text:
    St. Louis Southwestern Railway Company v. Harrell.
    Opinion delivered February 18, 1924.
    1. Master and servant — federal employers’ liability act— assumed risk. — In an action seeking recovery under the Federal Employers’ Liability Act, it was error to instruct the jury that the plaintiff did not assume the risk of being injured by the negligence of fellow-servants.
    2. Trial — conflicting instructions. — The giving of erroneous instructions was not cured by giving a correct instruction ■ upon the same subject, as the jury may not have followed the correct ■statement of the law.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    reversed.

      John R. Tv/rney and Lamb & Frierson, for appellant.
    1. Instruction No. 1 entirely ignores the questions of assumed risk and contributory negligence, and the latter part thereof assumes negligence on the part of the defendant in placing the skids. It is practically a peremptory instruction to find for the plaintiff. Conceding that other instructions were given submitting the questions of assumed risk and contributory negligence, the best that can he said of the situation is that they are conflicting. 83 Ark. 202; 140 Ark. 162; 143 Ark. 122; 144 Ark. 454; 146 Ark. 208; 70 Ark. 79.

      2. The same error appears-in instruction No. 4. Even though the defendant was careless in placing the skids, it was entitled, in view of the fact that plaintiff was an old and experienced employee, to have submitted to the jury the question of his assumption of risk, if they ' found that defendant was negligent in that respect. 58 Ark. 216; 233 U. S. 492.

      Emerson <& Donham and Bogle & Sharp, for appellee.
    1. Instruction No. 1 only states an elementary principle of law. In cases presenting a similar state of facts, the question of negligence has been uniformly held a question of fact that must be submitted to the jury. 95 Ark. 291; 116 Ark. 277; 123 Ark. 119. It is admitted that all questions of law applicable to the facts were given. It can make no difference that separate instructions were given to cover these questions, since all of them were to be considered together. 105 Ark. 358; 28 Ark. 8; 34 Ark. 383; 46 Ark. 141; 43 Ark. 184.
    2. Instruction No. 4 was not erroneous in telling the jury that appellee assumed all ordinary risks and hazards incident to his work, but did not assume any negligence on the part of the master or of his fellow-servants. 95 Ark. 291; 67 Ark. 209; 77 Ark. 367; 90 Ark. 226; 89 Ark. 427; 90 Ark. 556; 92 Ark. 102; Labatt on Master and Servant, § 279. See also as to the duties of the master, 123 Ark. 119; 104 Ark. 1; 93 Ark. 564; 97 Ark. 553; 105 Ark. 392; 116 Ark. 277.
   Smith, J.

Appellee, the plaintiff below, was employed by the appellant railroad company on March 14, 1922, on which day he was engaged in unloading stringers, which were to be used in repairing a bridge across the White River near Clarendon, and, while so engaged, he sustained serious injuries, and he instituted this suit under the Federal Employers’ Liability Act to recover damages to compensate the injury. He recovered a judgment, after a trial before the jury, to reverse which this appeal has been prosecuted.

We make no extended statement of the testimony, as the theory upon which a recovery was asked sufficiently appears in the instructions which we will set out and in our discussion thereof.

Over the objections of the appellant the court gave an instruction numbered 1, -which reads as follows: “1. You are instructed' that, if you find from the evidence in this cause that plaintiff was employed by defendant to assist in repairing its bridge over White River, in Monroe County, Arkansas, and, while in the discharge of his duties as such employee, was unloading timbers from one of defendant’s flat-cars by dropping same upon skids placed against said car, and further find that other of defendant’s employees negligently and carelessly placed one of said skids against the timbers on said car in such a negligent and careless manner as to cause the ^ end of one of said timbers to strike plaintiff, while he was in the exercise of due caution for his own safety, then you should find for the plaintiff.”

An instruction numbered 2 dealt with the measure of damages, and instruction numbered 3 with that of contributory negligence, and correctly told the jury that, if plaintiff was guilty of negligence which contributed to his injury, his damages should be diminished in proportion to the amount of negligence attributed to him.

Instruction numbered 4, which was .also given over the objections of appellant, reads as follows: “4. Defendant has interposed, as a defense herein, that plaintiff assumed the risk of the injury which he received, and you are.instructed that while, as a matter of law, plaintiff assumed all risks of iniury ordinarily incident to the duties he was performing for defendant as its employee, you are further instructed that he did not assume the risk of being injured by negligence of other employees of defendant, and, if you find that his injuries were due to the negligence of other employees, you should not find for defendant upon the ground of assumed risk.”

It will be observed that instruction numbered 1 undertook to define the conditions under which the plaintiff might recover, and directed tlie jury to find for the plaintiff, if there was a finding (1) that an employee of the railroad company, other than appellant himself, had negligently and carelessly placed one of the skids against the timbers on the car in such a negligent and careless manner as to cause the ends of one of said timbers to strike the plaintiff (2) while the plaintiff was in the exercise of due caution for his own safety.

In other words, this instruction told the jury to find for the plaintiff if his fellow-servants were negligent, and he was not. The defense of assumption of risk, which the railroad company interposed, was thus eliminated.

This error was emphasized by the 4th instruction, which dealt with that subject. It was the theory of the company that plaintiff was an old and experienced bridge man, and that he had assisted in loading and unloading many carloads of stringers at the bridge where he was injured and at other bridges, and that he knew when skids had been properly placed to unload stringers, and that, if the skids in question were improperly placed, he was aware of' that fact, and appreciated the danger thereof, yet pursued his employment, after knowing that his fellow-servants had, by their negligence in placing the skids, increased the risk of injury to himself.

The testimony on the part of the plaintiff was to the effect that he was unaware of the negligence of his fellow-servants in placing the skids, and that he did not therefore assume that risk; but there was sufficient conflict in the testimony on this issue to carry it to the jury.

Instruction numbered 4, set. out above, told the jury, as an affirmative proposition, that plaintiff did not assume the risk of being injured1 by the negligence of other employees, and that, if his injuries were due to their negligence, the jury should not find for the defendant upon the ground of assumed risk.

It thus appears from instructions 1 and 4, given at the request of the plaintiff, over the objection of the defendant, that the plaintiff’s right to recover, if it otherwise existed, was not to be defeated, upon the theory that he had assumed the risk of injury arising out of the negligence of another employee.

We think the giving of these instructions was error which requires the reversal of the judgment. The recent case of St. L. S. F. R. Co. v. Blevins, 160 Ark. 362, was one in which an employee was injured while unloading piling from a car at a bridge, and1 the court gave an instruction embodying the thought expressed in instruction numbered 4, set out above, and reading as follows: “If you find that plaintiff was injured while in the performance of his regular duties, and you further find that his injury was caused or contributed to by the negligence of his fellow-employees, you are instructed that he did not assume the risk arising out of the negligence of his fellow-emplovees.” We said the instruction took away the defense of assumed risk, and that such was not the law as declared in the Federal Employers’ Liability Act, as that defense had not been abrogated except “in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

In that case, as in this, the charge of negligence was not based upon any violation of any statute enacted for the safety of employees, but the charge was based upon the principles of the common law in regard to negligence. Following the construction of this statute in the decisions of the Supreme Court of the United States there cited and quoted from, we held that a servant might assume the risk of negligence of a fellow-servant if he was aware of this negligence and appreciated the danger thereof, and, with such knowledge and appreciation of danger, continued to discharge the duties of his employment.

We reversed the judgment in the plaintiff’s favor in that case, because, as we said, the jury might have found, had the auestion been submitted, that the plaintiff was fnvare of his fellow-sérvant’s negligence and appreciated the danger arising' therefrom, but proceeded with his work notwithstanding. So here, if the testimony on behalf of the company is accepted, the jury might find that appellant knew of the negligence of his fellow-servant complained of, and appreciated the danger therefrom, but proceeded with his work notwithstanding. We deem it unnecessary to review again the decisions there cited and quoted from.

It is said that instructions F and Gt, given at the request of the defendant, submitted this question properly to the jury, and that the giving of these instructions cured the error of instructions 1 and 4. We do not think so. As much as can be said of instructions F and G is that they are in conflict with instructions numbered 1 and 4, and may not have been followed by the jury as correct statements of the law. Anglin v. Marr Canning Co., 152 Ark. 1.

Error is assigned in the refusal of the court to give instructions 'C..and D at the request of the defendant, which also dealt with the question of assumed risk. But we think instructions F and G, which were given, declared the law applicable to that issue with sufficient fulness and more accurately than instructions O and D, and no error was committed in refusing to give them.

For the error indicated in instructions 1 and 4 the judgment must be reversed, and the cause will be remanded for a new trial.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Fort Smith, Subiaco & Rock Island Railroad Company v. Roady.
    Opinion delivered February 18, 1924.
    Carriers — tender of livestock for shipment. — Where, after a shipper in a certain county on October 26, requested a car for an interstate shipment of cattle, the Federal inspector issuqd • an order including' the county in a quarantine district, Which prevented the cattle from being shipped from the county after October 31, it was the shipper’s duty to have his cattle inspected, and their condition for shipment certified by a proper official before he could tender them for shipment, and that must have been done in time to have them hauled out of the county before the quarantine order took effect; and where he failed to do so, the carrier could not be liable on the theory that the car was not furnished within six days after notification, under Crawford & Moses’ Dig., § 895.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    reversed.

      E. II. McCulloch and J. B. McDonough, for appellant.
    Appellee failed to have his cattle inspected, and it would have been unlawful for appellant to have accepted them for transportation. Act Congress, March 4, 1913, amending act March 3,1905; 37 TJ- S. Stat. at Large, 828; 188 Fed. 191; 222 U. S. 8; 139 U. S. 278. There must be a proper tender of the shipment before there can be any liability. 84 Arle. 150. As long as there remains something to be clone by the shipper, the liability of the carrier does not begin. 1 Hutchinson on Carriers, p. 288; 42 Ark. 200;' 60 Ark. 33; 69 Ark. 150. Appellee was lawfully compelled to he present with his stock at the place of shipment on or before the time when the last train would leave. 144 Ark. 11; 77 Ark. 357.
    No brief for appellee.
   Humphreys, J.

This is a suit by appellee against appellant, a common carrier, for damages in the sum of $660 on account of the alleged failure to furnish a cattle-car at New Blaine within six days after being notified, in writing, to do so, in which to make an interstate shipment of cattle.

Appellant filed an answer to the complaint, interposing the defenses, first, that the order was canceled by appellee, and second, that appellee failed to make a tender of his cattle for shipment in the manner required by law.

The cause was submitted upon the pleadings, testimony and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee, from which is this appeal.

The notice was given pursuant to the provisions of § 895 of Crawford & Moses5 Digest, and is as follows:

“Blaine, Arkansas, Oct. 26, ’22.
“Joseph A. Clark, Agent:
“You will please order me a thirty-six foot stock car at once, and oblige, Otto Roady.”

Joseph A. Clark was the agent of the appellant at New Blaine. Appellant was operating a railroad between Ola, in Yell County, and Paris, in Logan County. The order was received and filed by the agent. He at once requested the proper official to furnish the car, and an effort was made to procure one from appellant’s connecting carrier at Paris, the Missouri Pacific Railroad Company, without success. Owing.to the fact that the government was about to place Logan County within the quarantine district because the quorum court had failed to appropriate money to assist in the -eradication of cattle ticks, there was a great rush for cars. On account of the scarcity of cars on the Missouri Pacific line, which was the most direct route for shipping cattle to Kansas City, appellant made arrangement with its connecting-carrier at Ola, the Rock Island, which would not benefit by the haul, to borrow a car to haul appellee’s cattle. Appellee was notified that appellant could1 furnish him a car on the morning of October '31st if he could arrange to have his cattle inspected, and obtain an order for shipment from a Federal inspector in time to get the car out of Logan County by midnight on October 31st. After appellee made an order for a car, the Federal inspector issued an order incorporating Logan County within the quarantine, which prevented cattle from being shipped out after midnight on October 31st. Appellee, immediately upon receipt of the notice that the car could be furnished if an inspection could be- obtained, attempted to communicate with the Federal inspector, and, during the morning, got in touch with Dr. D. Richardson, who was assisting D. F. McCarty, the. Federal inspector, in inspecting cattle for shipment. Dr. Richardson agreed to inspect the cattle, but could not do so until four or five o’clock p. m. He did not do so, as that hour would be too late for the car to be picked up by appellant’s last train to Paris which connected with the 1:50 p. m. train of the Missouri Pacific to Kansas City. This was the last train that day, on said line, which could haul the cattle-car out of Logan County before midnight. The testimony is in conflict as to whether appellee canceled the order for the car after ascertaining’ that Dr. Richardson could not inspect the cattle before four or five o ’clock that afternoon. The superintendent of appellant-company took the matter up with the Federal inspector at Little Rock, and asked permission to receive the cattle after inspection by the local inspector and certification 'that they were free from disease, and to ship them out the following* day, November 1. The inspector refused to grant the request of-the superintendent.

The court, in substance, declared the law to be that > appellant could not have legally received the cattle for shipment without inspection and a certificate that they were clean, or free from ticks; also that appellant could ■ not be made to respond in damages if .appellee was prevented from shipping the cattle on account of his failure to get them inspected, or in case he canceled the order; but that he could recover such damages as he sustained if he was prevented from shipping them because appellant failecl to furnish a car. Appellant requested the trial court to instruct a verdict in his favor, claiming* that the undisputed testimony showed that appellee was prevented from shipping* the cattle because he failed to obtain the required inspection and a certificate for shipment from the Federal inspector or his representative. The court refused to peremptorily instruct the jury, over the objection and exception of .appellant. The exception was properly preserved, and appellant now insists that the court committed reversible error in sending the case to the jury. We think appellant’s interpretation of the testimony is correct. It was the duty of the appellee to have his cattle inspected and their condition for shipment certified by the proper official before he could tender them to appellant for shipment, -and this must have been done in time to have hauled them out of Logan County before the quarantine order took effect. According to the undisputed evidence, he failed to do this. The tidal court should have instructed a verdict for appellant. On account of the refusal to do so, the judgment is reversed and the cause is dismissed.


text:
    Dixon v. State.
    Opinion delivered February 18, 1924.
    1. Homicide — indictment—allegation of intent. — An indictment charging that accused “unlawfully, wilfully and feloniously and with malice aforethought, after deliberation and with premeditation, did kill and murder,” etc., sufficiently charges the intent to kill to sustain a conviction for assault with intent to kill.
    2. Homicide- — assault with intent to kill — evidence.—Evidence held to sustain conviction of assault with intent to kill.
    3. Criminal law — arguments of counsel. — In a prosecution for murder, arguments of counsel that “there is not a man in M. county, including myself, and', if I may be permitted, including the judge himself, that will not swear a lie to keep himself out of the penitentiary,” and that “if B. S., the deceased, were here, he could tell a different story to the one told by the defendant,” though improper, were not reversible error, since they were mere . expressions of opinion.
    4. Criminal law — argument of counsel — -exception.—Argument of counsel will not be considered on appeal in the absence of ■exception thereto.
    5. Criminal law — exclusion of evidence — prejudice.—In a prosecution for murder, refusal to permit defendant to ask a State’s witness whether she had not had a baby born to her recently, held not to present error on appeal, where defendant failed to ' show that witness would have answered in the affirmative and did not offer proof that the child was born out of wedlock, as affecting the witness’ credibility.
    Appeal from Madison Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Combs é Combs, for appellant:

      J. 8. Utley, Attorney General, John L. Garter, Wm. T. Hammock, Darden Moose and J. 8. Abercrombie, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, jointly with his brother, by the grand jury of Madison County, of the crime of murder in the first degree for killing Bob Stepp, on the 7th day of September, 1921. The .indictment, omitting formal parts, is as follows: “The said Otto Dixon and Roscoe Dixon, in the county of Madison, in the State of Arkansas, on the 7th day of September, 1921, while acting together with a common purpose and design, unlawfully, wilfully and feloniously, and with malice aforethought, after deliberation and with premeditation, did kill and murder one Bob Stepp, by cutting him on the body of him, the said Bob Stepp, with a knife held in the hands of him the said Otto Dixon, and by shooting him on the head and body of him the said Bob Stepp, with a pistol loaded with gunpowder and leaden bullets, and then and there held in the hands of him the said Roscoe Dixon, from the effects of wounds so inflicted’ he, the said Bob Stepp, died on the 8th day of September, 1921, against the peace and dignity of-the State of Arkansas.” At a subsequent term of court the appellant was separately tried under the indictment and convicted of assault with intent to kill, from which judgment he has duly prosecuted an appeal to this court.

The first assignment of error insisted upon by appellant for a reversal of the judgment is that the intent to-kill was not charged in specific terms, and that, for this reason, the crime of assault with intent to kill was not embraced within the indictment under which he was tried and convicted. Appellant was charged in the indictment with “unlawfully, wilfully and feloniously and with malice aforethought, after deliberation and with premeditation, killing Bob Stepp with a knife held in his hands.” This language, in effect, charges an intent to kill by an unlawful assault. Malice aforethought, deliberation and premeditation to kill necessarily mean an intent to kill. So a proper charge for murder in the first degree includes- all the elements constituting the crime of assault with intent to kill. Davis v. State, 45 Ark. 464.

The next assignment of error insisted upon by appellant for reversal is that no substantial evidence was introduced tending to show that,, at the time of. the assault, appellant had in his mind the specific intent to take the life of Bob Stepp. This claim is based upon the fact that Stepp was killed by gunshots fired by Roscoe Dixon, during the fight between appellant and Stepp, and not by wounds inflicted by appellant with his knife. An unsuccessful attempt to kill another by assaulting him with a deadly weapon makes it none the less an assault to kill within the meaning of the law. The gist of the offense is the intent with which the assault is made. The intent is arrived at by the character of weapon used, the manner of using it, and all the facts and circumstances connected with the assault. In the case at bar the testimony introduced by the State showed that the appellant was the aggressor in the fight between him and Bob Stepp, which occurred at a dance at Clifty; that- appellant assaulted Stepp with a knife by striking him in the back, .and cutting'his coat in two places and his body in one; that Bob Stepp reached down, procured a stave, with which he struck appellant, whereupon .Roscoe Dixon, -a brother of appellant, fired five shots into Stepp’s body, which resulted in his death. In short, testimony introduced by the State tended to prove every element necessary to sustain the charg*e of murder in the first degree against appellant, had death resulted from the assault made by him upon Stepp with his knife. The evidence was therefore sufficient to support the verdict and judgment for assault with intent to kill.

Appellant next assigns -as reversible error certain statements made by the prosecuting attorney in his closing argument. The statements are as follows:

1. ‘ ‘ There is not a man in Madison County, including myself, and, if I may be permitted, including the judge himself, that will not swear a lie to keep liimself out of the penitentiary.”
2. “If Bob Stepp, the deceased, was here he could tell a different sto.ry to the one told by the defendant.”
3. “In order for one to be the aggressor in a difficulty lie must strike the first blow. ’ ’

While these statements were improper, the first one was ruled out by the court, and, in addition, was a mere matter of opinion. The second statement was also the expression of an opinion. For these reasons they did not constitute reversible error. Butt v. State, 81 Ark. 173; Bowen v. State, 100 Ark. 232. No exception was saved to the third statement, so it cannot be considered on appeal.

The next and last assignment of error insisted upon by appellant for reversal was the refusal of the trial court to permit appellant to ask the State’s witness, Cora Stepp, if she had not had a baby born to her recently. This was a proper question, affecting the credibility of the witness, but appellant is not in position to take advantage of the court’s refusal to permit it to be answered. No showing was made by appellant that she would have answered the question in the affirmative had she been permitted to do so. Appellant should have stated to the court that, if permitted to answer, he would prove that she had given birth to a child out of wedlock.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    American Railway Express Company v. Bald Knob Fruit Exchange.
    Opinion delivered February 25, 1924.
    1. Carriers — duty to provide transportation facilities. — A carrier is bound to make reasonable effort to provide instrumentalities for accommodating- the business of the localities which it assumes to serve.
    2. Carriers — failure to furnish adequate facilities — evidence. —Evidence held to warrant a finding- that an express company-had not prepared itself to furnish adequate transportation facilities to its patrons.
    3. Carriers — failure to furnish transportation facilities — damages. — In an action for damages for failure to furnish express cars for shipment of strawberries, thereby necessitating their shipment by freight, evidence as to the decrease in value from such mode of shipment held to justify an award of damages.
    4. Carriers — formal demand for cars — waiver.—An express company, by furnishing forms upon which demands for cars are to be made, thereby waives the necessity for notice in the form prescribed by the rules of the Interstate Commerce Commission.
    5. Carriers — waiver of demand for cars. — Where an express company, through its local agent, gave notice that no more express cars would be furnished, this constituted a waiver of the necessity for a written demand for such cars as a prerequisite to liability for failure to supply them.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Mehaffy, Bonham é Mehaffy, for appellant.
    1. There was no competent proof of damages and the measure thereof. In order to hold appellant liable, proof should have been made of what the berries would have brought if the express car had been furnished, and what they actually brought when shipped by freight. 77 Penn. Sup. Ct. 174; 109 S. E. 523; 184 N. W. 914; 92 Ark. 573. It was not competent proof of damages to show that there was a difference generally of $1 to -$3 per crate in the price of berries shipped by express and those shipped by freight. The defendant, liad the plaintiff been held to competent proof, could have met it by showing what the market prices were on the days that the berries should have reached the market, and what they were on the days the berries did reach the market, and this difference was the true measure of damages. 121. Ark. 150; 92 Ark. Ill; M2 Ark. 272; 132 Ark. 446; 134 Ark. 300; 139 Ark. 302; 149 Ark. 669; 144 Ark. 11; ¡81 Ark. 373; 61 Ark. 540.
    2. The appellant furnished to the plaintiff all the express cars it was required to furnish under the law, and is therefore not liable in any sum. If the express company had furnished any more cars than it did, it would not only have violated the Federal statutes and the provisions of its tariffs, which have the force and effect of a statute, binding alike on the carrier and the shipper, but also have violated the State statute, prohibiting discrimination. If it equitably distributed the cars that it owned and controlled, that was all that was required. 230 U. S. 194, 197; 6 Cyc. 372; 77 Ark. 357; 144 Ark. 11: 4 B. C. L. 946, § 426; 217 U. S. 136, 54 L. ed. 698; 242 TJ. S. 120; 280 Fed. 780.
    3. It was erroneous to instruct the jury that the express company was bound to know that, at certain seasons of the year, there would be movements of certain commodities, and that it must anticipate and provide cars to reasonably supply the demand. The effect of this instruction is to tell the jury that the company must-supply the cars, whether it owned them or not or had them under control. In view of the announcement in its tariff that it had only a limited number of cars, and of the proof showing that the railroad companies own the great majority of such cars, it would be unreasonable and unfair to mulct the express company in damages for failure to furnish cars when it had furnished all that it possibly could furnish without discrimination against others. 166 Fed. 10; 242 U. S. 208; 18 L.. B. A. (N. S.) 508; 20 L. B. A. (N. S.) 310, and note.

      G. G. McKay and Brumlidge & Neelly, for appellee.
    Appellant overlooks, in argument, the fact that this is a suit based on the failure to furnish cars, and not for damages for delay or loss in transit. It is not brought under the statute prescribing a penalty for failure to furnish cars, but under the common-law liability. As to the proper rule for damages in this case, see 91 Ark. 192. There can be no question as to the amount of damages. The undisputed testimony shows that berries loaded in express cars sell for more on any market, and, specifically, that appellees could sell all the express oars when loaded, on the track at Bald Knob, at from one to two dollars more per crate. The relation of carrier and shipper existed by virtue of the demand for the cars by the appellees, and the refusal of the company to supply them, and all the testimony shows that they intended to load these cars if received, and either sell them on the track, or at St. Paul, which was their principal market. 146 Ark. 355. It was the express company’s duty, when it held itself out as a common carrier, to equip itself with sufficient cars to supply the normal demand, and failure to furnish necessary cars, legally demanded, would render the company liable, except in cases of extraordinary or unusual emergencies which could not be reasonably anticipated. The company cannot excuse itself by saying it has only two hundred and fifty ears. 64 Law. ed. (U. S.) 261; 2 Hutchinson on Carriers, 3d ed., 540; 10 C. J. 72; 105 Ark. 115; 10 C. J. 74; 4 K. C. L. 675; 77 Ark. 357.
   McCulloch, C. J.

Appellee is a domestic corporation, engaged in the business of buying and selling fruits, vegetables and other farm products, at the town of Bald Knob, in White County. We understand from the record that this corporation is a cooperative concern, organized for the purpose of handling produce for the growers. At any rate, it is shown that the corporation is engaged in shipping and selling fruits, berries and vegetables, and was engaged in that business during the years 19.18, 1919 and 1920, as well as other years before and since.

This is an action instituted by appellee against appellant express company, to recover damages alleged to have been sustained by reason of failure of the express company to furnish refrigerator cars for the shipment of strawberries during the season of May, 1920. It is alleged in the complaint that appellee notified the express company, several months in advance, that thirty refrigerator cars would be needed, and that during the season written notices, or demands, were given to appellant for eleven cars, and that further notices were not given, for the reason that the shippers were notified by the agent of the express company that no further cars would be furnished and that other notices would be unavailing. It is also alleged that appellant furnished only five refrigerator cais to appellee, and that appellee was compelled to ship the remainder of its berries in railroad refrigerator ears, at a loss of two dollars per crate on account of deterioration resulting from the slower and rougher method of transportation. The complaint also alleged facts constituting discrimination on the part of the express company in distributing its cars, but this charge was abandoned, and the cause was tried below solely on the alleged failure to furnish cars on demand.

Appellant answered, denying the allegation witli respect to furnishing cars, and pleaded that it was impeded in the distribution of cars by a switchmen’s strike on the railroad, and that it fairly distributed its refrigerator cars, and assigned to the shippers at the town of Bald Knob their proportion of such cars owned by the express company.

Appellee’s damages were laid in the complaint in the sum of $2,999, and, on the trial of the cause, the jury returned a verdict in favor of appellee for the amount claimed.

Appellee introduced proof tending to show that strawberries had been raised for market in the vicinity of Bald Knob for about eleven years, and that there was an increasing demand for rapid transportation of the berries to market; that in January, 1920, the agent of the express company at Bald Knob was notified thát appellee would need thirty refrigerator express cars, that, after the shipping season opened in May, appellee delivered to the agent of the express company at Bald Knob written notices, on blanks furnished by the company, for eleven cars, and that the agent thereafter notified appellee not to make any further demands, as no other refrigerator cars could be furnished; that the express company only furnished five refrigerator cars to appellee, that the remainder of the berry crop, 42 cars, was shipped in freight refrigerator cars, and that there was a loss of from one to three dollars per crate, on account of having to ship the berries by that mode of transportation.

Appellee introduced numerous witnesses, who were engaged in -the fruit and berry shipping business at various places in the country, and these witnesses testified that there was a necessary depreciation in the quality and market value of berries shipped by express and by freight, the extent of the damage varying, according to the testimony of the witnesses, from seventjr-five cents to three dollars per crate. The testimony shows that the average refrigerator car carries 448 crates. According to this testimony, the award of damages to appellee was considerably less than the testimony warranted, if the difference in the market price had been placed even at the lowest amount fixed by these witnesses.

Appellant introduced as a witness its superintendent of transportation, who testified concerning the number of refrigerator cars owned by the express company, and also stated in detail the methods of the company in furnishing and distributing cars. The testimony of this witness, as abstracted by counsel, fully sets forth appellant’s defense in this case as follows:

“The. American Railway Express Company owns 250 refrigerator cars. On the lines mentioned, with our own cars there are about 1,000 in the country — 993, I think, is the exact number. Of this number the express company owns 250. The other cars, the railroad cars, are used constantly by the railroads when they are needed for the shipment of perishable goods. You get peak movements where the cars are not sufficient in number, and they vary from season to season. One season will come at different times, and next year, while it might be the same, the next one is a little earlier or a little later.. I distribute the cars to the territory, and they are distributed to the shippers by the route agent having charge of the district. Take this territory down here; we know this territory as the Little Rock district, by reason of the fact that the cars are usually distributed from Little Rock and then taken on the Missouri Pacific Railroad both ways out of Little Rock, also up toward Van Burén. In peak shipments all the cars, both express company and railroad company cars, are brought into use. That w;as true in 1920. We gave the Little Rock territory as many cars as other territory, proportionately. If we had given this territory any more cars than we did, we would have been discriminating against some other territory.”

It is shown by the testimony of this witness that the business of the express company covers practically all' of the United States, a part of Canada, and the Hawaiian Islands. The witness also testified that there was a contract between the express company and certain railroad companies for the latter to furnish refrigerator cars, but the witness was not certain as to the details of the contract, and the same was not introduced in evidence.

The first and principal contention of appellant is that the evidence is not sufficient to.sustain the verdict, in that all of the cars owned by appellant were fairly and equitably distributed among shippers; that there is no charge of discrimination involved; that appellant was in readiness to furnish equipment for all usual and reasonable demands, and that it was not bound to anticipate unprecedented demands. We do not think that counsel for appellant has drawn the proper inferences from the testimony in the case — the inferences that the jury might have drawn in viewing it in its strongest light favorable to appellee. It is true that there is no charge of discrimination involved, but it is equally true that the evidence adduced by appellant does not show indisputably that the distribution of cars was interfered with by a switchmen’s strike. One of the witnesses testified that there was such interference, but it is shown that the railroad company furnished all refrigerator cars that were demanded or needed, after the express company had refused to furnish such cars.

The testimony shows that it is highly desirable to ship berries by express rather than by freight, and that there is a considerable difference in the deterioration in quality and price, on account of the fact that express shipments are more rapid, and that there is better refrigeration and smoother riding. The testimony shows, as before stated, that the difference in price varies from seventy-five cents per crate to three dollars per crate. The evidence also shows that in the berry-growing sections there is an increasing demand for more express cars, for the reason stated above, and that for several years past shippers have been demanding' all of such cars that they could get, and only ship by freight when compelled to do so by lack of facilities for shipping by express. Now, the testimony adduced by the express company shows that it only owns 250 refrigerator cars, and that the railroad companies own 750 refrigerator cars, and the evidence fails to show that, notwithstanding the increasing demands for express cars, there have been any increased facilities for that mode of transportation. The coihpany, of course, must take notice of the general conditions of the country where it does business, and it is bound to know of these increasing demands for refrigerator cars.

The undisputed evidence shows that, in the year 1918, there were 250 carloads of berries shipped from White County, Arkansas, and that the shippers demanded all the express cars they could get, and yet, in the face of this growing demand, the company, according to the testimony, has made, no attempt to increase its facilities to meet the demand. The testimony does not present a case of an unprecedented demand, but the usual and growing demand from year to year. The law requires a carrier to make reasonable effort to provide instrumentalities for accommodating the business of the localities which it assumes to serve. This is not merely a statutory requirement, but it is an elementary principle originating in the common law. 2 Hutchinson on Carriers, 540; 10 C. J. 72.

The jury could have found, from the evidence in this case, notwithstanding the statement, of appellant’s principal witness that it had adopted all reasonable means to furnish cars, that appellant had not prepared itself to furnish adequate transportation facilities to its patrons.

It is further urged that the testimony fails to support the verdict in that there is no proof of actual damages, according to settled rules of law. Appellant invokes the application of the rule that, in an action against a carrier for failure to transport and deliver property, the measure of damages is the depreciation in value of the commodity at the point of destination. L. R. & Ft. Smith Ry. Co. v. Conatser, 61 Ark. 560; C. R. I. & P. Ry. Co. v. Miles, 92 Ark. 573; C. R. I. & P. Ry. Co. v. Stallings, 132 Ark. 446; Hines v. Mason, 144 Ark. 11. The answer to that contention is that this is not a suit for delay in transportation, but it is one to recover on account of failure to furnish proper facilities for transportation, and for damages arising because of such failure. In other words, it is a suit to recover damages resulting by reason of the difference in the modes of shipment, by freight or by express, and the proof abundantly establishes the fact that there is a necessary depreciation on account of the less desirable method of transportation by freight. There is no other way reasonably of establishing the damages than by the proof introduced by appellee. The berries had to be shipped by freight because of appellant’s failure to furnish express ears. There was no unusual delay shown in the shipment by freight, otherwise there would have been a remedy against the railroad company. But the proof adduced does establish the fact that there is a necessary delay in shipping by freight, instead of by express, and that the fruit is necessarily injured on account of the transportation being rougher. Besides, the proof shows that it was the custom to sell berries to the highest bidders at the point of shipment, after being loaded on cars, and that sales in that manner brought from $1 to $3 per crate more when the berries were loaded in express cars than when loaded in freight cars. This was sufficient to justify an award of damages on that basis.

It is also contended that appellee should not be permitted to recover, for the reason that the notices, or demands, for cars were not in writing. The proof shows that there were eleven- cars demanded in writing. It is insisted that these written demands were not in the precise form required by the rules of the Interstate Commerce Commission, but it is shown that the notices were given on forms furnished by the company itself. The express company could waive the requirement, and did waive it, by accepting notices on blanks which it furnished to its patrons. Mo. Pac. Rd. Co. v. Henderson, 157 Ark. 43. Only five of the eleven cars actually demanded were furnished by the company. The testimony shows that other notices were not given, for the reason that the local agent, under instructions from the route agent, informed the shippers that no more express cars would be furnished. This constituted a waiver of the written notice. Mo. Pac. Rd. Co. v. Henderson, supra. After the refusal of the express company to furnish any more cars, it would have been a useless +hing to give written notices or demands.

There are numerous assignments of error with respect to the court’s charge to the jury, but it is unnecessary to discuss them in detail, for, on examination, we find that the instructions of the court were in accordance with the principles of law herein announced. The instructions also conformed to the principles of law announced in DeQueen & Eastern R. Co. v. Park, 146 Ark. 355, which are controlling in the present case, the facts being to some extent similar. The instructions properly presented to the jury the issues, and there' was, as before stated, evidence sufficient to sustain the verdict.

The judgment is therefore affirmed.


author: McCulloch, O. J.

text:
    Morrilton Cotton Oil Company v. Frauenthal & Schwarz.
    Opinion delivered February 25, 1924.
    1. Landlord and tenant — lien for supplies. — Where a landlord signed a note to enable his tenant to secure money from a bank, the test of whether the landlord had a lien on the tenant’s crop for such money as for supplies advanced depends upon whether the relation of debtor and creditor existed between the landlord and tenant, or whether the landlord was merely a surety; and the form in which the debt to the bank was evidenced was immaterial.
    2. Landlord and tenant — lien for supplies — evidence.—Where a landlord signed a note with his tenant to enable the tenant to secure money from a bank, which renewed a chattel mortgage on the tenant’s personal property and the crop to secure the note, evidence held to sustain a finding that the money obtained from the bank was not a loan to the landlord, but to the tenant, so that the landlord was not enitled to a lien as for supplies furnished to the tenant.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Strait & Strait, for appellant.
    The undisputed proof shows that Burke, the landlord, was not a mere surety on the note of the tenant, but, on the contrary, that the credit was extended to Burke, and was, as to him, an original undertaking, and that he in turn furnished the money to the tenant. The case falls clearly within the rule announced in Foster v. Bradley, 143 Ark. 320; 153 Ark. 599.

      R. W. Robins, for appellees.
    While the landlord’s lien is primarily for rent alone, and the statute, C. & M. Digest, § 6890, has extended it to advances of necessary supplies, money, etc., yet it cannot be extended beyond the terms of the statute. 80 Ark. 243. The principles stated in Ka/ufmcm v. Underwood, 83 Ark. 118, are clearly applicable in this case, and should control. See also Tiffany, Landlord & Tenant, vol. 2, pp. 1911, 1912; 2 Underhill, Landlord & Tenant, 1414; Id. 1417; 16 E. C. L., § 498; 70 Miss. 60, 11 So. 566; 44 S. W. (Tex.) 915; 240 S. W. (Tex. Civ. App.) 641; 1W.&W. (Tex.) 320; 106 S. W. (Tex. Civ. App.) 1145; 75 So. 383.
   McCulloch, O. J.

This is an action instituted by appellees in the chan'qery court to foreclose a chattel' mortgage executed, to them by one McNeeley on a crop of cotton. McNeeley was a tenant of Mack Burke, who was to have one-fourth of the crop .as rent, and who furnished supplies to McNeeley to the extent of the sum of $82 to enable the latter to make and gathen the crop. The cotton (about a bale and a half) was gathered by McNeeley, and he and Burke sold it to appehant, Morrilton Cotton Oil Company. McNeeley executed to the First National Bank of Morrilton a chattel mortgage, subsequent to the execution of the mortgage to appellees, conveying his interest in all crops and in certain other personal property, to secure a debt of $192, with interest. ' McNeeley, Burke, Morrilton Cotton Ooil Company and the First National Bank of Morrilton were made defendants in the action. The controversy arises between appellees and Burke concerning the latter’s claim to a superior tlien on the crop, as landlord.

It is conceded that Burke is entitled to one-fourth of the cotton as'rent, and that he is entitled to payment of liis debt of $82 for supplier furnished to McNeeley, but, after making these deductions from the price of the cotton, it leaves a balance of $136, which appellees claim under their mortgage, .and which they recovered in the decree rendered by the chancery court. 'Burke claims a lien on this balance of $136 for the debt due the First, National Bank of Morrilton, on the ground that it was for money advanced by the bank to McNeeley for Burke.

The proof shows that Burke signed the note to the bank with McNeeley, but he claims that it was money which he furnished to McNeeley, .and obtained it from the bank. This comes down to a question of proof. If Burke was a mere surety for his tenant, and nothing more, he has no lien for the amount obtained from the bank. Kaufman v. Underwood, 83 Ark. 118. On the other hand, if Burke in fact obtained the money from the bank and advanced it to McNeeley, or if lie procured tbe loan for McNeeley from the' bank and the relation of debtor and creditor subsisted primarily between Mc-Neeley and Burke, then the latter is entitled to a lien, regardless of the form in which the debt to the bank is evidenced. Forster v. Bradney, 143 Ark. 319; Walker v. Rose, 153 Ark. 599; Bank of Gillett v. Botts, 157 Ark. 478. The test is, whether or not McNeeley, the tenant, is indebted to Burke, his landlord, for supplies. If there is no debt in existence, but merely the relationship of principal and surety, there is no lien; but if there is a debt, there is a lien, as before stated, regardless of the form employed in obtaining the money from the bank.

The evidence is not, we think, sufficient to overturn, the finding of the chancellor as to the character of the relation between McNeeley, Burke and the bank. They both signed the note to the bank, and there is no written evidence of any debt from McNeeley to Burke. Burke testified that he procured the money from the bank and advanced it to McNeeley, but he is contradicted by his own admission to a witness introduced by appellees. This witness, Kuykendall, was the agent of appellees, and he testified that,’ when he went up to the farm where the cotton was raised, to see about hauling and shipping it, he had a conversation with McNeeley and Burke, in which it was stated to him that Burke only claimed $82 for advances in addition to the rent. The cashier of the bank was introduced, but he knew little, if anything, of the transaction, except what was shown on the face of the papers, that is the mortgage and the note.

It appears from the testimony that the bank held a mortgage executed by McNeeley on the same property during the preceding year, and their present mortgage was a renewal on the same property, except the crop, which was for a different year, and'it embraced a, lot of stock. McNeeley was not a tenant of Burke during the period of the first year covered by the mortgage to the bank, and he could not, therefore, have had any interest at that time in the transaction between McNeeley and £he bank. This indicates a course of dealing between the bank and McNeeley which excludes the idea that the advances were made by the bank not to McNeeley but to Burke. The inclusion in the mortgage to the bank of the live stock and other chattels, on which Burke had no lien as landlord, tended to show that the loan was made by the bank to McNeeley, and not to Burke.

Considering these circumstances, and the admission of Burke, made directly to appellee’s agent, we cannot say that the 'Chancellor erred in finding, from these facts, that the money obtained from the bank was not a loan to Burke, but was a loan direct to McNeeley, secured by the chattel mortgage and by Burke as surety.

The decree is therefore affirmed.


author: Wood, J.

text:
    Home Life & Accident Company v. Scheuer.
    Opinion delivered February 25, 1924.
    1. Insurance — forfeiture for nonpayment of premium. — 'Under a policy of life insurance providing that it should become void on failure to pay premiums when due, the nonpayment of a premium when due ipso facto caused a forfeiture of insured’s rights.
    2. Insurance — waiver of forfeiture. — Where, after a policy of life insurance was forfeited for nonpayment of a premium, the insurer advised the insured that the policy was still in force, the forfeiture was waived.
    3. Appeal and error — weight of evidence. — It is for the jury, and not the Supreme Court, to weigh the evidence, determine the credibility of witnesses, and reconcile real or apparent conflicts-
    4. Appeal and error — conclusiveness of verdict. — A verdict sustained by substantial evidence is conclusive on appeal.
    5. Insurance — evidence to sustain finding. — In an action on a life insurance policy, evidence that insured wrote to the insurance company inquiring whether her policy was still in force, and that a letter advising her that the policy was still in force was received in reply thereto, held sufficient, in the absence of evidence to the contrary, to justify a finding that the letter was written by the company’s authorized officers.
    6. Insurance — authority of superintendent to waive forfeiture. —The superintendent of an insurance company’s life insurance department and underwriting manager, whose duty it was to pass on the reinstatement of lapsed policies, held authorized to waive a forfeiture of a life insurance policy, though the policy provided that only the president, vice president or secretary had power to modify the policy.
    ■7. Insurance — waiver of forfeiture. — In an action on a life insurance policy, evidence held to warrant a finding that the insurer waived a forfeiture because of nonpayment of premiums, and therefore was estopped to deny liability.
    8. Insurance — forfeiture.—Where insured inquired whether her policy was still in effect, it was the insurer’s duty to inform her with promptness that it would insist on a forfeiture, if such was its intention.
    9. Insurance — penalty and attorney’s fee. — Under Crawford & Moses’ Dig., § 6155, the beneficiary, on recovering on a policy of life insurance, was entitled to recover a penalty of 12 per cent, and reasonable attorney’s fees.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      T. D.Wynne, for appellant.
    1. The policies lapsed and became null and void by virtue of'the terms of the contracts themselves, on June 8, 1921. 75 Ark. 25; 148 Ark. 199; 112 Ark. 171; 75 Ark. 98; 156 Ark. 77. Thereafter they could only be reinstated in the method set out in the policies, viz., by payment of the second annual premium, application for reinstatement, and evidence of insurability satisfactory to the company made and received. None of these prerequisites were discharged.
    2. The burden of’ proving a waiver was on the plaintiff. His own oral testimony pertaining to the receipt of a letter written by the company, assuring the insured and plaintiff himself that the matter was fixed up, and for them not to worry, was altogether insufficient for that purpose. It was incumbent on him to show that such letter was written by some one vested with authority to make the waiver. Provision (4) under the head of “General Provisions,” is a part of the contract. Plaintiff should therefore have shown that the alleged letter was written by the president, vice-president or secretary. 2 Joyce on Insurance, § 539, and notes; 2 Bacon on Insurance, § 589, and notes; 72 Ark. .62; 104 Ark. 512; 125 Ark. 119; 10 L. R. A. 517; 3 Cooley, Law of Insurance, 2513; 10 L. R. A. 577. Full effect should be given to the limitations and restrictions in insurance clauses prescribing by whom waivers may be made. 98 Pa. 384; 85 N. Y. 282; 57 N. Y. 500; 95 U. S. 3'26; 96 U. S. 234; 93 H. S. 24; 96 U. S. 572.
    3. If it be granted that the letter was -written, its contents were not such as constituted a waiver. The policy defined the consequences of default in the payment of premiums, i. e., that the policy should be “ipso facto null and' void.” It ceased to bind the company and to protect the insured, without any act or declaration on the part of the company. 112 Ark. 171. The restoration of the policies to life by reinstatement would be a new assurance, a new contract, though under the former policies. 10 L. R. A. 577; 25 L. R. (N. S.) 78. Where the contract is complete, the prohibition express, the failure admitted, the burden of proof is not only upon the party asserting the waiver, but he should be held to a clear and convincing proof of knowledge on the part of the insurer of all the facts necessary to establish a waiver. 24 IT. S. Law. ed. 387.

      Botts & O’Daniel, for appellee.
    1. The letter relied on did not come from some agent of the company, but from the company itself. It comes too late for the appellant t.o raise the. question for the first time on appeal of authority to write the waiver letter, and to say that it was not written by the proper parties, especially since it admits, and the proof shows, that the letter came direct from the company itself, and from its home office. The question of agency is not involved. 83 Ark. 575. If appellant had authority to delegate the question of waiver to its president, vice president and secretary, it had authority to effect such waiver itself. Ill Ark. 436; 25 Cyc. 861.
    2. Forfeitures are not favored in law, and when an insurance company has, by its conduct or course of action, led a policy holder to believe that his insurance is in full force, the company will be estopped from denying liability. 132 Ark. 549; 96 U. S. 841; 53 Ark. 494.
    3. The question of waiver Avas one of law. 25 Cyc. 861; 40 Cyc. 270.
    4. The burden of proving a waiver is met when the party pleading it establishes a waiver by a preponderance of the evidence, and he is not required to prove it by the clear and coimncing evidence insisted upon by appellant. 40 Cyc. 269.
   Wood, J.

This is an action by the appellee against the appellant on two life insurance policies in the sum of $5,000 each, issued on the 8th day of May, 1920, insuring the life of Martha E. Scheuer for the benefit of the appellee, her husband. Mrs. Scheuer died on August 28, 1921. This action was brought by appellee on December 19, 1921. The appellee, in his complaint, set up the policies, alleged the death of the insured and the proof of death, and demand on the appellant for $10,000, the amount of the policies, and the refusal by appellant to pay same, and prayed for judgment in that sum and for $600 damages on each policy, and a reasonable attorney’s fee.

The appellant, in its answer, admitted the issuance of the policies as alleged, but denied that proof of death had been made, and denied that the policies were in effect at the time of the death of Mrs. Scheuer, but, on the contrary, alleged that, at that time, the policies had lapsed and were forfeited by the insured, and became null and void because of a failure to pay the premium which was due on May 8, 1921. The appellant therefore denied liability to the appellee on the policies.

C. E. Condray testified that he was the cashier of the First National Bank of DeWitt, Arkansas. After the death of the insured the appellee brought some policies to the bank and asked witness to collect them for him. Witness wrote the appellant, ten or fifteen days after Mrs. Scheuer’s death, at its home office at Fordyce, Arkansas, advising it of the death of Mrs. Scheuer and requesting a special form for making proof of death. Witness received a letter from the appellant, in reply to witness’ letter, stating that Mrs. Scheuer’s policies had lapsed because of the nonpayment of premiums. The policies in controversy were identified by witness and introduced in evidence. The policies contained, among other, the following provisions:

££(a) All premiums are payable either at the head office of the company or to such agent as shall be designated by the company, upon delivery of a receipt signed by the president, vice president or secretary, and countersigned by the agent designated. If any premium or installment thereon is not paid when due, this policy shall be ipso facto null and void, and all premiums forfeited to the company, except as herein otherwise provided.
i£(b) Reinstatement of this policy, in event of default of premium payment, may be made, unless the cash surrender value has been paid, at any time, upon presentation at the head office of evidence of insurability, satisfactory to the company, and payment of all past due premiums, and the payment or reinstatement of any indebtedness to the company hereon or secured hereby, with interest at a rale not exceeding six per centum per annum.
££ (c) Only the president or vice president or secretary has power, in behalf of the company (and then only in writing), to make or modify this or any contract of insurance, or to extend the time for paying any premiums, and the company shall not be bound by any promise or representation heretofore or hereafter given by any agent or person other than above.”

The appellee testified that one Colin Towler sold appellee and his wife $10,000 each of life insurance with the appellant. They dropped all other insurance and accepted insurance with the appellant. They paid Towler cash for the first premiums, that is, for $5,000 on witness’ life, and for $5,000 on witness’ wife’s life. Towler issued a receipt when they, paid him the money. The first premiums on the last two policies were paid in the same way. Appellee and his wife executed notes for the last two premiums. Towler filled out the notes. Witness identified and introduced two receipts issued to Mrs. Scheuer, in the sum of $208.55, reciting that they were for the annual premium on the policy, and paid the same to May 8, 1921. These receipts were signed by Towler and countersigned by John R Hampton, the secretary of the appellant. Witness testified to several receipts for payment of the premiums on his policy. The receipts were delivered to witness at the time the policies were delivered. All witness’ dealings were with Towler. He took the cash payments, accepted the notes, .and delivered to witness the receipts and policies. Towler was designated in the receipt -as the agent. Witness never had any information from the appellant that Towler did not have authority to act for appellant in these transactions. Appellee sold to Towler eighty acres of land for $70 an acre. Towler said he would make the payments in the fall; that if he didn’t have any money he would pay the insurance premiums. When the time came for paying the second premiums, appellee and his wife were anxious to know if they were paid. Towler had said, before the due date of the second premiums, that he would pay the same. About the 5th of May they gave blue notes for the second premiums. They aimed to give part of it in cash, and Towler said he would pay it, and appellee didn’t know what a blue note was. Towler brought them to appellee. Appellee told Towler they wished to pay, and Towler said they had plenty of time — until the 8th of June. Appellee didn’t have the notes in his possession, and didn’t know whexe they were. There was a note for appellee and one for his wife in the sum of a little over $200. Appellee spoke about paying the balance of the premiums in cash, and Towler said there was no need to hurry about it — they had plenty of time to straighten it up. Mrs. Scheuer spoke to Towler about paying the cash part of the premiums, and he replied that he would straighten it up with the appellant, as the appellant owed him. Mrs. Scheuer got her check-book and insisted on paying Towler the part of the second premiums that had to.be paid in cash. He was reluctant to take it, and said, “Never mind.” They had trouble getting Towler to fix it np. Finally they sent for him, and he came and brought the blue notes and filled out part of them there. Mrs. Scheuer offered two. or three times to pay Towler the cash, telling him that she wanted it fixed up right, and he refused to take it. Appellee had no information from appellant that Towler didn’t haA^e authority to collect the second premiums like he had collected the first. After the notes were executed, ToAvler told appellee not to worry, that .everything would be all right. After this some one told appellee that they could not depend on Towler, and they had better Avrite the appellant. So Mrs. Scheuer Avrote the appellant. Appellee didn’t keep a copjr of her .letter — didn’t have any idea he would need it. Mrs. Scheuer asked in the letter if Towler sent in the notes and if the insurance Avas ‘ ‘ still going; ’ ’ that she wanted to be sure about it, and, if ,it wasn’t, they would send the money. She explained in the letter that they had fixed up the matter with Towler — had given notes — and asked when these notes were due.. In the same letter she advised the appellant that they had been informed that they could not depend on Towler, and asked if their insurance was still in effect. They received an answer to 'Mrs. Scheuer’s letter. Appellee didn’t have this letter of the appellant, because, when they got sick, their stuff Avas moved out of the house. They searched for the letter everywhere,'but couldn’t find it. Appellee suav the letter. Appellant stated in this letter that Towler was its agent, and-had fixed the notes up till November, and everything “would be all right — everything would be sure to go on — and not to worry. ” Towler got mad Avith them because appellee told him that they had been informed that he could not be depended upon. The appellant wrote them, before they made the notes, that the policies were due in June. That Avas the only notice they got. In response to that letter they went after Towler, and Towler fixed it up. They fixed it the way Towler directed, and notified appellant that they had done so. After appellee’s wife’s death, on August 28, 1921, appellee requested Mr. Condray, the cashier of the First National Bank, to write the appellant, and gave him the policies to collect. The appellant had not paid any part of the policies. Towler had never paid appellee for his land purchased of appellee, and didn’t even pay the taxes.

On cross-examination appellee stated, among other' things, that they never paid anything toward the second annual premiums due on the policies. Appellee and his wife gave notes, and offered to pay them, and appellant would1 not take it. They offered to pay the premiums when the notes were made. The agreement with Towler was to pay the cash necessary. At the time the notes were executed, appellee and his wife looked to Towler to pay the cash deposit required. Before the second premiums were due, appellee and his wife were anxious to fix up the matter. They had a letter from the appellant, stating that the premiums would be due May 19, 1921. They then got after Towler, and he promised to fix it up, explained about the blue notes, and said that he would fix the receipt for it, and that it would be all right. Appellee had fixed up the payment of the first notes with Towler, and appellant had made no objection about that. After their agreement with Towler to make satisfactory arrangements for the second premiums, they became anxious about it, and Mrs. Scheuer wrote the letter as above stated. The answer of appellant to this letter, about which the witness had testified, was received in about a week or so after Mrs. Scheuer’s letter was mailed. It was from the home office of appellant. In about two and a half or three months after they received appellant’s letter appellee’s wife died. .

Towler testified, for the appellant, that he had been the agent of the appellant for three and a half years. His authority was only that of a soliciting agent — he took applications, etc. He took the applications for the policies in controversy. In payment of the first premiums he took notes for half the premium, and- the other half witness paid himself. When the policies were issued there was a land deal between witness and Scheuer. He had bought a.piece of land from appellee, and had paid $500 on it, and was to pay the insurance premiums for the Scheuers from year to year, and the amount thus paid was to be credited on witness’ indebtedness for the land. Such was the contract when the applications were made and the policies issued. Witness had promised to pay the second premiums of the Scheuers, on certain conditions in regard to the land deal, which the Scheuers did not comply with. The Scheuers.knew that their insurance had lapsed on account of the nonpayment of the second premiums. Witness discussed the matter with them. They seemed to be anxious to reinstate it. Witness told them what was necessary to reinstate the policies — told them that it would be necessary for them to furnish a health certificate, showing the insured to be in good health, and also told them that a cash deposit would have to be made when the notes were delivered, if the appellant reinstated the policies. Witness continued his testimony as follows: “I presented to Mr., Scheuer the blue notes, and at the same time I told him I would pay the cash deposit required, but I didn’t do it, because he refused and failed to comply with his agreement with me, and I told him that if he didn’t do this I was not going to do ‘anything for him along the line of reinstating his policies, that I was through with it. After the notes were signed, I kept them in my possession; I never did send or forward the notes or any money as a cash deposit to the insurance company. I have had the notes in my possession ever since. Mr. Scheuer signed a health certificate eventually — that was some time in June after the execution ofjhe blue notes.”

The testimony, shows that Mrs. Scheuer signed the health certificate and gave it to the witness. The application for reinstatement and the certificate of g-ood health signed by Mrs. Scheuer were introduced in evidence. A form of medical certificate, to be signed by the examining physician, was also introduced, hut was not signed by the- medical examiner and approved by the medical director of appellant. The testimony of this witness further tends to prove that, after the nonpayment of the second premiums, an effort was made to compose the differences between witness and the Scheuers 'concerning the land, and, assuming that these differences had been adjusted, the witness, at the requ/est of the Scheuers, and acting as their agent, went to the home office of appellant and told the bookkeeper that the Scheuers desired to reinstate their lapsed policies, and requested him to make up the amount of cash necessary to be paid,, make up the blue notes to be executed, together with the certificates showing the insurability of the Scheuers. The bookkeeper complied with this request. These notes were executed by the Scheuers, but witness never returned the same to the appellant,' nor was the cash paid by the witness, because, as he states, witness ascertained that the Scheuers had not complied with the conditions upon which he promised to make the cash payment necessary for the reinstatement of the policies. 'Witness did offer to accept the blue notes, and, if the Scheuers had paid the cash, he would have forwarded the notes to the appellant with the cash, and, if this'had been done before the policies had expired, the insurance would have been extended. Witness knew that the Scheuers desired their policies reinstated, and he discussed the matter with the bookkeeper of the appellant, and told him that the witness thought he could reinstate the policies. Witness identified a letter which was written to him by the appellant from its home office at Fordyce, on its letter-head, dated July 25, 1921, as follows: “We have received another letter from Chas. Scheuer, and several days ago we wrote you in regard to this same matter. It is necessary that we give this party some reply, and will ask that you let us hear from you immediately upon receipt of this letter.” Witness answered this letter on the back as follows: “I will let you know all about this matter within a few days, but my reasons for not doing so now is because I want a settlement out of these people before I let you know about this matter, and then you can write them, and this will only be a few days.” Stamped on this letter was the following: “Home Life & Accident Co. Received Aug. 1, 1921, A. B. Banks & Co., Managers. ’’

"Witness never explained to Mrs. Scheuer or said anything to her about not having anything more to do with the matter, after the failure to adjust the differences with appellee. She knew, however, that he was not going to take the land.

Witness Thatch testified that he was the superintendent of the life department of the appellant. He explained the provisions of the policies, and stated that, according to these provisions, if premiums were not paid within thirty-one days of grace allowed, the policy automatically lapsed. There was an effort made by the Scheuers to reinstate their policies. They asked the home office on what basis the policies might be reinstated, and the appellant informed them what was necessary. The notes were prepared in the home office, and the amount required in cash was figured out. No formal application was ever presented by the Scheuers for reinstatement to the home office, nor was there any medical certificate showing insurability after the policies had lapsed. The blue notes were never returned, nor the cash deposit. Witness identified the following letter, written bjr the Scheuers to the appellant, July 18, 1921: How about policies for Chas. and Martha Scheuer Nos. 18282, 17502, 18496 and 18497? Colin Towler, your agent, brought notes for us to sign for, now it was the blue notes, but he has acted the rascal with us in business matters and we feel we can’t trust him. We don’t want to lose out-in the insurance. I have written you once before about this, now please let me know how we stand. We signed those blue notes and want to know if we are in good standing. Answer by return mail.”

Witness answered this letter as follows: “Aug. 1, 1921. Mr. Chas. Scheuer, Stuttgart, Ark. Dear sir: We had a letter from Mr. Towler today in which he advised ns that he would talk to you within the next day or two with reference to your policy. If the conference you have with him is not satisfactory, please write us again.” Witness didn’t dictate the reply immediately after the letter of the Scheuers was received, but probably waited until he heard from Towler. The letter received from the Scheuers was the only one that witness knew anything about. If there was another letter, witness didn’t know anything* about it. Witness was not sure about writing any other letters, but if there was another letter received it would be in the files. All the correspondence with reference to the contract from the Scheuers was in the files, and witness found no other letter except the one introduced in evidence. Witness stated that the appellant might have waived the right to require a medical certificate and examination if the application for reinstatement and the notes and cash deposit had been received within a few days after the policies had lapsed.

The court, in substance, instructed the jury that the only evidence that would warrant a finding for the appellee was that part of the testimony of the appellee in which lie testified that, after the execution of the blue notes and the agreement between him and Towler, he wrote the appellant a letter, making inquiry, and, in response to that letter, the appellant advised appellee that his insurance was in full force, and he need not worry; that, unless such letter was written by the appellant in reply to appellee’s letter, and received by the appellee, the verdict should be in favor of the appellant; that, if such letter was written by the appellant and received by the appellee, it would operate, under the law, as a reinstatement of the insurance, and would constitute a waiver of every other condition in the policy and a ratification of everything that Towler may have done or promised to do, and would fix liability upon the part of the appellant ; that, if the jury so found, its verdict should1 be in favor of the appellee in the sum of $10,000, less the amount of the premiums that would be due on the policies for that year. The court further instructed the jury that the burden was upon the appellee to prove that the letter was written and received as stated. The appellant duly excepted to the ruling’s of the court.

The appellee requested, among others, the following praj^er for instruction: “No. 2. You are instructed that, if you find for the plaintiff in this case for the amount claimed in his amended complaint, then you shall find in favor of the plaintiff in the sum of 12 per cent, as a penalty against the defendant, in addition to the amount due on the policies.” The court refused this prayer, to which ruling, the appellee excepted.

The appellant asked the court to instruct the jury to return a verdict in its favor, and also presented prayers for instructions in effect telling the jury that the policies had lapsed and were forfeited on the 8th day of June, 1921, and that the appellant was not liable unless the policies were reinstated, and that, unless they found the Scheuers had complied with the provisions of the policies concerning reinstatement, the verdict should be in favor of the appellant. The court refused these prayers, to which the appellant duly excepted.

The jury returned a verdict in favor of the appellee in the sum of $10,000, with six per cent, interest from the date of the proof of death, less the amount of the blue notes, with interest thereon at six per cent, from May 8, 1921, to date. Thereupon judgment was rendered in favor of the appellee in the sum of $10,439.26. The attorneys for the appellee moved the court to tax an attorneys’ fee and a twelve per cent, penalty, and offered testimony by two reputable attorneys to the effect that a reasonable compensation to the attorneys for the appellee for services rendered would be between fifteen hundred and two thousand dollars. The court rejected this testimony, and overruled appellee-’s motion to tax an attorneys’ fee and penalty. The appellant prosecutes this appeal from the judgment in favor of the appellee against it, and the appellee prosecutes here a cross-appeal from the refusal of the court to tax a reasonable attorneys ’ fee and for a penalty of twelve per cent.

1. Under the express provisions of the contracts of insurance, evidenced by the policies which are the foundation of this action, the nonpayment of the second premiums on the 8th day of June, 1921, ipso facto caused a forfeiture of appellee’s rights under these policies. Fidelity Mutual Life Ins. Co. v. Bussell, 75 Ark. 25; Patterson v. Equitable Life Assur. Society, 112 Ark. 171; Bobnett v. Cotton States Life Ins. Co., 148 Ark. 199; Home Life & Acc. Co. v. Haskins, 156 Ark. 77. Upon the undisputed evidence, after these policies lapsed because of the nonpayment of the second premiums, there was no reinstatement thereof in compliance with the express provisions of the contract. Therefore the court ruled correctly in so declaring the law; and the only question presented by this appeal is whether or not the court erred in refusing to grant appellant’s prayer for a directed verdict in its favor. The trial court, as we have seen, refused such prayer, but, on the contrary, instructed the jury, in effect, that, if the appellee, during the life of the insured, wrote to the appellant a letter inquiring whether the insurance was still in force, and the appellant, in reply thereto, advised the appellee, before the death of the insured, that the insurance was still in full force and that they need not worry, that such letter, if written, would constitute a waiver of the forfeiture, and render the appellant liable. These rulings of the court, under ■ the testimony, were likewise correct.

2. We have set forth all the material facts bearing on these issues, and it could serve no useful purpose to reiterate them and argue them at length. They speak for themselves. Suffice it to say, whether or not Mrs. Scheuer wrote the letters referred to, inquiring whether the second premiums had been paid and whether the insurance was still in force, and whether the appellant received such letter and replied thereto, before Mrs. Scheuer’s death, stating that Towler was its agent and that he had fixed up' the notes until November, and that everything was all right, and not to worry, were purely issues of fact. Learned counsel for appellant contends that the testimony of the appellee tending to establish the fact that Mrs. Scheuer wrote such a letter and received such an answer from appellant is not only inconsistent, but contradictory in itself. We do not concur with counsel for appellant in this view of the testimony. On the contrary, it occurs to us that the testimony of the appellee is not unreasonable, and, to say the least, when taken in connection with the testimony of Towler and Thatch, the duly authorized agents of the appellant in conducting the negotiations for the appellant resulting in the contracts of insurance, and the other letters in the record, which are established by the undisputed testimony, it fully justifies the conclusion that the letters were written as appellee testifies they were. But, even if the testimony were inconsistent and contradictory in itself, we are not the judges of the evidence and the credibility of the witnesses. It ivas for the jury to weigh all this testimony and reconcile the real, or apparent, conflicts. Certainly, it cannot be said that there was no testimony to warrant a finding by the jury that the letters were written, sent and received, as the appellee testified they were. Eminent Household of Columbian Woodmen v. Heifner, 160 Ark. 624. The verdict of the jury, where there is any substantial evidence to sustain it, is conclusive here. Fowler v. Hammett, ante p. 307, and cases there cited; Gates v. Ritchie, ante p. 484.

3. The policies provided that only the president, vice president or secretary of the appellant had power to make or modify this or any contract of insurance, or extend the time for the payment of premiums. The appellant contends that, under this provision of the policies, the appellee did not meet the burden of proof by showing that the alleged letter was written by the president, vice president or secretary of the appellant. The appellee testified that his wife wrote the letter to the appellant at Fordyce, and that they received, at Almyra, the alleged letter from the appellant, in reply thereto, mailed from Fordyee. In-other words, the testimony of appellee tended to show that his wife wrote the appellant and that the appellant answered the letter. There was no suggestion at the trial, either by cross-examination of the witness or by prayer for instructions, that this letter, if written, was not written by the president, vice president or secretary, the officers of the appellant having power, under the policy, to extend the time for payment of premium's and to reinstate policies of insurance. The testimony of the appellee was sufficient, in the absence of any contention or evidence to the contrary in the trial court, to warrant the jury in finding that the letter was written by the appellant, through its duly authorized officers and agents. Notwithstanding the above provision of the policies, Thatch, whose testimony shows that he was the superintendent of the life department of appellant and its underwriting manager, whose duty it was to pass on the reinstatement of lapsed policies, and who answered the letter of the Scheuers of July 18, 1921, concerning their standing with the appellant, would have had the right to waive the forfeiture of the policies, and by his conduct in the premises could have estopped the appellant from insisting on a forfeiture. Industrial Mutual Indemnity Co. v. Thompson, 83 Ark. 575; Peebles v. Columbian Woodmen, 111 Ark. 436; see Woodmen of the World v. Newsom, 142 Ark. 132, on rehearing.

It must be remembered that there is no testimony whatever in the record to the effect that the appellant did not write the alleged letter, which the appellee testified was received, bearing appellant’s signature, and mailed from Fordyee, where appellant’s home office is situated. On the contrary, Thatch testified concerning this: “I would have authority, I presume, to waive the application for reinstatement. Probably I never did notify Mr. or Mrs. Scheuer or Mr. Tow’ler that these policies had lapsed.” He nowhere denies that the letter was written which the appellee testified he received, and he does not testify that a letter was not written by the appellant, advising the Scheuers that they were still in good standing, in reply to Mrs. Scheuer’s letter of inquiry. We conclude therefore that the testimony was sufficient to warrant the jury in finding that the alleged letter was written by the appellant.

4. What was the effect of that letter on the contract of insurance? This letter shows clearly that it was not the purpose of appellant to insist upon a forfeiture of the policies because of the failure of the insured to pay the second premiums at the time same were due on June 8,1921, the last day of grace. The letter of the Scheuers of July 18, making inquiry of appellant as to their standing, and the answer thereto, by the appellant, of August 1, 1921, and the letter of appellant to Towler, its agent, of July 25,1921, all pertaining to these policies and relating to the question as to whether or not the policies were still in force, show that the appellant, at least as late as August 1, was not insisting on a forfeiture of the policies for the nonpayment of the second premiums. Mrs. Scheuer died on August 28,1921. We are convinced that there was substantial testimony to warrant a finding by the jury that appellant, by this letter, intended to inform the Scheuers that these policies were still alive, and that it was the intention of appellant that they be kept alive until its agent, Towler, had perfected arrangements with the Scheuers for the continuation or reinstatement of the policies; or, at least, until they had had an opportunity to confer with Towler, and, if satisfactory arrangements had not been made, until Towler or the Scheuers notified the appellant to that effect. It is certain from the testimony that the Scheuers were anxious to keep these policies alive, and would have done everything required by the appellant, under the provisions of the policies, to reinstate the policies, possible for them to do, if they had been notified that their policies had lapsed, instead of being informed to the contrary. In the meantime, and without any further correspondence or notification in any manner that the policies had lapsed and were of no effect, Mrs. Scheuer died.

Forfeitures are not favored. It was the duty of the appellant, under the circumstances, to promptly answer the letter of the Scheuers and frankly tell them that their policies had lapsed, and that it would insist on a forfeiture, if such was its intention.

After a consideration of the whole record, we are convinced that the testimony was sufficient to warrant the jury in finding that the appellant had waived the forfeiture of the policies because of the nonpayment of the second premiums, and is estopped from asserting that it is not liable on the policies. The judgment therefore in favor of the appellee for $10,439.26, the amount of the policies with interest, less the amount of the second premiums, is affirmed.

■ 5. The court erred in not granting the appellee’s motion for penalty and attorneys’ fee. Under our statute, and the pleadings and proof in the case, the appellee was entitled to recover a penalty of twelve per cent., together with a reasonable attorneys’ fee. Section 6155, C. & M. Digest; Queen of Ark. Ins. Co. v. Bramlett, 103 Ark. 1; Amer. Life Ins. Co. v. White, 126 Ark. 483-494; N. Y. Life Ins. Co. v. Adams, 151 Ark. 123; National Life Ins. Co. v. Sherrill, 155 Ark. 381. The testimony on the motion to tax a reasonable attorneys’ fee tends to prove that a reasonable attorneys’ fee for the services rendered would amount to between $1,500 and $2,000. One witness stated that $1,500 would be a reasonable fee, and another that between $1,500 and $2,000 would be a reasonable fee. But we are of the opinion that the sum of $1,000 would be a reasonable compensation for the services rendered by appellee’s counsel. The order of the court refusing to allow appellee the penalty and attorneys’ fee is therefore reversed, and judgment will be entered here for a penalty of 12 per cent, on the amount of the judgment recovered below, and attorneys’ fee in th'e sum of $1,000.