supervision of the collection of premiums, but that the duty of issuing- the receipts appertained to the department over which he had supervision, and that he supervised the entries relating- to the cancellation of policies; that the receipt was issued and sent to the mailing* room by his direction, and he had knowledge of its return. He likewise testified that the dividend check was issued by his direction, and that he was able to identify both the returned receipt and the paid check. This evidence was admitted by the court, but at the close of the testimony, after submitting the issue to the jury, the court on its own motion gave instruction No. 3. It will be noted that this instruction did not point out any particular testimony relating to the records of the company which the jury was told was incompetent, nor by any saving clause exclude any of Emerson’s testimony from its inhibition, but in broad terms told the jury that “the testimony you have heard about the records of the company from their agent is excluded from your consideration because it is incompetent, and you owe it to the litigants to this lawsuit not to consider that testimony. You ought to treat it as if you had never heard it. ’ ’ This sweeping declaration, whether intended or not to include the original receipt and canceled check and the testimony of the witness relating to them, might, and perhaps did, have that meaning to the jury. This was error and prejudicial to the rights of appellant.

Counsel for the appellant earnestly insist that the verdict of the jury is unsupported by any substantial evidence, and urge that the court erred in not directing a verdict in its favor and ask for a dismissal of the case here. In support of its contention, it points out certain circumstances in connection with the testimony of the witnesses for appellee, which it insists makes that testimony run counter to human experience and common observation, and in the very nature of things that it cannot be true. As this case must be reversed for the error above indicated, we deem it unnecessary to allude to the circumstances which it is claimed refute and make incredible appellee’s testimony, or to comment upon the weight and sufficiency of the evidence considered in connection with attendant proved facts, as there may be additional evidence adduced by both the litigants in another trial.

The court erred in fixing the amount of attorney’s fee without a hearing given on the motion for same and without hearing evidence tending to establish the proper amount. The judgment in its entirety would not have been reversed for this error alone, but only as to the attorney’s fee.

For the error of the court below in its charge to the jury, the judgment is reversed, and the cause remanded for a new trial.

Kirby, J., dissents.


author: Butler, J.

text:
    Walsh v. Eubanks.
    Opinion delivered January 26, 1931.

      Hardin & Barton, for appellant.

      J. V. Walker and Karl Greenhaw, for appellee.
   Butler, J.

The appellee, Anton Eubanks, an employee of the appellants, Walsh & Thomas, a partnership, was severely injured in the collision of a truck in which he was riding with a Ford car at a curve in the highway between Brush Creek and Fayetteville in Washington County, Arkansas. The truck was driven by Robert Huckabee, who was also an employee of the appellant. To recover damages for this injury, suit was brought by the appellee against the appellant in the circuit court of said county. The complaint alleged in substance that the plaintiff and the 'truck driver were servants of the defendant, a partnership, and that, while in the performance of the master’s business, he suffered the injuries complained of, which injuries were the direct and proximate result of the negligence of the truck driver. A demurrer was filed to the complaint, and on its being overruled the defendant answered denying the material allegations of the complaint and pleading as a further defense contributory negligence, assumption of risk, and invoking the fellow-servant doctrine. The case is here properly on appeal from a verdict and judgment for the plaintiff in the court below for $3,000.

There is but little, if any, conflict in the testimony of the witnesses, and the following state of facts may be said to be established by the uncontradicted evidence. Walsh & Thomas were partners, and as such had a contract to build a structure composed of reinforced concrete, called in the testimony a “culvert,” across Brush Creek on a highway leading from the town of Fayetteville. They had hired a number of employees for that purpose, and engaged in the construction of said culvert. Mr. Walsh, who had general supervision of the business of the partnership, found it necessary to be absent from this particular job for a short time and to take with him the foreman. One Worth James, an employee, was left in charge of the work and was told by Mr. Walsh that a carload of cement was expected at Fayetteville, and that when he was notified by the truck driver of its arrival to take some of the laborers and unload the car into a warehouse, from which it was to be transported by truck to the Brush Creek job to be used in making concrete for the culvert. John Huckabee was one of the employees of Walsh & Thomas. His duties were varied. He “made forms” into which the concrete mixture was poured; he operated the “concrete mixer” and drove the truck and was thought by the appellant to be a suitable person to “■break in” a new truck. For some time before the accident he had been hauling material for use on the Brush Creek .job, and on the day of the accident he brought a load of cement to the point of work where it was unloaded by Huckabee and the other employees. He notified James that the car of cement expected had arrived at Fayetteville. The appellee was another employee of the appellant, and both he and Huckabee were hired by Mr. Walsh. How long he had been working for the partnership or just what specific things he had been doing were not directly shown, but his duties appeared to have been any kind of common labor necessary for the carrying on of the work. He had driven the truck for a while when Huckabee was sick, but had been for some time previous to his injury engaged in work at and upon the construction of the culvert.

When Huckabee arrived with his load of cement and gave notice of the arrival of the car, James selected three men besides himself, one of whom was the appellee, and returned on the truck to Fayetteville. These four, with Huckabee, were to unload the cement from the car, and the latter was to then haul it to where it was to be used in the culvert. Two of the men got in and remained in the body of the truck; Huckabee, the driver, took his position at the wheel; the appellee sat on the driver’s seat on the right-hand side, and James sat between the two. After the trip began, because of the lack of a windshield, James and the appellee drew their hats forward to protect their eyes and the appellee said to the driver, “Now, Huckabee, none of us are in a hurry — take your time.” Just how far the truck had proceeded on its way is not clear, nor is it material, but at a point about three miles from the job as the truck was entering upon a curve in the highway a Ford car, approaching from the opposite direction, appeared on the curve. The testimony of those who were in the truck, except that of the driver, (and there is no serious conflict between the testimony given by him and that of the others) was that at this time the truck was being driven at a high rate of speed, estimated at between forty and fifty miles per hour, and was keeping the center of the highway so that, although the Ford was on its right and proper side of the road, to avoid coming in contact with it, it was necessary for the truck to be at once and sharply turned to the right. In making this turn the truck was in danger of running down the embankment, and, after turning to the right to escape this consequence, the driver turned back toward the left and into the highway. The result was that the front part of the Ford and the rear of the truck collided, the latter being -overturned and the appellee and others riding therein seriously injured. The fault lay entirely with the truck driver, as it is the undisputed evidence that the driver of the Ford was driving at a moderate rate of speed and kept as far to the right as prudence allowed.

The sufficiency of the evidence to establish the negligence of the truck driver, the extent of appellee’s.injury and the amount of the verdict is not seriously questioned. The sole contention made here by the appellant is that the allegations. of the complaint fail to state a cause of action in that it complained of an injury inflicted by. a fellow-servant for whose negligent acts his master was not responsible; that, if this did not sufficiently appear from the complaint itself, the proved facts established that state of case. To support this view, counsel for the appellant have cited numerous decisions of this and other courts, while, to controvert this view, counsel for appellee have countered with an array of authority of equal dignity and support their interpretation of the cases cited with persuasive argument. However, the principle involved here which exempts the master for liability for an injury to a servant occasioned by the negligence of a fellow-servant has long been settled in this State, and is so clearly stated in our decisions which find support in the weight of authority, that as to it there can be, and is, no conflict of opinion. The reason for that rule and its definition finds no better expression than in the cases of St. L. A. & T. Ry. Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266, and Kenefick-Hammond Co. v. Rohr, 77 Ark. 290, 91 S. W. 179.

The doctrine enunciated in those cases has been adopted and followed by this court in a number of decisions, and in the Triplett case is thus stated: “The true reason on which the rule is based, as shown by the great weight of authority, is that a person who voluntarily engages in the service of another presumably assumes all the risks ordinarily incident to that service, and fixes his compensation with a view to such risks. (Citing cases.)

“If this be the principle underlying the rule, it would seem that the question which forms a test in any case is one of risks. And that where one servant is shown to have been injured by another, the question is, not whether the two servants were fellow-servants in any technical sense of the term, but whether the injury was within the risk ordinarily incident to the service undertaken. ‘The negligence of a fellow-workman engaged upon a common work is commonly accounted among the risks undertaken, but is only a subordinate instance.’ Lawler v. Androscoggin R. Co., 16 Am. Rep. 498.

“ ‘A fellow-servant,’ says the court in McAndrews v. Burns, 39 N. J. L. 117, ‘is any one who serves and is controlled by the same master. Common employment is service of such kind that, in the exercise of ordinary sagacity, all who engage in it may be able to forsee, when accepting it, that through the carelessness of fellow-servants it may probably expose them to injury.’ ”

And in the case of Kenefick-Hammond Co. v. Rohr, supra, after quoting with approval the rule announced in Ry. Co. v. Triplett, supra, it is said: “Persons employed by the same master to accomplish one common object and so related in their labors performed in the service of the master as ordinarily to be exposed to injuries caused by each other’s negligence are fellow-servants.” Among the cases approving, illustrating and applying the rule are Fones v. Phillips, 39 Ark. 17, 43 Am. Rep. 264; St. L. S. W. Ry. Co. v. Henson, 61 Ark. 302, 32 S. W. 1079; St. Louis I. M. & S. Ry. Co. v. Brown, 67 Ark. 295, 54 S. W. 865; Snellen v. Kansas City So. Ry. Co., 82 Ark. 334, 102 S. W. 193; Texarkana Tel. Co. v. Pemberton, 86 Ark. 329, 334, 11 S. W. 257; St. L. I. M. & S. R. Co. v. Gaines, 46 Ark. 455; Graham v. Thrall, 95 Ark. 560, 129 S. W. 532; Hollingshead v. American Ry. Exp. Co., 143 Ark. 422, 220 S. W. 462; Sun Oil Co. v. Hedge, 173 Ark. 730, 293 S. W. 9.

These cases cite many others from other jurisdictions, and it appears that with slight variations the definition stated finds almost universal approval. While this is true, great difficulty arises in applying it to the infinite variety of circumstances which surround particular cases presented to the courts for adjudication. This is strikingly illustrated in the ease at bar where learned counsel for the respective litigants each cite to support their divergent views the' same cases.

Here the appellee contends, first, that the negligence was that of a vice-priucipal, in that the driver of the truck was performing a nondelegable duty of the master and was therefore a vice-principal. It is very true that there are duties which the master owes the servant which he cannot delegate to a fellow-servant and by this means relieve himself from the negligence of the servant in the performance of that act, such as the furnishing of a safe place in which to work, or in the selection of one’s fellow-servants, and the like; but we are unable to find any evidence which would indicate that any such duties were delegated to Huckabee. As we read this record he was simply an ordinary laborer in the employ of Walsh & Thomas and aside from his work the only duty he was called on to perform was to convey the information to the workers at'the culvert of the arrival of the car of cement.

It is, secondly, insisted that appellee, while having a common master with Huckabee and in a general sense his fellow-servant, was not engaged in a common enterprise with him or in work having such connection with that performed by Huckabee as would include in the risk ordinarily incident to that work the negligence of the latter. Appellee insists that, as he was engaged in various duties at the culvert prior to his injury and Huckabee was at that time hauling by truck the material which he and others would afterward use by converting it into concrete, they were so removed in the performance of their duties from each other that' there was and could have been no risk reasonably anticipated to the one through the negligence of the other, and therefore, in accepting the employment, appellee could not be held to the assumption of risk from the possible negligence of Huckabee. The fallacy of this argument appears when the entire testimony relating to the employment is considered. Both employees were common laborers, and, while for some length of time before the injury appellee’s duties were restricted to work at the culvert and that of 'Huekabee to transporting material from points away from the culvert to it, neither was employed solely for these purposes, but each was to and did perform such other common tasks as they were bidden and at whatever place necessary to carry into effect the common purpose for which they were employed and in which they were both engaged, namely, the construction of a culvert of reinforced concrete across a certain watercourse in Washington County. These facts bring the relationship of appellee and Huckabee within the meaning of the rule and constitute the latter a fellow-servant of the appellee whose negligence was one of the ordinary risks of the employment, and for which the master is not bound.

Under this view of the case the other questions raised become unimportant. The judgment of the court must therefore be reversed, and the case dismissed. It is so ordered.


author: Hart, C. J.

text:
    Metzger v. Mann.
    Opinion delivered February 2, 1931.

      B. W. Robins, for petitioner.

      Bonham S Fulh, for respondent.
   Hart, C. J.

J. A. Metzger filed in this court an application for a writ of prohibition against Richard M. Mann, Judge of the Second Division of the Circuit Court of Pulasld County, Arkansas, to prohibit said circuit court from assuming jurisdiction in a suit brought against the petitioner by the People’s Trust Company.

The record shows that the People’s Trust Company brought suit in said circuit court against Walter M. Terry, Teresa Terry, and John A. Metzger to. recover $3,000 and the accrued interest thereon, alleged to be due on a promissory note dated April 2, 1930, and due ninety days after date. The suit was filed, and summons issued on September 27, 1930. The summons was issued to the sheriff of Faulkner County, commanding him to summons Walter M. Terry, Teresa Terry, and John A. Metzger, to answer a complaint filed against them in said circuit court by People’s Trust Company. On the 27th day of September, 1930, Walter M. Terry and Teresa Terry filed in said circuit court a waiver of summons and general entry of their appearance in said action. On the 10th day of October, 1930, John A. Metzger appeared for the purpose of filing a motion to quash service of summons against him. In said motion he alleged that Walter M. Terry and Teresa Terry are and have been for more than one year residents of the State of Oklahoma, and that neither one of them has been in the State of Arkansas at any time during the past year. He alleged further that neither of said defendants were in Pulaski County, Arkansas, at the date of the institution of the suit, and that they have not been here at any time since. The motion to quash service was duly verified by John A. Metzger. The circuit court overruled said motion, and J. A. Metzger saved his exceptions thereto.

Richard M. Mann, as judge of the Second Division of the Circuit Court of Pulaski County, Arkansas, entered his appearance to the application of said John A. Metzger for a writ of prohibition herein. According to the allegations of the complaint in the circuit court, both the Terrys and John A. Metzger were .jointly liable on the promissory note sued on, and the action was a transitory one. Under § 1178 of 'Crawford & Moses * Digest, service cannot be had in a transitory action on a defendant in a county other than that of his residence except where there is service in the county where the action is instituted on a co-defendant who is jointly liable. Lingo v. Swicord, 150 Ark. 384, 234 S. W. 264.

Under the section of the Digest above referred to, actions of this sort may be brought in any county in which the defendant or one of several defendants resides or is summoned. Under the plain terms of the statute, Metzger, who, the record shows, is a resident of Faulkner County, could not be sued on the promissory note in question in Pulaski County unless the record also shows that Walter M. Terry and Teresa Terry resided or were summoned in Pulaski County. The record not only does not contain an affirmative showing that Walter M. Terry or Teresa Terry resided or were summoned in Pulaski County, but it contains a distinct averment that they were residents of the .State of Oklahoma at the time of the institution of the suit, and that they were not in Arkansas at the time they entered their appearance to the action, and have not been in the State of Arkansas for more than one year last past. The right of Metzger to be sued in his own county is given by statute, and cannot be taken away except by bringing him within one of the exceptions to the statute. The fact that the Terrys may have entered their general appearance to the action and submitted themselves to the jurisdiction of the court would not affect the right of Metzger to assert his right under the statute. Chamberlain v. Carroll (Tex.), 59 S. W. 624; Lasater v. Waits, 95 Tex. 553, 68 S. W. 498; and Jacobson v. Hosmer, 76 Mich. 234, 42 N. W. 1110.

The right of a defendant to be sued in the county of his residence in the absence of statutory exceptions has been recognized by tbis court. Wernimont v. State, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156; Seelbinder v. Witherspoon, 124 Ark. 331, 187 S. W. 325; Hoyt v. Ross, 144 Ark. 473, 222 S. W. 705; Lingo v. Swicord, 150 Ark. 384, 234 S. W. 264.

. But, it is insisted tbat, even if tbe construction we have placed upon the statute is correct, a writ of prohibition would not lie, but that appeal is the proper remedy. We do not agree with this contention. It is true that this court has held that a writ of prohibition should not be granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done him by such usurpation. It is also well settled that where no adequate remedy can be had in the court where the original suit is pending and the record in the case shows that the court is about to exercise judicial power over persons who have never been served with process and over whom no service of process can be legally had, prohibition is the proper remedy. Order of Railway Conductors of America v. Bandy, 177 Ark. 694. 8 S. W. (2d) 148; and Merchants’ & Planters’ Bank, v. Hammock, 178 Ark. 746, 12 S. W. (2d) 121.

Tested by this rule, it will be seen that the record shows that the Terrys were not residents of the State of Arkansas and were not summoned in Pulaski County, Arkansas, in the case in the circuit court. Metzger was a resident of Faulkner County, and no legal service could be had on him because he absolutely refused to enter his appearance to the action, and neither of his co-defendants resided in Pulaski County where the action was instituted nor were they summoned in that county. Metzger, under these circumstances, did not have an adequate remedy at law. If he had appealed to this court from a judgment of the circuit court refusing* to cfnash the summons against him, according to the rule of practice established in this court from the beginning, he must, upon a remand of the case to the circuit court, be considered as having entered Ms general appearance to the action in like manner as if he had ¡been duly and legally served with process to appear at the term in which the ease is returned. Gilbreath v. Kuykendall, 1 Ark. 50; Murphy v. Williams, 1 Ark. 376; Beal-Doyle Dry Goods Company v. Odd Fellows Building Company, 109 Ark. 77, 158 S. W. 955; and Order of Railway Conductors of America v. Bandy, 177 Ark. 694, 8 S. W. (2d) 448.

It is true that the waiver of the service of summons by the T'errys and their general entry of appearance to the action in the Pulaski Circuit 'Court gave the court jurisdiction over them, but this did not preclude Metzger, their codefendant, from asserting his right to be sued in the county of his residence, in the absence of statutory exceptions. Devereaux v. Rowe (Tex. Civ. App.) 293 S. W. 217.

It follows from the view we have expressed that Metzger had no adequate remedy, and that the writ of prohibition should be granted. It is so ordered.


author: Smith, J.

text:
    Shields v. Shields.
    Opinion delivered February 2, 1931.

      Mark P. Olney, for appellant.

      Minor Pipkin, for appellee.
   Smith, J.

M. M. Shields, who died on or about January 1, 1928, wat survived by his widow, but no children, and by'a brother and three sisters. The widow waived the right to administer on the estate, and letters were issued to C. R. Shields, the brother of the intestate. An inventory was made of the personal property, which consisted principally of promissory notes payable to the order of the intestate, the total value of the personal property being about $20,000.

The administrator filed a first settlement of his administration on February 15, 1929, and a final settlement on the 17th of August of the same year. The estate was solvent, and owed only a few small debts, which had been paid.

The final settlement showed that under date of July, 1929, the administrator had assigned to the widow, as part of her dower, 29 notes of the value of $2,103.92, and that he had sold the widow certain bank stock owned by her husband, the intestate, for $2,651.33, and for which amount he had taken the widow’s notes. These notes he charged to her as a part of her dower. The administrator’s final settlement undertook to state the balance due the widow as dower after the sums paid her on that account had been credited to him and charged to her. Both these settlements were duly approved by the probate court.

Thereafter, on March 10, 1930, the widow filed a complaint in the chancery court, to «which the administrator and heirs were made parties, in which she prayed that dower be assigned her in the personal estate of her deceased husband. She had previously filed a complaint in the chancery court for the assignment of her dower in the real estate, arid dower therein had been assigned.

There was no allegation of fraud in the administrator’s settlements, and the court made no finding that there had been any fraud on the part of the administrator, but the court did find that, owing to the conversion of much of the personal property into cash, dower could not be assigned in kind, and the court proceeded to assign the dower in the personal property and money, and from that decree is this appeal.

We think, under the facts of this case, that the chancery court should not have attempted to assign the dower in the personal property.

The chancery court had already assigned the dower in the real estate, without being asked to assign dower in the personalty. The administrator had, under the directions of the probate court, begun somewhat informally to assign the dower in the personalty.

The statute (§ 3547, C. & M. Digest), provides that, if dower be not assigned to the widow within one year after the death of her husband, or within three months after demand made therefor, she may file a petition in the probate court praying the allotment of dower, and the probate court is given the jurisdiction to assign it.

We held in the case of Johnson v. Johnson, 84 Ark. 307, 105 S. W. 869, that this statutory remedy did not oust the jurisdiction of equity to assign dower, and we held in the case of Beal-Burrow Dry Goods Co. v. Kessinger, 132 Ark. 132, 200 S. W. 1002, that the chancery courts have concurrent jurisdiction to assign dower in personalty. The jurisdiction of the 'probate and the chancery courts in the assignment of dower in both real estate and personalty is therefore concurrent, and the case before us is one where the jurisdiction of the chancery court was invoked to assign dower in the real estate, but not in the personal estate, whereas the .administrator had made a partial assignment of dower, which action he had reported to the probate court. The money given and paid the widow by the administrator constituted a partial assignment of dower, and the probate court approved the report thereof. This was an assumption of .jurisdiction by the probate court to assign dower in the personalty, and after jurisdiction had been assumed by the probate court for this purpose the chancery court should not have interfered, as the jurisdiction of the two courts was concurrent, and the jurisdiction of the probate court had first been invoked in regard to the personalty. Phillips v. Phillips, 143 Ark. 240, 220 S. W. 52; State v. Devers, 34 Ark. 188.

The decree of the chancery court will therefore be reversed, and the cause remanded with directions to dismiss the complaint, and remit the parties to their remedies in the probate court.


text:
    American Benefit Life Insurance Association v. Armstrong.
    Opinion delivered February 2, 1931.

      Frank Berry, for appellant.

      W. B. Scott, for appellee.
   Smith, J.

Irenner Armstrong made application to a soliciting agent of the appellant insurance association for a policy of insurance, in which she was named as beneficiary, upon the life of Katie Young, her mother. The policy issued, and insured died, and liability under the policy was denied upon the ground that the issuance of the policy had been procured by the false answers of the applicant for the’ insurance concerning the health of her mother. The falsity of certain answers is admitted, but the applicant testified that her answers to all questions asked her were truthful, and that the answers as written were not read to her, and that she did not read them, as she was unable to read, and that while her name was signed to the application she had only “touched the pen,” as she was unable to write.

The issue thus presented was Submitted to the jury under instructions conforming to the law as announced in the case of Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792, to the effect that, where the agent of the insurer makes out the application incorrectly, notwithstanding the applicant has stated all the facts correctly, the errors will be chargeable to the insurer and not to the insured.

But the court also gave, over the objection and exception of the defendant insurance association, an instruction reading as follows:

“There is some proof here, gentlemen of the jury, that this application was never shown to the insured, Katie Young, at all. You are told, that the agent has a right, if he wanted to, not to take the application to the insured at all, although his company may have required him to do that thing. Nevertheless, if he failed to do it, and sent it in as if he had shown it to the insured, that would be a deception on his part of his own company, and the company couldn’t come here now and complain of it. They would be bound by the action of the agent; and, if you find from the proof in this case that the application was never presented to the insured at all, and that she never answered any question in the application, and none was ever asked her at all, then there could be no false answers on her part, and, consequently, there could be no fraud. The agent may have disobeyed instructions he had from his principal insurance company, but nevertheless he was agent of the company, and the company would be bound by his conduct, and his failure to give it to the .insurance company could not be used against her for the simple reason she never was called upon to act in regard to the application in any way whatever. ’ ’

This instruction virtually directed a verdict for the plaintiff, as it was undisputed that the application was made by the plaintiff beneficiary and ostensibly signed by her, and not the insured, and that the insured, herself, did not make the application, and made none of the answers alleged to be false, and the instruction says, if this is true, there could be no fraud.

It must Tbe remembered that the plaintiff beneficiary made tbe application for this policy, and paid tbe premium tbereon, and that it was issued upon ber application. If she bad no authority to make this application, tbe policy would be void on that account. This is a very elementary principle, not only in tbe law of insurance, but in tbe law of agency generally, and, if she bad this authority, it would be immaterial that ber principal, tbe insured, “never was called upon to act in regard tó tbe application in any way whatever,” for the reason that tbe principal bad acted through her agent.

It is not tbe law that one, even though a daughter, may apply for insurance, upon tbe life of another, ber mother, and make false answers and obtain tbe insurance, whereas, if truthful answers bad been given, tbe policy would not have been issued, and still recover upon tbe policy so obtained because the mother, the insured, was not a party to tbe deception.

We must therefore bold tbe instruction to be erroneous, and for tbe error indicated tbe judgment will be reversed, and tbe cause remanded for a new trial.