text:
    Ferrell v. Elkins.
    Opinion delivered May 21, 1923.
    1. Contracts — public policy — evidence..—While no court should hesitate to declare void any agreement or contract to corrupt or influence improperly the official conduct of any public servant, yet, before applying such remedy and permitting one who has received a valuable consideration for a promise fair upon its face to escape its performance by pleading the invalidity of his own agreement, such fatal defect therein must be so clear as to be free from doubt.
    2. Pleading — presumption in favor of. — Under the Code, every reasonable intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it is so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever.

      3. Contracts — illegality.—It is not enough to defeat the enforcement of a contract that it is susceptible of an illegal use, or that one of the parties to it may have contemplated and designed such illegal use, if the other had a right to suppose, under the circumstances, that the contract was to have effect according to its apparent and lawful construction.
    4. Contracts — sufficiency of complaint. — A complaint alleging that plaintiff was associated with defendants in a construction company for the purpose of building roads, having a one-third interest in any contracts they might obtain, that plaintiff did a great amount of .preliminary work which was used by defendants in procuring a contract to, construct a certain road, and that upon & dissolution of the partnership defendants agreed to pay a specified sum to plaintiff for his interest in the partnership, held to state a cause- of action.
    Appeal from Pulaski • Circuit Court, Second Division; Guy Fulh, Judge;
    reversed.
    STATEMENT OF FACTS.
    Clyde A. Ferrell sued M. W. Elkins and W. I. Davis to recover $10,000 alleged to be due him for assisting them in procuring a contract between them and the Western Lawrence Road Improvement District No. 1 to construct an improved road.
    The court sustained a demurrer to the complaint on the ground that the contract sued on was against public policy, and void. The plaintiff amended his complaint, and the court again sustained a demurrer to it on the same ground. The plaintiff then filed an amended' complaint. It alleges that the plaintiff, Ferrell, is' a citizen of Pulaski County, ■ Ark.; that the defendant, Elkins, is a citizen and resident of Pulaski County, and that the defendant, Davis, is a resident of Lawrence County, Ark. That in the year 1919 the plaintiff was associated with said defendants in a construction company for the purpose of road building, and, as a partner with them, was interested in their business to the extent of one-third of any contracts they might obtain; that he was an engineer, and familiar with the class and kind of work which they expected to do; that, in securing contracts for the construction of roads, it is necessary to do a great amount of preliminary work, such as making surveys and cross-sectioning the road and estimating and compiling data as to the costs, profits, etc. That during the year 1919 said partnership became interested in the contemplated improvement of Western Lawrence Road Improvement District No. 1, and that the plaintiff did a great amount of preliminary work, surveying, estimating, etc., all of which he furnished the partnership, and which was used by it in bidding upon and in' securing the contract to construct an improved road in said improvement district. That before a bid was made for said work it was desirable that the partnership should .be dissolved, and this was done, and that, upon the dissolution of the partnership, Davis agreed to pay Elkins $5,000 for his interest therein and Ferrell $10,000 for his interest. That Davis was not able to make said payments in cash, and made a contract in writing whereby he agreed to pay Elkins for his use and benefit and for the use and benefit of Ferrell the sum of $15,000, and that the same should be paid to him by the commissioners of said district. A copy of said contract was made a part of the complaint, and that no amount whatever had been paid the plaintiff under said contract. Wherefore the plaintiff prayed for judgment against both defendants in the sum of $10,Q00.
    Exhibit “A” referred to in the complaint is as follows:
    “September 2, 1919.
    “Mr.- Clyde A. Ferrell, Little Rock, Ark.
    “Subject: Western Road-Improvement District, Lawrence County, Arkansas.
    “Dear sir: I hereby assign to you a two-thirds interest in and ;(to)‘ the agreement given me this day "by W.: I.- Davis, contractor, who agreed to. pay me a fee of $15,000" for my assistance in aiding to secure the above contract.

      "As the first payments are made to me, I agree to pay to you one-half of each payment until I have received the sum of $10,000, then you are to receive all of the remainder of $5,000.
    "Very truly yours,
    (Signed) "M. W. Elkins.”
    The court sustained a demurrer to the amended com-piaint. Thereupon the plaintiff refused to plead further and elected to stand upon his complaint, and his complaint was dismissed by the court.
    The plaintiff has duly prosecuted an appeal to this court.

      G. E. Garner, for appellant.

      Mehaffy, DonhOm & Mehaffy, for appellees.
    The contract sued on is void as against public policy. 40 Ark. 251; 133 Ark. 113; 147 Ark. 252; 134 Ark. 328; 124 Ark. 313; 122 Ark. 562.

      Murphy, McJIaney & Dunaioay, for appellee Davis.
    The court properly sustained the demurrer to the complaint, the contract sued on being void as against public policy. 124 Ark. 313; 160 N. W. (Ia.) 927; 94 S. E. (W. Va.) 388; 177 Pac. (Okla.) 903; 219 Ill. App. 432; 226 S. W. (Term.) 221; 129 N. E. (Mass.) 669; 152 Ark. 139; 61 So. (Ala.) 373; 95 Pac. (dolo.) 936; 117 N. W. (Ia.) 746; 139 N. W. 567; 182 S. W. (Ky.) 220; 155 Pac. (Okla.) 241;'118 S. W. (Tex.) 848; 62 So. (Ala.). 542.
   Hart, J.

(after stating the facts). As above stated, the ground upon-which the demurrer to the amended complaint was sustained by the court is that the contract sued on is contrary to public policy, and therefore void. This court has held that a contract to procure the passage of an act of the Legislature by lobby services, or by using personal influence with the members, is void as against public policy. Buchanan v. Farmer, 122 Ark. 562, and Miller County H. & B. Dist. v. Cook, 134 Ark. 328.

The Supreme Court of the United States has said that there is no real difference, in principle, between agreements to procure favors from legislative bodies and agreements to procure favors in the shape of ..'contracts from tlie heads of departments of the United States G-overnment. The court further said that the introduction of improper elements to control the action ol both is the direct and inevitable result of all such ar- ' rangements. Tool Co. v. Norris, 2 Wall. (U. S.) 45. See also Cole v. Brown-Hurley Hardware Co. (Iowa), 18 L. R. A. (N. S.) 1161, and Kansas City Paper House v. Foley Railway Printing Co. (Kan.), 39 L. R. A. (N. S.) 747.

In the case from Iowa, just cited, it was said .that no court should hesitate to declare void any agreement or contract to corrupt or improperly influence the official conduct of any public servant, but that it is an equally sound principle which leads courts to declare that, before applying such remedy, and permitting one who has received a valuable consideration for a promise, fair upon its face, to escape its performance by pleading the invalidity of his own agreement, such fatal defect therein must be so clear as to be free from doubt.

The question before the court here is whether or not the language of the complaint'brings the case within the ban of the principles of law above announced. It will be remembered that the court sustained a demurre],’ to the amended complaint, and the plaintiff declined to plead further. Contrary to the common-law rule, under our Code every reasonable intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside -on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever. Cox v. Smith, 93 Ark. 371.

Now if, under the allegationá of the complaint, the contract in question is susceptible of being carried out in a lawful way without conflicting in any manner with the common intent of the parties at the time the contract was entered into, there is no ground on which it can be held to be invalid. It is not enough, to defeat it that it is susceptible of an illegal use, or that one of the parties to it may have contemplated and designed such illegal use, if the other had a right to suppose, under the circumstances, that the contract was to have effect according to its apparent and lawful construction. Gregory v. Wendall, 40 Mich. 432.

In the instant case, according to the allegations of the complaint, the plaintiff and the defendants had entered into a partnership for the purpose of constructing improved roads under contracts with road improve- . ment districts organized under the statutes of the State. The plaintiff had a third interest in the partnership, but had personally collected data and made preliminary surveys, including a cross-sectioning of a public road whicli was to be constructed in Lawrence County by certain improvement district commissioners. The surveys made and the data collected by the plaintiff were of much value in bidding on said contract. It was a perfectly legal act for the plaintiff to sell the information he liad thus cob leeted to the defendants, to be used by them in bidding upon the contract. Of course, the plaintiff could not sell his personal influence with the commissioners to the defendants. Such an agreement on his part -would be against public policy, within the principles above announced, and would make the agreement void. • .

On the other hand, the sale of the data and information collected by him during the existence of the partnership, as' above recited, -would .not be contrary to public policy, and would afford a good and valuable consideration for a valid agreement between the defendants in relation thereto.

Tested by the rule'announced, it cannot be said that the contract sued on is invalid. The question is one of fact to be decided on by a court, after hearing the evidence of what was done and said by the parties to the agreement in question. It is sufficient here to say-that the complaint and exhibit thereto do not, on their face, necessarily allege illegal dealings between the parties.

Hence the court erred in sustaining the demurrer to the amended complaint, and for that error the judgment must be reversed, and the cause will he remanded, with directions to o'verrule the demurrer, and for further proceedings according to law.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Flake v. State.
    Opinion delivered May 21, 1923.
    1. Criminal law — argumentative instructions. — It is error for the court to give instructions argumentative in 'form, as it is not the function of the court to argue cases.
    2. Homicide — manslaughter—instruction.—An instruction, in a murder case, that if the defendant killed the deceased in the. absence of premeditation, deliberation and malice, he must have killed him, in order to constitute manslaughter, from some overt act that deceased committed just before defendant struck the fatal blow, held not erroneous.
    3. Homicide — manslaughter—instruction.—In a murder case it was not error to charge that, if the killing was done because of the sense of wrong done to defendant’s sister, the offense was not reduced to manslaughter if sufficient time had elapsed for the passion to subside, and that the offense was not manslaughter unless there was an overt act which so inflamed defendant’s passion as to make the impulse to kill irresistible.
    4. Homicide — insanity—question for the jury. — The question whether defendant was insane held, under the evidence, to be a jury question.
    5. Criminal law — instruction as to matter of fact. — Where the court, without any foundation therefor, asked defendant, ac- ' cused of murder, in effect whether he remembered having feigned insanity and then instructed the jury to ascertain whether the defense of insanity was offered for the purpose of excusing alleged criminal acts and acquitting ■ one charged with murder, the effect was to - charge the jury in regard to matters of fact, which is forbidden by the Constitution.
    Appeal from Faulkner Circuit Court; George W. Ciarle, Judge;
    reversed.

      R. W. Robins and R. Q. Bruce, for appellants.
    The court erred in giving instruction number 4, and in refusing request of appellant to read to the jury 2354, 2355, C. & M. Digest, defining manslaughter. 102 Ark. 180. Error was committed also in refusing appellant’s requested instruction 18, and especially in giving instruction 10 after the court’s questioning- of defendant. It was a 'Comment on the testimony. 51 Ark. 147; 110 IT. S. 574, 28 L. ed. 262. The court erred in its refusal to permit counsel for appellant to say, in his opening statement to the jury, what he proposed to show in relation to mistreatment of his family by Wallace Wilson and as to occupation of Wilson. Court should not have thus indicated his view of the case to the jur3r. 43 Ark. 289; 45 Ark. 165; 133 Ark. 149; 123 Ark. 260; 55 Ark. 244.
    ■ J. 8. Utley, Attorney 'General, John L. .Carter and Wm. T.- Ilanvmoclc, Assistants, for appellee.
    No error committed in giving instruction 4 and refusing to allow read to the jury §§ 2354, 2355, C. & M. Digest. Neither was there error in refusing appellant’s requested instruction No. 18.‘ The manner of the court’s refusal to allow counsel for appellant to say what he intended to prove in his opening statement was not prejudicial. Instruction No. 10 was a correct statement of the law. 110 U. S. 574, 28 L. ed. 262, cited by appellant, not applicable. The evidence is sufficient to sustain the verdict.
   Smith, J.

This is the second appeal in this case, and a summary of the testimony may be found in the former opinion. Flake v. State, 156 Ark. 34.

^Practically the same testimony was offered at the second trial as in the first, there being testimony on behalf of defendant from which the jury could have found that defendant was insane, and that, if he did in fact kill the deceased, he did so in self-defense, or under circumstances which reduced the grade of the homicide to voluntary manslaughter. In accordance with our former opinion, instructions to the jury submitted- all these questions. Defendant was found guilty of murder in the second degree and given a sentence of twenty-one years in the penitentiary.

For the reversal of the judgment it is insisted that the court erred in interrupting defendant’s counsel in the opening statement to the jury by holding that certain statements were incompetent. But the court later admitted this testimony, and we think that action cured the error of the first ruling.

Error is assigned in giving, over defendant’s objection, an instruction numbered 4, which reads as follows: “Manslaughter is the unlawful killing of a human being, without malice, express or implied, and without deliberation. Then the distinguishing point between manslaughter and murder is the absence of malice, the absence of hatred, the absence of an act cruelly done, wickedly done, the absence of an act done without regard for the rights of a human being, and, in addition to that, it must be done upon a sudden heat of passion apparently sufficient to make the passion irresistible, hence it follows that, if the defendant killed the deceased Wallace Wilson, and lie killed him in the absence of premeditation and deliberation, and in the absence of malice, he must have killed him, in order to constitute manslaughter, from some overt act that Wilson committed just before he struck the fatal blow. If he killed him because of any difference that had existed in the past, after which sufficient time had elapsed to give his passion time to subside, it would not be manslaughter, because it could not be the result of a sudden heat of passion.”

The objection to the instruction is that the court told the jury there must have been some overt act on the part of the deceased, just before the defendant struck the fatal blow, to reduce the killing to manslaughter. Another objection to the instruction is that it is argumentative in form.

We dispose of this last objection first by saying that the instruction is argumentative in form, and ob-Actionable on that account. This is a defect which ought never to exist, as it is not a function of the court to argue cases. The court should be content to declare the law applicable to the issues of the case, and leave the argument to the attorneys. But, while objectionable as being argumentative in form, we do not reverse the judgment on that account, as the instruction contains no expression of the court’s opinion, and is a correct statement of the law under the issues joined, as will appear from our discussion of the first objection made to it.

The instruction was not objectionable in requiring the jury to find there was an overt act to constitute manslaughter. As appears from the former opinion, the defendant’s chief defense was insanity, and that defense was chiefly relied upon at the second trial. The law of that subject was fully declared, in instructions to which no objections were made, and the jury was told to acquit the defendant if they found he was insane.

The instruction numbered 4 deals with the defense of justification and mitigation. The defendant testified that the deceased assaulted him, and thus so aroused his passion as to make the impulse to kill irresistible.

There was also testimony that, in defendant’s unbalanced mental condition, he became insane by brooding over the wrongs done his sister by the deceased, her husband, one of these being he had suffered her to be ravished by his associate in the crime of making moonshine whiskey, and had made no effort to have the rapist answer for that crime before the law. So that it was not improper to tell the jury that, if the killing was done because of the sense of wrong, the offense was not reduced to manslaughter if sufficient time had elapsed for the passion to subside, and that the offense was not manslaughter unless there was an overt act which so inflamed defendant’s passion as to make the impulse to kill irresistible.

There.was another instruction, which dealt with the right of self-defense, but, of course, the whole law of the case could not he declared in a single instruction.

It is insisted, for the reversal of the judgment, that the verdict was contrary to the evidence, in that the undisputed testimony shows the defendant was insane. We do not so interpret the testimony, for, while the jury might have found defendant was insane, this was not the only reasonable view of the testimony, considered in its entirety. Indeed, this was very properly a question for the jury, and there was testimony legally sufficient to support a finding that defendant was sane, or that he was insane.

The defendant was cross-examined at great length by the prosecuting attorney, and the court finally questioned him, and the following questions were asked and answers given in response to the interrogatories of the judge: “Q. George, did you use your team or your father’s the next day after this trouble, when you were getting worried over there? A. I don’t know. Q. You did buy a team from him? A. I don’t know that. Q. When you went back to the house and told Wallace Wilson’s wife he had gone off, why did you tell her that? A. I don’t know that I told her that. Q. Who helped you cut that hay? A. I don’t know. Q. Did you drive the machine? A. I don’t remember cutting any hay. Q. Was your arm hurt pretty bad? A. I don’t know. Q. Did you tell any of the folks about your arm being hurt ? A. I don’t know that, Judge. Q. If you did cut hay the next day, your arm wasn’t hurting very bad, was it? A. I don’t know that. Q. Was your head sore? A. I don’t know that. Q. Do you remember anything about your head hurting you any? A. I don’t know. Q. When you were over here in jail and any of the parties would come up, you would go and jump in bed, cover up your head, and those darkevs would pull the cover off? A. I don’t know that. Q. Do you remember, after the jailer would go down, that you would get up and take the cover off of your head? A. I don’t remember.”

The defendant asked an instruction, numbered 18, reading as follows: “You are instructed that you should disregard the question asked by the court of the defendant regarding the defendant covering up his. head in bed while in jail when the sheriff would come into the jail and then uncovering and getting up when the sheriff would leave.”

The court refused this instruction, but gave, over defendant’s objection, an instruction numbered 10, reading as follows: “Now, it is a principle of the law generally that any person who is incapable of distinguishing between right and wrong, or who is incapable of controlling their passion because of a diseased condition of the mind, that they cannot be held accountable and responsible, but it is always incumbent upon them to establish that fact by a preponderance of the evidence, and in determining this question you have a right, and it is your sworn duty, to exercise your common sense, your good judgment and your every day experience in weighing and considering this testimony, and ascertain whether or not such defense is interposed in this case to excuse one who, under the contentions of the State, has taken the life of his fellow man, and is offering, for the purpose of excusing his own alleged criminal acts, or whether such diseased condition of mind existed prior to and at the time of the taking of the life of the deceased. In other words, ascertain from the testimony, from the circumstances, from the surroundings, from the acts of the deceased and the defendant, whether or not this defense is interposed here ■ at this time in an honest belief of the existence of its merits, or whether interposed for the purpose of acquitting a man charged with the offense of murder in the first degree, and the other degrees of murder, as included in this indictment.”

It is now insisted that the court’s questions, in ' connection with instruction numbered 10,' constituted a comment on- the testimony. And we have concluded that such is the case. Instruction numbered 10 is argumentative in form, and objectionable as -such, but, read by itself, it contains no expression of opinion, and we would not reverse the judgment for the giving of this instruction if it did not appear to constitute a comment on the testimony, when read in connection with the examination of the defendant by the court.

The court’s questions are very significant. If defendant did what the questions imply, then he was probably feigning insanity. We find no predicate in the testimony of any witness in the case for these questions. No witness had testified that the defendant had done the things there inquired about. The trial court was right to ask questions, and it is not an improper thing to do when the testimony is obscure_upon some point; and it is also proper to develop the facts in regard to some feature of the case which the court thinks has no’t been properly developed'.

The court’s questions did not tend to remove any obscurity. Indeed, they have the opposite effect. One cannot tell the purpose of the questions unless-they were intended to develop some point about which the court had personal knowledge but about which no witness had testified. It does not appear who the parties were who apparently caught defendant feigning insanity by jumping in the bed and covering up his head, and the court’s questions did not ask the defendant merely if he did this, but asked him if he remembered doing it, the clear intimation being that he had done the thing inquired about. This questioning, when followed by an instruction for the jury to ascertain from the testimony, from the surroundings, from the acts of the deceased and the defendant himself, whether or not the defense of insanity is interposed honestly or for the purpose of acquitting one charged with murder, constitutes, in our opinion, a comment on the testimony.

The trial court is forbidden by the Constitution from charging juries in regard to matters of fact, and, as we think there has been an infringement of this provision, the judgment is reversed, and the cause is remanded for a new trial.


text:
    Stevenson v. John J. Grier Hotel Company.
    Opinion delivered May 21, 1923.
    Innkeepers — ejection op guest — complaint.—A complaint against a hotel company by a guest, alleging that she had been wrongfully ejected by the manager of the hotel, and that in the presence of numerous people he had used insulting and abusive language to her, causing her great worry, humiliation and distress of mind, held to state a cause of action.
    Appeal from St. Francis Circuit Court; J. M. Jáchson, Judge;
    reversed.

      Pretoett Semmes, for appellant; Chas. M. Bryan and George E. Neuhardt, of counsel.
    The court erred in sustaining the demurrer to the complaint; could recover for mental anguish without actual physical injury. 84 Ark. 42, 104 S. W. 551; 89 Ark. 187, 116 S. W. 192; 120 Ark. 54, 178 S. W. 401; 108 S. E. (Ga.) 309; 228 N. Y. 106, 126, N. E. 647; 131 N. E. (Mass.) 475; 22 Minn. 90; 14 R. C. L. 506.

      Buzbee, Pugh & Harrison, for appellee.
    The demurrer was properly sustained. Recovery can not be had for mental suffering and humilation alone, unaccompanied by physical injury or other element of recoverable damage. 64 Ark. 546; 67 Ark. 129; 70 Ark. 143; 84 Ark. 43; 89 Ark. 188; 94 Ark. 489; 33 Ark. 360 ; 76 S. W. (Tes. App.) 586.

      Pretoett Semmes, in reply; Charles M. Bryan, George E. Neuhardt and Arthur G. Broclie, of counsel.
    Cases cited by appellee have no especial bearing upon case at bar, which is ruled by 120 Ark. 54.
   Smith, J.

Appellant was plaintiff below, and, for lier cause of action, alleged the following facts: The defendant corporation operates a hotel in the city of Forrest City known as “The Marion Hotel,” and on July 31, 1922, plaintiff and her husband, J. W. Stevenson, registered there as Mr. and Mrs. J. W. Stevenson, Memphis, Tenn. They paid for their’ accommodations in the usual and customary manner, and, as guests of the hotel, were assigned to a room, which they occupied for the night. On the morning of August 1, 1922, while plaintiff was in the room to which she had been assigned, in company with her husband, the manager of the hotel, ’ the duly authorized agent of the defendant,' came to the room occupied by her as a guest of the hotel, and ordered her out of the room and out of the hotel, using Insulting and abusive language which imputed adultery to the plaintiff, and which caused her great worry pnd distress of mind, and, although she insisted she and Stevenson were legally married — as they, in fact, were — she was ordered out of the hotel by the'manager, who ridiculed her statement that she was the wife of Stevenson. That the manager of the hotel conducted plaintiff and her husband to the lobby of the hotel, and there, in the presence of mumerous people, again abused her and used insulting language towards her, which was calculated to, and did, leave the impression on the minds of those hearing the language used that plaintiff liad been guilty of adultery in defendant’s hotel.

Plaintiff further .alleged that she and Stevenson had been legally married for twenty years, and that she was conducting herself in the hotel in a proper manner, and gave no cause to the manager to abuse or evict her, and that the hotel catered to the public and was held out to the public as furnishing accommodations to all who should apply in the ordinary and usual manner. That the conduct and action of defendant’s manager in evicting her- from the hotel caused her great worry, humiliation and distress of mind, and was a slander upon her character and virtue, and caused her to be the object of public shame, humiliation and degradation, and exposed her to the ridicule, vulgarity and gossip of all who heard such language and witnessed her eviction from the hotel. She further alleged that the manager’s conduct was wilful, wanton and malicious, and she prayed for damages, both compensatory and punitive.

To this complaint the defendant demurred on the ground that the allegations of the complaint were not sufficient to constitute a cause of action. The demurrer was sustained, and, plaintiff declining to amend or plead further, the complaint was dismissed.

The action of the court below is defended upon the ground that the complaint sues for mental suffering and humiliation alone, unaccompanied by any physical injury or other element of recoverable damages, and we are cited to several decisions of this court holding there can be no recovery in such cases.

Among the cases so cited is that of Chicago, R. I. & P. Ry. Co. v. Moss, 89 Ark. 187, in which the court held that a passenger whose baggage had been carried beyond his destination, and who had suffered an actual loss on that account, could not recover for the mental suffering occasioned by the insulting conduct of 'the employee of the carrier who was responsible, for the miscarriage of the baggage, for the reason that there was no connection between the’ recoverable element and the mental suffering, and the latter could not be sustained as an independent cause of action.

The court in so holding recognized that the physical injury need not be actual in all cases, but might in some cases be constructive, and it was there said: “There are many cases in the books where there is a constructive physical injury, such as duress, ejection from trains, etc., where there is no physical violence, but an actual restraint or coercion of the person. In such cases, and possibly others, it would not be sound to hold that, merely because the finger was not, laid upon the lapel of the coat, there can he no recovery for the wrong done, including the mental suffering resulting from such duress or coerced ejection.”

What was there said is applicable here. There was here a constructive physical injury, for there was an actual restraint and coercion of the plaintiff. In violation of the duty owing to plaintiff, the defendant ejected her from the hotel, and this was a constructive physical injury. The law did not require her to continue her explanations and protestations to the point where the restraint and coercion would have become actual, rather than constructive. When she saw the right to remain in the hotel as a guest would not he accorded her, she had the right to minimize her damages by leaving before actual physical injury was inflicted, and defendant will not be heard to complain that plaintiff obeyed the command of its manager.

The principle applicable is that announced in the cases of Chicago, R. I. & P. Ry. Co. v. Allison, 120 Ark. 54; Hines v. Rice, 142 Ark. 159; and St. Louis-S. F. Ry. Co. v. Smith, 155 Ark. 519.

A cause of action was stated, and the demurrer should have been overruled, and the judgment of dismissal is reversed, and the cause remanded, with directions to overrule the demurrer.


author: McCulloch, C. J.

text:
    Southern Trust Company v. Bunch.
    Opinion delivered April 30, 1923.
    1. Brokers — eight to commission. — If, at a time a broker makes a sale of property, he has knowledge or information of defects in the title, and by reason of these defects the sale cannot be made effective, he is not entitled to his commissions. ■
    2. Brokers — right to commission. — A suit to set aside a conveyance from husband to wife as in fraud of his creditors is not a mere incumbrance on her title which she could remove so as to entitle her broker to his commission for procuring a purchaser to buy the land.

      Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      J. II. Carmichael, for appellant, Southern Trust Co".'
    The controversy, so far as appellant is concerned, involved only a 'commission as real estate agent earned by the sale of the lots in accordance .with a' contract therefor. Bunch and wife were unable to make a marketable title because of suit of appellee, Empire Cotton Oil Co., but that does not release them from payment of the earned commission. 89 Ark. 289, 20 L. B. A. (N. S.) 1168; 128 Ark. 14; 131 Ark. 580; 132 Ark. 381; 112 Ark. 570. Bight not affected by Sou+1'ern Trust Company’s knowledge of suit of Empire Cotton Oil Co. 4 B. C. L., § 51, Brokers; 24'L. B. A. (N. S.) 1182; 3 L. B. A. (N. S.) 576, and note; 37 Pac. 199. This case as between the Southern Trust Co.,-appellant, and appellees, T. H. and Laura L. Bunch, should be reversed and judgment entered here in its favor, and the attachment sustained.

      Rose, Hemingway, Cmtrell & Loughborough, for appellees.
    Broker had knowledge of defect in the title before securing the purchaser, and is not entitled to 'commission. 9 Corpus Juris 629; 109 S..E. (Va.) 468; 43 S. W. (Tex.) 929; 161 N. W. (Mich.) 876; 130 S. W. (Tex.) 227. 37 Pac. 199 stands alone without reason or authority to support it, and Arkansas cases 'cited not applicable on facts of this case.

      J. H. Carmichael, in reply.
    Appellees bound by their contract to furnish abstract showing merchantable title. 152 Ark. 192; 145 Ark. 262. Bight to recover commission depends on service of the broker under the contract, and is not defeated by a defect in the title to the property sold. 149 Arln 382.
   McCulloch, C. J.

Appellant, Southern Trust Company, a banking institution doing business 'in the city of Little Bock, was joined as one of the defendants in the suit'instituted by Empire Cotton Oil Company against T. H. Bunch and wife, Laura L. Bunch, to subject certain real estate in the city'of Little Rock to the payment of a debt due by T. H. Bunch to the Empire Cotton Oil Company. The present appellant was joined in the action by reason of the fact that it held the legal title, as trustee, and also held a mortgage on the property, executed to it by Bunch and wife. There was a decree in favor of the Empire Cotton Oil Company-, deciding- that the property had been frauduently conveyed or attempted to be conveyed to Laura L. Bunch to defeat the creditors of T. H. Bunch, and subjecting the property to the indebtedness held by the Empire Cotton Oil Company. The decree, however, was subject to the prior incumbrance of the appellant Southern Trust Company. Appellant filed a cross-complaint in that action, alleging that T. Ii. Bunch and Laura L. Bunch were indebted to it in the sum of $2,500 as earned commission for procuring a purchaser of the property under written contract. Appellant set up a contract between it and the appellees, T. H. Bunch and Laura L. Bunch, authorizing appellant to .sell the property for a commission of five per centum, and it was alleged that it produced a purchaser ready, willing and able to take the property, but that the deal was not consummated for the reason that a marketable title was'not furnished by appellees.

The facts concerning the difficulties in which the Bunches were in are recited in the opinion handed down today in Bunch v. Empire Cotton Oil Company, 158 Ark. 462. Briefly stated, the facts are that T. H. Bunch had acquired the title to the property involved partly by purchase and partly by inheritance, and had conveyed the property to W. B. Worthen Company as trustee, the deed failing to disclose, however,"the purpose of the trust, and it was claimed that the W. B. Worthen Company held the beneficial interest as trustee for Mrs. Bunch. In the'final decree the chancery court held that the attempt to put the beneficial 'interest in Mrs. -Bunch was fraudulent-, and the property' was decreed' to be subjected to the' .debt of the Empire Cotton Oil Company. Tbe W. B. Worthen Company had, prior to this litigation, conveyed the property to the Southern Trust Company, and Bunch and wife had executed to the Southern Trust Company, or to a trustee for its benefit, the property as security for a debt aggregating at that time something over $60,000.

The real estate department of appellant had been managing the property since it was mortgaged in the year 1913, and after Bunch and wife removed from Little Rock, about the year 1916, or a little later, they became anxious to sell the property, and entered into a contract with appellant to find a purchaser and effect a sale.. A sale was. negotiated to E. O. Bagley for an agreed consideration of $50,000, and Bagley made a deposit of $500 to close the deal. Bunch and wife executed a deed. to Bagley and forwarded it to appellant from New York, where they resided, but Bagley’s attorney declined to approve the title on account of the pendency of the action instituted b3r the Empire Cotton Oil Company. This broke up the deal, and the sale was not consummated.

The contract between appellant and appellee was dated May 17, 1920, and provided that appellee should “have the sole and exclusive agency of sale for said property for a period of three months from this date, and thereafter until notified * '* * of its withdrawal from sale,” and that appellees should “furnish complete abstract showing merchantable title.”

The action of Empire Cotton Oil Co. against ap-■pellees was instituted on August 20, 1920, and the sale to Bagley was negotiated by appellant on November 22, 1920, which was after the expiration of the period prescribed in the contract for the agency to be exclusive and irrevocable. . .

Appellant claims the right of recovery on the ground that it furnished a purchaser ready, willing and able to take, the property and who was accepted by ap-pellees, and a binding contract was entered into, but the sale was frustrated by the failure of appellees to furnish a marketable title. The .contention of counsel for appellant is that the claim of the Empire Cotton Oil Company was merely an incumbrance on the property, and that it was the duty of appellees, Bunch and wife, to remove it so as to make the title marketable.'

Counsel for appellees contend that appellees are relieved from liability for the commission on account of the failure to furnish a marketable title for the reason that the defect was known to appellant at the time it negotiated the sale to Bagley. The authorities seem to sustain this rule, and it appeals to us as being one highly just and reasonable. The rule has been stated in a Virginia case as follows

“If at the time a broker makes sale of property he has knowledge of, or information of defects in the title, and by reason of these defects the sale cannot be made effective, he is not entitled to his commission.” Foltz v. Conrad Realty Co., 131 Va. 496, 109 S. E. 468. See also Hoyt v. Shipherd, 70 Ill. 309; Appleby v. Sperling, 194 Mich. 681, 161 N. W. 876; Wilson v. Crawford, 61 Tex. Civ. App. 508, 130 S. W. 227.

It is contended, on the other hand, by counsel for appellant that this rule does not apply where .the defect is a mere incumbrance which can be removed by the vendor; We do not, however, think that the pendency of litigation with the Empire Cotton Oil Company can be treated as a mere incumbrance, for the debt was not that of Mrs. Bunch, and she was contending that the property belonged to her. It is true that the chancery court subsequently decided that the property should be subjected to the payment of the debt of plaintiff in the case, but the situation constituted a defect in the title which prevented it from being marketable, and it was not a mere incumbrance which imposed upon Mrs. Bunch the duty to remove in order to carry out the contract of sale negotiated by appellant. Appellant was acting as -the rental agent of Bunch, and managed the property Its officers knew of the pendency of this suit and knew that it was being resisted on the ground that Mrs. Bunch claimed the property. In other words, it was aware of the fact, When the sale was negotiated, that, if the purchaser insisted upon a removal of the defect created by the litigation with the Empire Cotton Oil Compaq, the sale could 'not be effected, and this knowledge prevents a recovery of the commission, and brings the case within the rule announced in the authorities just cited. The fact is unimportant that the contract between the parties provided for an exclusive agency for a definite period for the sale of the property (Blumenthal v. Bridges, 91 Ark. 212), for the reason that the period prescribed for an exclusive agency had expired when appellant negotiated the sale to Bagle}1', and the agency was revocable at that time. The effect of appellant’s knowledge at that time of the defect in the title was the same-as if it had possessed that knowledge at the time of the original contract. The court was correct therefore in refusing to decree a recovery of the commission.

Affirmed.


author: Wood, J. McCulloch, C. J.,

text:
    Inter-Southern Life Insurance Company v. Coffee.
    Opinion delivered April 30, 1923.
    1. Insurance — questions for jury. — Evidence held to justify submission to the jury of the issue whether the delivery of .a policy, of insurance by an agent was through a mistake or inadvertence on the agent’.s part, and, if a mistake, whether or •"ot it was caused by following the instructions of those who had authority to direct him in the premises.
    2. Insurance — liability of agent. — An agent of an insurance company is 'liable to the company if he' or a messenger selected by him delivers a policy in violation of his contract of agency.
    3. Insurance — liability of agent. — An insurance agent would not be!liable to ■the'insurance company for a breach of the contract of agency in delivering a policy to insured while not in good health, if such delivery was made under instructions of agents of the company authorized to direct him in regard thereto.
    Appeal from Johnson Circuit Court; A. B. Pricldy, Judge;
    affirmed.

      Patterson & Rag on and Hays, Ward & Hays, for appellant.
    The court erred in giving instruction numbered 4, telling the jury that the policy was delivered, instead of leaving the question for the jury to pass on. On the testimony, a verdict for appellant should have been directed. The beneficiary in the policy that was wrongfully delivered had collected the insurance. 149 Ark. 517.' No evidence upon which to base instructibn No. 5. Ap-pellee disregarded his instructions as agent, and is liable to his principal for loss or damage resulting therefrom. 2 C. J. 715; 104 Mass. 152, 6 Am. Ry. 207; 114 Ark. 18; 90 Ark. 301. The judgment should be reversed, and judgment entered here for appellant.

      Paid M.cKewnon, for appellee.
    The instruction to the agent were ambiguous .and cápable of different constructions, and if the agent made an honest mistake in trying to carry them out he is not liable. 31 Cye. 1454,1455-1460. No error in instructions to the jury, and its verdict should not be disturbed.

      Patterson & Rag on, and Hays, Ward & Hays, in reply.
    The agent disregarded clear and written instructions susceptible of but one construction, and the damage resulted and he is liable therefor. 120 N. W. (N. Dak.) 545] 22 L. R. (N. S.) 509; 100 N. W. 524.
   Wood, J.

This action was instituted by the appellant against the appellee to recover the sum of $1,000, the amount of the policy of insurance which appellant alleged it had been compelled to pay to Mrs. Ransomi. The. appellant alleged it issued its policy and mailed the same from its home office at Louisville, Kentucky, to its agent, Coffee, at Clarksville; that with the policy was inclosed a receipt which reads as follows: "Policy No. 87363 for Isaac H. Ransom has been received by me while in sound health, is as represented, and is satisfactory.

"Insured. 1920
"Date policy delivered..”
"Also inclosed with the policy was the following direction to the agents: ‘Agents must have this receipt dated and signed by policy owner and mailed immediately to home office’.”

Pasted to the policy was a green slip which provided:

"This policy shall not take effect until it shall be personally received by the applicant and satisfactory settlement of the first premium has actually been made, all within the lifetime and during good health of the applicant. If the applicant is not in good health at the time the policy is received, it should be held subject to the company’s order, and notice to that effect immediately sent to the company at its home office in Louisville, Ky.”

The appellant alleged that Coffee, in violation of his contract as agent and contrary to instructions as above set forth, tore from the policy the notice as above set forth, and failed and refused to present the receipt as set out above; that the agent knowingly and fraudulently failed to present the receipt to Ransom, because such agent knew at the time that Ransom was suffering from a fatal sickness; that bv such negligence and fraudulent conduct on the part of Coffee he permitted a valid contract of insurance to be consummated imder which the appellant was compelled to pay the sum above mentioned. for which it asked judgment.

The appellee, in his answer, admitted that he was appellant’s agent under a contract 'which became effective on the 13th day of August, 1920, which contract was signed by the appellee and Fred W. Bailey, State agent of the appellant for Arkansas. He admitted that, on the 13th day of July, 1920, Isaac H. Ransom made application to the appellant for a policy of insurance upon his life, and denied the other material allegations of the complaint.

The testimony for the appellant tended to prove that the manager of its Southwestern Department, which embraced in its territory the States of Arkansas ■and Oklahoma and seventeen counties in Tennessee, was Fred W. Bailey, with office at Memphis, Tennessee. He testified that he was general manager of all local agents in Arkansas, so far as producing business is concerned. He gets all the local agents and manages them. He made the contract with appellant, subject to the approval of Ms company, which contract the company approved. This contract, among other things, provided: “The agent agrees that he will not deliver a policy of insurance where he has reason to believe that a change has occurred in the applicant’s health or other conditions have arisen that would affect the desirability of the risk, but that he will return the policy to the home office and await instructions.” The appellant also had a contract with agents in the Arkansas territory, Baker and Kavanaugh, which contract was a duplicate of that of the appellee. Bach of these agents was furnished a rate book which contained, among others, the following instruction: “A. If any unfavorable change has taken place in applicant’s health, occupation, surroundings or family history since he was examined,, the agent must not accept premium and deliver policy, but must promptly return policy to home office,” etc.

The appellant issued two postcard receipts with each policy, one of which was to be returned to the State agent at Memphis, and the other to the home office at Louisville. The form of the receipt is as above set forth. It was the duty of the local agent to have the receipt dated and signed by the policy owner and to mail the same to the home office. The appellant issued a policy upon an application of Ransom, which was taken by its agents, Coffee and Kavanaugh. Kavanaugh was directed by the manager at Memphis to go to Clarksville and assist Coffee in securing applications. Witness was asked why Kavanaugh would be working with some new man and in what particular he gave the new man instructions, and answered, “Nothing other than he familiarized himself' with our various policy forms and how the rates were figured and the settlements made— how we filled out applications and what disposition was made of them when they were filled out, and what -disposition was made of the policy, and the way it was delivered when the policy was issued.” He was asked the. following question: “Did Mr. Kavanaugh have any authority to direct Mr. Coffee in regard to what his contract of agency was or meant?” and answered, “No, he didn’t have any authority. He just showed him the way that we done it — the way we handled business.” The only object of Kavanaugh’s work with Coffee was to assist Coffee in producing business.

The policy insuring the life of Ransom for $1,000, hi-s wife being the beneficiary, was mailed from the office at Memphis. The application was secured on the 13th day of July, 1920. At that time Ransom was engaged in the coal.mining business, a hazardous occupation, and on that account the appellant did not issue the particular kind of policy 'called for in his application, but instead mailed to its agent, Coffee, a different kind of policy from that applied for, with directions to deliver the same to Ransom. Pasted in the policy when it was mailed out was the notice set out above. The appellant never received the postcard receipt above mentioned which was to be signed by the insured and sent to. its manager. At the time the application was procured Ransom was in good health, but before the policy was received by the appellee for delivery Ransom was stricken .with typhoid fever. Coffee did not deliver the policy in person to Ransom and take a receipt therefor, but instead gave the policy to one Mardis, an employee of Ransom, and directed him to deliver the policy to Mrs. Ransom. Coffee knew at the time that Ransom was sick.

It was shown on behalf of the appellant that Coffee said he tore off the green slip pasted to the policy and had not had the receipt card signed, giving as his reason that he was not going to permit Mrs. Ransom to forge Ransom’s name on the card when Ransom was sick. It was also proved that at the end of a lawsuit the appellant had to pay Mrs. Ransom the amount of the policy, which the appellant here seeks to collect from the appellee.

Kavanaug’h testified on behalf of the appellant that lie lived in Memphis; that-he had the same contract with the appellant that Coffee had. He worked with Coffee in Johnson County to produce business -for both of them. He was not giving Coffee any instructions. Sometimes he was sent out of the Memohis office, and other times went of his own accord. Bailey, the manager, suggested that witness go over to Johnson County — that he could get business over there. -Witness’ and Coffee’s names were signed to the application.

The appellee testified that he had'a conversation with Bailey about the agency. He supposed Bailey approached him because of his connection with the Bank of Clarksville. He had verbal agreement with Bailey that lie'was to take’the agency of the appellant in Johnson County with men whom Bailey would send. Those men were usually termed “high power” or “high pressure” men whose'business it would be to solicit and sell insurance to people to whom witness would' introduce them. Appellee was to introduce them to at least ten men per day and was to share in the profits of the business they wrote. Kavanaugh came' and spent about three weeks with the appellee. Baker came into the county and was- working with another agent at Cabin' Creek. Appellee introduced Kavanaugh to Ransom, and Kavan-augh-signed appellee’s name to the application. Appel-lee received the policy on the 25th of August, 1920. Mardis, who was in the employ of Ransom, told appellee that he thought Ransom was sick, and that he was going by to see him. Appellee hardly knew what to do about it, since Mardis said that Ransom was sick. After consulting with Baker, he asked Mardis if he would take the policy with him and turn it over to Mrs. Ransom. The policy received was not the kind that Ransom had applied for, and the appellant had written Kavanaugh with reference to it, and Kavanaugh inclosed that letter to appellee with the following note. “Mr. Coffee: I would show this letter to Mr. Ransom, and if he does not accept this contract he is certainly foolish, for it is the very best any good company will do for him. With personal regards to yourself and Mrs. Coffee, I remain, 0. C. K.” Also in the letter was the following: “I trust that you will make this clear to Mr. Ransom, and that you will be successful in delivering same, or, as per our talk, you might get Mrs. Ransom to carry same herself for the boy in case he will not carry it.” That letter had been received by the appellee before he gave the policy to Mardis to give to Mrs. Ransom,. Appellee requested Mardis to hand the policy to Mr. or Mrs. Ransom, but to tell them not to sign this receipt for it, because appellee didn’t consider it as a delivery, and the receipt was worded in such a way that they would have had to sign a falsehood, should they sign it, and appellee didn’t want that to happen. The agents had a period of sixty days in which to make delivery of policies, and at the end of that time had to make delivery or settlement and return the policies to the company. Appellee further testified that he didn’t recall that he had told any one that he had torn the green slip out of the policy. He didn’t remember whether the green slip was in there or not when he gave the policy to Mardis. He turned the policy over to Mardis, not to be. delivered to the Ransoms, but merely to submit to them for approval or rejection, because it was a different policy than he had applied for, and Ransom had a right to exercise Ms judgment as to . whether lie would -take, a different policy from that applied for. Appellee didn’t make any further inquiries to find out the condition of Ransom, nor did he say anything to Mardis about getting the policy hack.

On cross-examination appellee further stated that he testified in the litigation between Mrs. Ransom and the appellant, and that, if he testified in that case that he tore the notice out, it ivas correct; that the notice was not a part of the policy at all. It was only a notice to the agent, and witness thought it would not affect the policy if it was torn out. It was only a notice to the appellee as to the disposition to be made of it. If witness removed it. he had a. right to do so, and put it in his pocket or on Ms file. Further along in his testimony witness stated that the agents had a right to leave the policy with the applicant for insurance sixty days for approval or rejection; that it always had been appellee’s custom.

The appellant in a number of instances sent a different policy than was applied for, and the policies were submitted to the applicants for their approval or rejection. The testimony of Mardis, Mrs. Ransom and witness Cobb, who were present when Mardis gave the policy to Mrs. Ransom, was to the effect that Mardis turned the policy over to Mrs. Ransom and told her that Coffee had sent it to her to look over; that it was -sent for their approval or disapproval, and that the receipt was not to be signed because Ransom was sick.

At the conclusion of the testimony the appellant asked the court to direct the jury to return a verdict in its favor, which prayer for instruction the court refused, and to which ruling the appellant excepted.

Among other instructions, the court on its own motion gave the following:

“4. The court instructs you, gentlemen of the jury, that, under the terms of the contract here and under the evidence, Mr. Coffee was tire agent of tlie InterS.oúthern Life Insurance Company to deliver tliis policy. The court instructs you that this policy was delivered under the law.”

And also instruction No. 5, which, in effect, told the jury that the only question for them to consider was whether or not the policy was delivered intentionally or by mistake or inadvertence, and, if delivered by mistake or inadvertence, whether such mistake or inadvertence was caused by Coffee undertaking to carry out instructions delivered to him by any person who had any au-tliority to direct him in the premises. In this instruction the court told the jury that if Coffee delivered the policy by mistake, that is, if he didn’t intend to deliver it while the man was sick, 'he would be responsible to the company for such mistake or inadvertence, unless, in making shell mistake, he was carrying- out instructions of some agent of the company who had authority to direct his actions.

Among other prayers for instructions, the appellee asked the following: “If you find from the evidence that the defendant did not deliver the insurance policy to the deceased. Isaac Ransom, but sent it to Mrs. Ransom to be examined and approved by her before accepting it, then y'ou are instructed that the plaintiff can not recover, hud your verdict should be for the defendant.” The court refused this prayer.

The jury returned a verdict in favor of the appel-lee against the an-nellnnt. Judgment was rendered in his favor, from which is this appeal.

■■ The coui’t erred in giving instruction No. 4 on its own motion, because, under the evidence, it was an issue for the jury to determine whether or not the policy was delivered to Ransom, and the court should not have declared that, under the law, the policy was.delivered, and should have given the prayer of appellee above mentioned. However, instruction No. 4 was in favor of the appellant, and it could not, and does not, complain because the court gave it. But appellant contends that, after the court gave this instruction, it should have further de-. dared as a matter of law that, under the terms of the contract of agency, which were written and unambiguous, there could be no recovery in favor of the appellee against the appellant for the reason that the contract of agency forbade the appellee from delivering the policy when he knew that the insured was not in good health at the time the policy was delivered. This contention of the appellant cannot be sustained. While the contract of agency, and the receipt to be signed by the insured when the policy was delivered, and what is called the green slip attached to the policy, all provided, in effect, that there was not to be delivery of the policy while the insured was in bad health, nevertheless, there was testimony in this record which warranted a finding that the policy was delivered by the appellee to Mrs. Ransom, not for the purpose of consummating a contract of insurance between appellant and Ransom, but only for the purpose of permitting Ransom to look over the policy to see whether same would be accepted by him. There was testimony on behalf of the appellee tending to prove that, before he sent the policy to Mrs. Ransom, lie received the- letter from the Memphis office' inclosing the policy; that this policy was not the same as the one applied for by?' Ransom; that the letter contained directions to show the letter to Ransom, stating that'if he didn’t accept the contract inclosed he was certainly foolish, for it was the veiy best any company would do for him. The letter contained the statement: “I trust you will make this clear to Mr. Ransom, and that you wili be successful in delivering same, or, as per our talk, you might get Mrs. Ransom to carry same herself for the ■boy in case he will not carry it.” When this letter came, the appellee states that he did not know what to do about it, but, after talking with another agent, he concluded to send it to Mrs. Ransom for her approval or rejection. Appellee testified 'that he instructed-his messenger to hand- the -policy to Mr. or Mrs. .Bansom, but to tell- them not to sign the receipt because -the appellee didn’t consider the same- a delivery, and he didn’t want them to sign the receipt, because if they did they would be telling a falsehood, which he didn’t want to happen. He testified that Ransom had said distinctly that he wouldn’t accept that kind of a policy, and that his purpose in sending the same to them was, not as a delivery, but merely to submit to them for approval or rejection, because it was a different policy than that Bansom applied for. He further stated that Ransom had a right to keep the policy sixty days to see whether he wanted it or not; that the agent had that right; that it had always been appellee’s -custom. He further testified that the appellant in a number of instances had submitted policies to applicants in this way for their approval or rejection.

The above-testimony of the appellee, which was not disputed, and other testimony set forth above which it is unnecessary to further reiterate, justified the court in submitting the issue to the jury, as to whether -or not the delivery of the policy by the appellee was through a mistake or inadvertence on the part of appellee, and, if a mistake, whether or not it was -caused by underták-ing to carry out the instructions of those who had authority to direct him in the premises. Under the contract of -agency between the appellant and the appellee the appellee was intrusted with the duty of delivering policies, and, if he made a mistake, intentional or unintentional, in delivering the policy to Ransom, contrary to the contract of agency, resulting in damage to the appellant, he would be liable for such damage. Since Mardis was the messenger selected bjr the ap-pellee, any mistake that Mardis may have made in delivering the policy in violation of the contract of agency, appellee would be responsible for. Inter-Southern Life Ins. Co. v. Ransom, 149 Ark. 517-527. But the undisputed testimony shows that Mardis carried out strictly the directions of the appellee. He delivered the policy to Mrs. Ransom with -instructions that he did so for the purpose of enabling them to look it over to see whether or not they would approve it. As we have already stated, under the evidence in this record the court erred in declaring as a matter of law that there had been a delivery of the policy. But, conceding that there was a delivery, such, delivery would not make the appellee liable to appellant for a breach of the contract of agency where the appellee delivered the policy under instructions of agents of the appellant who had authority to direct him in the premises. If the appellee delivered the policy under such circumstances, he was not liable to the appellant for so doing. Under the testimony this was an issue of fact for the jury.

The instructions of the court are not happily drawn, but it cannot be said that they are prejudicial to appellant. We are convinced that the court did not err under the evidence in refusing appellant’s prayer for a peremptory instruction. The appellant did not ask any other prayers for instructions.. The court did not err in submitting to the jury the isue as to whether or pot the appellee, under the testimony, was liable to the appellant, and it occurs to us that the charge of the court, considered as a whole, fairly submitted this issue to the jury. The judgment is therefore correct, and it is affirmed.

McCulloch, C. J.,

(dissenting.) According to the undisputed evidence, liability was imposed on appellant by the wrongful act of its agent, Coffee, in delivering the Ransom policy contrary to instructions. It is undisputed that appellant sent the policy to Coffee with instructions not to deliver it unless Ransom was in good health; that Ransom was desperately ill with typhoid fever when Coffee received the policy, of which the latter was aware, and that, notwithstanding this knowledge; he turned the policy over to Mardis, who was Ransom’s employer, and that Mardis left it with Ransom’s wife, where it remained until Ransom’s death.

Coffee’s agency required of Trim the exercise of sound judgment and discretion, and lie liad no right to delegate that authority to Marclis, especially since the latter was Ransom’s employer and was interested in Ransom’s welfare. By turning the policy over to Mardis and delegating to him authority to leave it.with the Ransoms, he not only made it possible for liability to be wrongfully imposed on appellant, but lie was also guilty of misconduct in leaving the policy in the hands of Ransom’s wife, the beneficiary thereunder, until death occurred and liability of appellant matured — a period of several weeks.

Appellee undertakes tp justify his conduct by saying that the company had in other instances left policies with the assured merely for inspection. This is no justification, for appellee’s instructions were in writing, and were very plain, to the effect that the policy should not he delivered unless the assured be in sound health. Even if appellant saw fit, in other instances, to deliver policies merely for inspection while the insured was in good health, it certainly gave appellee no implied authority to deliver a policy for inspection to the wife of an assured who was ill with such a dangerous disease as typhoid fever.

On the "face of these facts, appellee was guilty of negligence which made him responsible to his principal for the loss that was sustained.

The case presents a clear instance where the' appellant has been whipsawed. In the trial of the former action of the beneficiary, Mrs. Ransom, against appellant, it was proved that the policy was delivered, and now ap-pellee attempts to prove that he did not intend to deliver the policy so as to put it in force, but merely left it with Mrs. Ransom for her to determine whether or not she would accept it, and left it there until after her husband died.

I think that, according to the undisputed testimony, appellee should hear the loss, for the reason that it was caused by his own misconduct. • -

Smith, J., concurs in the views here expressed.