text:
    Dooms v. State.
    Opinion delivered April 21, 1924.

      1. Seduction — indictment.—An indictment charging defendant with “seduction, committed as follows: unlawfully and feloniously did have carnal knowledge of one W.”, etc., sufficiently alleges that defendant did have carnal knowledge of the prosecutrix, within the requirement of Crawford & Moses’ Dig., § 3013.
    2. Seduction — corroboration of prosecutrix. — In order to convict one for seduction, it is necessary that the testimony of the prosecutrix be corroborated both as to the promise of marriage and the act of sexual intercourse, but only such corroboration is required as, in the nature of the case, is obtainable, and, when produced, though circumstantial and slight in character, the case is for the jury.
    3. Seduction — corroboration of prosecutrix. — -In a prosecution for seduction, evidence as to the birth of a child to prosecutrix and also constant association and courtship between defendant and the prosecutrix for a long time, with numerous opportunities for sexual intercourse, held sufficient corroboration of prosecutrix.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      Robert J. White, for appellant.

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

Appellant was indicted, tried and convicted for the crime of seduction, in the circuit court of the Northern District of Logan County, and was adjudged to pay a fine of $50 and serve a term of four years in the State Penitentiary as punishment therefor, from which is this appeal.

Appellant’s first contention for a reversal of the judgment is upon the alleged ground that the indictment fails to charge that he unlawfully and feloniously did have carnal knowledge of one Yerna Willis. The indictment, omitting the caption and signature of the prosecuting attorney, is as follows:

“The grand jury of Logan County and Northern District, in the name and by the authority of the State of Arkansas, accuse Henry Dooms of the crime of seduction committed as follows: Unlawfully and feloniously did have carnal 'knowledge of '.one Verna Willis, a single and unmarried female, by virtue of a false and feigned expressed promise of marriage. He, the said Henry Dooms, then and there being single and unmlarried man. Against the peace and dignity of the State of Arkansas.”

We think to charge appellant with “seduction committed as follows: unlawfully and feloniously did have carnal knowledge of one Verna Willis,” was tantamount to charging him with unlawfully and feloniously having carnal knowledge of one Verna Willis. It is true that,. under § 3012 of Crawford & Moses’ Digest, an indictment must be certain and direct as to the party and offense charged, the particulars thereof, and the county in which committed, but, under § 3013 of said1 Digest, an indictment is sufficiently definite if it can be understood therefrom that it was found by a grand jury impaneled in a court having jurisdiction of the crime, if the offense was committed within the jurisdiction of the court before the finding of the indictment, and if the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according* to the right of the case. We think the indictment clearly apprised' appellant that he was charged with unlawfully and feloniously having carnal knowledge of one-Verna Willis. It is not contended that the indictment, was defective in any other respect.

Appellant’s next and last contention for a reversal of the judgment is upon the alleged ground that the testimony of sexual intercourse by the prosecutrix was not corroborated by any testimony of a substantial nature. In order to convict one for seduction, it is necessary that the testimony of the prosecutrix be corroborated both as to the promise of marriage and the act of sexual intercourse. McMaster v. State, 163 Ark. 194, and cases herein cited to this point. “Only such corroborative evidence is required as, in the nature of the case, is obtainable, and, when produced, though circumstantial and slight in character, a case is made for the jury to determine.” 24 R. C. L. par. 63, p. 779; Brooks v. State, 126 Ark. 98; Patrick v. State, 135 Ark. 173; Jackson v. State, 154 Ark. 119. The record not only reflects that a child was born, but, according to the testimony of the father and mother of the prosecutrix, a constant association and courtship existed between appellant and Yerna iWillis for a long time, with numerous opportunities for sexual intercourse. These facts afford substantial corroboration of the testimony of the prosecutrix to the acts of intercourse.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Davis v. State.
    Opinion delivered April 28, 1924.
    1. Intoxicating liquors — sufficiency of evidence. — Evidence held to sustain a conviction for making mash, for having an unregistered still, and for manufacturing whiskey.
    2. Witnesses — cross-examination.—Witnesses for the defense, in order to discredit them, may be asked on cross-examination concerning prior convictions for transporting liquor.
    Appeal from Nevada Circuit Court; James II. McCollum, Judge;
    affirmed.

      J. S. Utley, Attorney General, Jolm L. Carter, Wm. T. Hammock, Darden Moose, J. S. Abercrombie, Assistants, for appellee.
   McCulloch, C. J.

There were three separate indictments against appellant Millard Davis, one for making mash, one for having an unregistered still in his possession, and the other for manufacturing whiskey, and all of the cases were consolidated by consent and tried together. A verdict of guilty resulted in each case. Appellants Grady Plumley and Artie Clark were each separately indicted for two offenses, one for making whiskey and the other for keeping an unregistered still, and they were tried together on all of the indictments by consent, and a conviction resulted in each case. Appellants have duly prosecuted an appeal from each of the convictions, and, as the testimony is substantially the same in all of the cases, they will be disposed of in one opinion.

The sheriff of Nevada County heard that a distillery was in operation in the southwestern part of that county, and he, together with two other men, went down there to make a raid to break up the distillery and to arrest the guilty participants in the unlawful adventure. They reached the scene about sundown, and, after lying in wait for awhile, they observed two stills in full operation, and saw five men engaged in some sort of work connected with the operations. Appellant Davis was chopping wood, and the others were pouring.mash into barrels, emptying mash from barrels into a branch, and doing other things necessary to carry on the operations. No arrests were made at that time, and, as soon as those operating the stills discovered the presence of the officer, they all ran away. The sheriff and the two men who •accompanied him, Mr. Willingham and Mr. Bearden, each testified in the case, and in their testimony identified each of appellants with more or less certainty. When the sheriff and his men made an examination, after appellants had fled from the scene, they found two stills in operation, and also found twelve gallons of mash and fifty-five gallons of whiskey.

No brief has been filed on behalf of either of the appellants, but, in the motion for a new trial, the insufficiency of the evidence is assigned. We are of the opinion, however, that the evidence is legally sufficient to sustain the verdict of guilty as to each of the offenses charged in the respective indictments. It shows that all of the appellants were engaged in operating two stills at the same place, that there was a large quantity of mash at the place, and also fifty-five gallons of whiskey. This established the fact that the statute had been violated in three particulars, in making mash, in keeping an unregistered still in possession, and in manufacturing whiskey.

Each of the appellants attempted to prove an alibi, but the evidence on that subject was not uncontradicted, inasmuch as the sheriff and the two men with him testified positively that they identified each of the appellants.

In one of the cases error of the court is assigned in permitting witnesses on cross-examination to be asked concerning prior convictions for transporting whiskey. It was competent to permit the question to be asked, in order to discredit the witness.

We find no error in the record, and the judgment in each case is therefore affirmed.


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    Collier v. Mississippi Beneficial Life Insurance Co.
    Opinion delivered April 28, 1924.
    1. Appeal and error — conclusiveness of court’s findings. — Findings of the circuit court on disputed questions of fact are conclusive on appeal.
    2. Judgment — action to set aside — evidence.—In an action under Crawford & Moses’ Digest, § 6290, subdiv. 7, to set aside a judgment, evidence that the judgment was taken without notice to the judgment-defendant after settlement with its agent, and at a time when the agent’s successor was new in the field and with- ■ out knowledge of the pending suit, held to warrant setting it aside.
    3. Judgment — meritorious defense. — In an action to set aside a ■ 'judgment for $3,250, proof of an agreement to settle the claim for $75 and of partial performance thereof held a. sufficient showing of a meritorious defense.
    Appeal from Jefferson Circuit Court; T. G. Parham., Judge;
    affirmed.

      Arthur D. Chavis, for appellant.
    One seeking to vacate a judgment on grounds of fraud assumes the burden of proving it. 93 Ark. 462; 75 Ark. 415; 124 Ark. 278; 133 Ark. 97. In order to vacate a judgment after the term, the moving party must show, not only the fraud upon which he bases his action to set aside the judgment, but also a valid defense to the original action. 138 Ark-. 403. The valid defense must not only be alleged, but so adjudged. 120 Ark. 255; 114 Ark. 403; 33 Ark. 454; 97 Ark. 314; 139 Ark. 408. A litigant must keep himself informed of the progress of his case, and before he can be granted relief ag-ain-st a judgment on the ground -of unavoidable casualty, or fraud, preventing him from defending, he must show that he himself was not guilty of negligence, and not wanting in diligence. 114 Ark. 493. Parties are charged with notice of the dates upon-which courts convene in regular term. 106 Ark. 230. And will not be relieved against the legal consequences of their own default, except to enable them to interpose meritorious defenses when themselves not chargeable with neglect or delay. 5 Ark. 183; 123 Ark. 443; 102 Ark. 253; 83 Ark. 17; 73 Ark. 281.

      A. F. Triplett and Caldwell & Boss, for appellee.
    The evidence in this case fully warranted the court in setting aside the judgment. After receiving the money under the compromise agreement, counsel for appellant could not both repudiate the compromise and retain the money paid to effectuate such settlement. It being undisputed that he retained the money, the court correctly set aside the judgment. 51 Pac. 896, 59 Kan. 771. To justify setting aside a decree rendered at a former term, it is not necessary that actual fraud be shown; it is sufficient if facts and1 circumstances are proved from which constructive fraud can be inferred, if thereby the party seeking to avoid the decree was- induced to make no appearance in the cause. 104 N. W. 942, 74 Neb. 620. A judgment will be vacated if the unsuccessful party has been prevented by his adversary’s fraud or deception from exhibiting his case fully. 180 Fed. 137. -See also 85 N. E. 984, 42 Ind. App. 428; 73 Ark. 281. The granting or refusing an application to open, vacate or set aside a judgment is generally within the sound discretion of the trial court, and that discretion will not be disturbed on appeal, except upon a clear showing of abuse. 15 R. C. L. 720, 721-722.
   McCulloch, C. J.

This is an appeal from a judgment of the circuit court setting aside a judgment of the court rendered at a former term, and granting a new trial, pursuant to the seventh subdivision of § 6290, Crawford & Moses’ Digest. The original judgment was in favor of appellant against appellee for the recovery of the sum of $3,250, and appellee filed a petition to set aside the judgment in accordance with the statute.

The original action, wherein appellant was plaintiff, was instituted in July, 1922, and judgment was rendered on October 13, 1922. The petition to set aside the judgment was filed on March......, 1923, and the court heard the same on oral evidence, and rendered judgment on May 5, 1923, setting aside the former judgment.

Appellee is a foreign insurance company, permitted to do business in the State of Arkansas, and has a branch office in the city of Pine Bluff, in charge of a district agent or manager. Appellant was the holder of a policy upon her own life carrying a death benefit of $60 and sick benefits of five dollars per week. She made claim for sick benefits, and then instituted an action on the policy to recover the sum of $3,250, alleged damages for failure to pay the claim. Judgment by default was rendered for that amount. Appellee alleges that, during the pendency of the action and before the judgment was rendered, negotiations were entered into between appellant’s attorney and appellee’s district manager for a settlement of the claim; that an agreement was made for a settlement of the claim on the basis of the payment of the sum of $75, in installments; that the suit was to be dismissed upon payment of the amount, and that judgment by default was taken during the pendency of that agreement, and without notice to appellee or any of its agents.

The cause was heard by the court on oral testimony. There was a conflict in the testimony, and, under the settled practice, we must treat as conclusive the -finding of the trial court on the issue presented. It is insisted that the evidence is not sufficient to sustain the finding of the court.

It is undisputed that, after the commencement of the action, appellee’s district manager, Scroggins by name, went to the office of appellant’s attorney for the purpose of adjusting and settling the claim, and that an agreement was made whereby the claim was to be settled in full by the payment of the sum of $75. Appellee’s manager paid $25 at that time, and, a few days later, called and paid an additional sum of $18.17, leaving a balance due of $31.83, which had not been paid up to the time of the trial, but was tendered at the trial. Testimony adduced by appellee tended to show that, at the time of the agreement between the district manager and appellant’s attorney, there was an agueement that the amount should be paid in installments out of the local treasury of the company at Pine Bluff. Testimony adduced by appellant tended to show that there was no such agreement with respect to the manner of payment, but that, on the contrary, when the payment of $18.17 was made by Scrog-gins, the district manager, appellant’s attorney told him that, unless the balance was paid by a date mentioned, about a week later, judgment would be taken in the action. This is denied by appellee’s witnesses.

It appears also, from the testimony adduced by appellee, that the company was never notified at its home office either of the pendency of the action or of the alleged settlement, and that no attorney was employed to represent appellee for the reason that the matter was in the hands of the district manager who made the settlement.

According to appellee’s testimony, the alleged settlement of the claim was made two days before Scroggins was to leave the district to go to another State to take charge of the company’s business, and he left as his successor one Harris, who took charge of the company’s business at the office in Pine Bluff. Harris testified that he thought that the settlement had been consummated by Ms predecessor, Scroggins, but that he went to the office of appellant’s attorney several times, and attempted to call over the telephone many times to ascertain definitely what had become of the claim, and that he was never notified of the judgment until after an attempt was made to enforce it, in March, 1923. The first information of the matter received by appellee company at its home office was a report from the State Insurance Department in March, 1923, that the judgment had been rendered. Appellee then employed an attorney, and the present proceeding was instituted to set aside the judgment.

The findings of the court upon all the disputed issues of fact are conclusive on appeal. Cady v. Pack, 135 Ark. 445; Halliday v. Fenton, ante p. 11. We do not consider the weight of the testimony further than to determine its legal sufficiency. Resolving the conflicts in favor of the finding of the court, the facts are that appellant, through her attorney, entered into an agreement with appellee for a settlement of the controversy on the basis of the payment of the sum of $75; that the sum was to be paid in installments from time to time as the funds came into the local treasury; that the suit was to be dismissed when the last installment was paid; that appellee paid the greater portion of the amount, leaving only a small balance, and that .appellant took judgment against appellee without returning the money paid, and without any notice that the case would be pressed any further. The finding is also warranted that appellee was misled by the fact that its district manager went away to another field of work before the final payment was made; that the new manager believed that the settlement had been concluded, and made reasonable efforts to get information from appellant’s attorney, and that no notice was given to him or to the home office that the suit was to be pressed. This, we think, makes out a case which warranted the court in setting aside the judgment. The conduct of appellant’s attorney in taking judgment without notice, after having agreed to accept the small amount in full settlement, constituted such misconduct which., together with the fact that appellee’s manager was misled by the peculiar circumstances into believing that there had been a final settlement, justified the court in setting aside the former judgment.

It is contended that appellee failed to show merit, which was essential in order to get the judgment set aside. Counsel for appellee insists that the complaint states no cause of action for an amount in excess of $75, but, without determining that question, the proof adduced by appellee showing that there was an agreement to settle for $75, and partial performance of that agreement in accordance with its terms, is sufficient to show a meritorious defense.

The judgment is therefore affirmed.


text:
    Mason v. Mason.
    Opinion delivered April 28, 1924.
    1. Marriage — -annulment for fraud or duress.- — A marriage obtained by fraud or duress is not void, but is voidable at the election of the injured party, when annulment is sought within apt time.
    2. Marriage — false representations as to pregnancy. — That plaintiff was induced to marry a woman with whom he had had illicit intercourse by false representations on her part that she was pregnant, is not ground for annulment of the marriage.
    3. Divorce — conclusiveness of chancellor’s finding. — The chancellor’s finding that the wife’s criminal prosecution of her husband was directed solely toward forcing the husband to respect his marriage vows, and was not ground for divorce, held sustained by the evidence.
    Appeal from Johnson Chancery Court; J. B. Ward, special chancellor;
    affirmed.

      Jesse Reynolds, for appellant.
   McCulloch, C. J.

Appellant and appellee are husband and wife, having intermarried in Johnson County, Arkansas, on October 22, 1921. Each of the parties was about nineteen years of age at the time of their intermarriage, and they have never cohabited as husband and wife or lived under the same roof since the ceremony was performed.

The appellee, Hallie Mason, filed her complaint against appellant, Ewell Mason, in the Johnson Chancery Court on October 9,1922, to recover a monthly allowance of money for her support. It is alleged in the complaint that, immediately after the intermarriage of the parties, and on the same day, appellant “wilfully abandoned and deserted plaintiff, and since has failed and refused to live with the plaintiff,” and that appellant was able to support appellee, but has refused to do so. Appellant filed his answer, denying that he had refused to support appellee, and also filed a cross-complaint against appellee for divorce, on the ground that she had been guilty of conduct which was sufficient to render his condition intolerable. He alleged in his cross-complaint that, at the time of the intermarriage, appellant was a schoolboy, attending a college in Clarksville, and that the parties, together with their respective parents, entered into an agreement that appellant should return to school and remain there for the balance of the term, and that appellee should remain with her father and be supported by him until the expiration of the school year. Appellant also alleged that appellee and her father, disregarding this agreement, at once commenced and persisted in efforts to harass and annoy appellant by having bim arrested for crime — that, immediately after the marriage, they employed a lawyer and began to institute prosecutions against him. Appellee answered the cross-complaint, denying all of the allegations thereof with respect to any misconduct on the part of appellee or her father.

On December 26, 1922, while the action referred to above was pending, appellant, by his father as next friend, commenced an action in the Johnson Chancery Court against appellee to obtain an annulment of the marriage relation between the parties, on the ground of alleged fraud on the part of appellee and her father in inducing appellant to marry. It is alleged in this complaint that, prior to the intermarriage, appellant and appellee had been indulging in sexual intercourse with each other, and that appellee and her father falsely represented to appellant that appellee was then pregnant with a child, and that appellant was the father of the child, that said representation was false, and was made for the fraudulent purpose of inducing appellant to marry the girl. Appellant also set forth in his complaint the same statements as in his cross-complaint in the other action, with respect to the alleged agreement between the parties that appellant should return to school and remain there until the end of the school year. The court sustained a demurrer to this complaint, and, appellant declining to plead further, final decree was rendered against him, dismissing the complaint for want of equity.

The other action for alimony, and appellant’s cross-complaint for divorce, proceeded to final hearing on oral testimony, and resulted in a decree dismissing appellant’s cross-complaint for want of equity, and he has prosecuted an appeal in each of the case's. The two appeals have been consolidated here for the purpose of being briefed together, and will be disposed of in one opinion.

A marriage obtained by fraud or duress is not void, but is voidable at the election of the injured party, when annulment is sought within apt time. Nelson on Divorce and Separation, § 569. There is some conflict in the authorities as to what acts will constitute fraud sufficient to justify the annulment of a marriage contract, but we are unable to find any authority which goes to the extent of holding that the facts set forth in appellant’s complaint would justify annulment of a marriage. The only misrepresentation set forth in the complaint is in regard to appellee’s condition of pregnancy. It is admitted that appellant had been having sexual intercourse with appellee prior to this time, and there is a further allegation that appellant was represented as being the father of the unborn child; but there is no allegation in the complaint that another person was the father of the child; on the contrary, the allegation is that the representation as to pregnancy was altogether false.

It has been held that a marriage induced by misrepresentation as to the paternity of a child will afford grounds for annulment, where the parties had been having sexual intercourse before the marriage and the husband was induced to believe, by the false representations, that -he was the father of the child. Nelson on Divorce and Separation, §§ 607, 608, 609. But, as before stated, there is no allegation in the complaint before us as to misrepresentations in regard to the paternity of the unborn child, but the allegation is that the representation as to pregnancy was false. We do not think that,-where there is nothing more than a false representation as to pregnancy, the parties having been indulging in sexual intercourse with each other, it is sufficient to afford grounds for annulment of the marriage; on the contrary, the rule, supported by authorities, is stated by a. text-writer as follows:

“If the parties have had illicit intercourse, the marriage will not be annulled because the woman falsely represents that she is pregnant, and thus induces the man to marry her to prevent disgrace. In such cases the pregnancy is always a doubtful matter, and, if it does not exist, it is still a matter of some uncertainty that a child will be born. The husband, having placed himself in such a position that he cannot tell whether the woman is or not pregnant, and is thus in her power, is still free to pursue his own course. He may dishonor the woman by refusing to marry her, and, if a child is born, be liable to bastardy proceedings. Or he may choose to marry her from such excellent motives as to recompense the seduction, as far as possible, to shield her honor as well as his own, and to assume in advance liabilities which he believes are inevitable. When he marries under such circumstances, he voluntarily assumes a known risk that the pregnancy exists. He takes the woman for better or worse, and should not be released because no pregnancy existed and the unfortunate affair has resulted better than he has calculated. This is not a case of unmixed fraud, because the man relies not alone on her representations, but in part upon the knowledge of his guilty conduct. He does not assume unknown liabilities and conditions, as is the case where a man marries a woman whom he believes is chaste, when in fact she is concealing the fact that she is pregnant by another. Nelson on Divorce and Separation, § 610.

The court was therefore correct in sustaining the demurrer to appellant’s complaint.

It appears from the testimony in the other cases that the parties to the action were residing with their respective parents on farms about half a mile distant from each other, and about twelve miles distant from Clarksville. Appellant at that time was attending school at Clarksville, and boarded there. For about a year prior to the marriage the parties had been going together,1 and they began to have sexual intercourse several months before the marriage. On Friday, October 21,1921, appellant was informed by his father that the girl claimed to be pregnant as result of their sexual intercourse, and suggested that the parties intermarry at once. Appellant, accompanied by his father, went to appellee’s home that night, and, on consultation, it was agreed that appellant and appellee should intermarry at once, that appellant should return to school and remain there until the end of the school year, and that appellee should remain with her father. On the next day, Saturday, October 22, 1921, appellant obtained a marriage license, and took appellee to a minister of the Gospel in the neighborhood, and the marriage ceremony was performed. Appellant and appellee then returned to her father’s house, and appellant, after remaining there fifteen or twenty minutes, left, and never returned. He went back to school, and every few weeks went back to his father’s home in the country, and remained there two or three days at a time, one time for a week,1 and never went to see appellee, nor spoke to her.

Appellee testified that she became pregnant in September, 1921, as tbe result of ber intercourse with appellant, and that, when she informed him of it, he procured medicine to produce an abortion, that she took the medicine, which brought about an abortion, which occurred two days after their intermarriage.

When the grand jury convened in December, 1921, appellee was summoned to appear as a witness for the purpose of finding an indictment against appellant, but no indictment was returned. Shortly thereafter appellee’s father obtained a warrant from a justice of the peace for appellant’s arrest on the charge of having committed an abortion, and appellant was bound over to the grand jury, but, at the next term of the court, the grand jury failed to indict for that offense, but indicted appellant for wife desertion. He was tried on that charge, but the jury was discharged without an agreement.

Appellant contends that appellee or her father employed a lawyer the day after the marriage and began to harass him with threats of prosecution, and did have him arrested and indicted. This is the only ground upon which he seeks a divorce. He testified that, on Monday after the marriage on Saturday, appellee came to town with her father and met appellant on the street, and threatened to prosecute him. Appellee and her father explained this by showing that information had been conveyed to them on Sunday, the day after the marriage, that appellant was hiding out or leaving the country for the purpose of deserting appellee, and that they came to town to consult the sheriff and a lawyer about apprehending appellant and preventing his flight. The father testified that his sole effort was to require appellant to respect his marriage vows by living with appellee. He testified that there was an ag'reement that appellant was to return to school, but that he was to respect the marriage relation and live with his wife so far as consistent with his school attendance, and that this was violated by appellant refusing to have anything to do with her, or even to visit her or speak to her.

It is shown, on behalf of appellee, that the sole effort was directed towards forcing appellant to respect his marriage vows and live with appellee, and that he was not arrested until after he had refused to live with her. According to the contention of appellee, she was not guilty of any misconduct, and the fault was entirely with appellant.

The finding of the chancellor in favor of appellee upon the issues is not against the preponderance of the evidence, and the decree denying the divorce is affirmed; likewise the decree refusing to annul the marriage.


author: McCulloch, C. J. Hart, J.,

text:
    St. Louis Southwestern Railway Co. v. Christian.
    Opinion delivered April 28, 1924.
    1 Railroads — obstructing crossing — duty to travelers. — When a railroad company occupies a crossing for a time beyond the lawful period, it is under duty to travelers who a.ttempt to cross not to start the train without reasonable warning.
    2. Railroads — obstructing crossing. — A pathway which crossed a ditch by a foot-log, and continued across defendant’s track, permissively used by the public, is not a crossing or an alley within Crawford & Moses’ Dig'., § 8560, prohibiting the blocking of any highway, street or ‘ alley crossing by trains for more than 10 minutes, so that defendant owed no duty, and was not liable for injuries to a boy who was run over while attempting either to crawl under the train or to hang on to the train for a ride.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    reversed.

      John R. Turney, Gaughan & Siffor-cl aud Elbert God-win, for appellant.
    1. An infant injured hy coming in contact with a freight-car near the middle of a train rightfully occupying the track, cannot recover from the railroad company, where the undisputed evidence shows that the perilous position was not discovered by the train crew in time to have averted the injury, whether the place at which he came in contact with the train was on the private right-of-way of the railroad, a footpath on the right-of-way customarily used by the public, or a public highway. 117 Ark. 483; 101 Ark. 532; 57 Ark. 461; 90 Ark. 281; 95 Ark. 190; 93 Ark. 24; 25 Ky. Law Bep. 1623, 78 S. W. 439; 2 Thompson’s Com. on Law of Negligence, § 1674.
    2. A meandering footpath across a railroad right-of-way which has been used by the public for many years is not a “public highway, street, alley or crossing” within the meaning of Crawford & Moses ’ Digest, § 8560, making it unlawful for a train to remain standing on such a public crossing longer than ten minutes. 89 Ark. 103; 103 Ark. 226; 96 Ark. 638; 52 Tex. Civ. App. 575, 113 S. W. 611; 104 Mo. 211, 16 W. 11; 106 Ark. 390.
    3. The evidence conclusively repels the inference that appellant’s train had remained' standing on the pathway for more than ten minutes prior to appellee’s injury.
    4. If it be assumed that the train unlawfully blocked the pathway, in violation of the statute, for more than ten minutes, still its alleged negligence in failing to give warning signals could not have been the proximate cause of the injury, since the appellee, because of his age, could not have appreciated the signals if they had been given. 63 Ark. 177; 84 Ark. 270; 106 Ark. 390; 130 Ark. 583; 132 Ark. 431; 63 Ark. 177; 56 Ark. 387.

      A. D. Pope, M. P. Huddleston and R. P. Taylor, for appellee.
    1. On the theory of liability on the part of the railroad company under Crawford & Moses ’ Digest, § 8560, counsel draw a distinction between that section and § 8568a, oi? which appellant relies, and say that the crossing at which the injury occurred comes within the definition of an alley, such as is contemplated by § 8560. Permissive use is not restrictive of public right. 157 Ark. 449, 452; 78 Ark. 251, 260; 31 Ky. L. Bep. 825, 104 S. ¡W. 258, 13 L. B. A. (N. S.) 1066. The crossing was maintained primarily, if not solely, for public use. Appellee had the right, because of the unlawful obstruction of Junction Street, to attempt crossing at the- point of injury. 50 Mo. 461,11 Am. Rep. 420, 12 Am. iNeg. Cases, 198. And ire liad this right, and for the same reason, to attempt crossing at any point in the train, whether at a customary crossing point or elsewhere. 168 Mo. App. 160, 153 S. W. 66; 58 Kan. 424, 49 Pac. 599, 3 Am. Neg. Rep. 26; 84 G. A. 698,11 S. E. 455; 16 A. L. R. 1054, note ; 62 Ark. 156; 64 Ark. 364. Plaintiff is not chargeable with contributory negligence. He may rely on the negligent obstruction as causing his injury. 180 S. W. (Ky.) 792; 22 R. C. L. 994. If the statute be viewed as penal, the result is not altered. 93 Ark. 42, 45 ; 95 Ark. 218; 45 Ark. 387, 391; 132 Ark. 1, 7. But the statute is not penal. It has both a penal and a remedial aspect, and the latter controls in a civil suit to recover damages. 24 Atl. 831; 176 111. 489, 42 L. R. A. 804; 123 Ark. 226, 230; 93 Ark. 42, 45. The jury’s finding establishes negligence per se on- the part of the defendant, and that negligence was the proximate cause of the injury. 146 Ark. 448, 455; 180 S. W. 792; 84 Ga. 698,11 S. E. 455. The proximate cause in this case relates back to the obstruction. This as a matter of law, assuming the correctness of appellant’s theory that the failure to warn could not have been the proximate cause of the injury because of the plaintiff’s tender years and consequent inability to appreciate the warning. 146 Ark. 448; 99 Miss. 519, 55 So. 287.
    2. The statutory presumption makes the railroad company prima facie liable for damages caused by a running train. C. & M. Digest, § 8562. This presumption places on the defendant the burden of disproving every element of negligence, whether specifically alleged or not, which may reasonably have caused the injury. And such presumption uniformly favors children of tender years. 57 Ark. 136; 80 Ark. 19, 21; 180 S. W. 490; 83 Ark. 217, 221; 59 Ark. 140.; 179 H. S. 658; 89 Ark. 574, 577; 23 A. L. R. 1214, note; 49 Ark. 257, 264; 62 Ark. 245, 253; 52 Ark. 162. The presumption favors a bare licensee, if he be' a minor of tender years.
   McCulloch, C. J.

Howard Christian, a small boy about five years of age, was run over by a freight train of appellant’s being operated in the city of Paragould. The boy’s leg- was mashed, off, and he suffered pain. This is an action instituted 'by the guardian of the boy against the railway company to recover damages. There was a verdict against the company, awarding damages to appellee, and an appeal has been prosecuted.

There are many assignments of error, among which is one that, according to the undisputed evidence, there is no liability, and this is the only one which we find it necessary to discuss.

Appellant’s line of railroad runs through the city of Paragould slightly northeast and southwest, crossing the streets and alleys obliquely. Some of the streets and alleys intersected by the railroad are open and some are closed. Vine Street, near which the injury to appellee occurred, runs east and west, and is closed. The plats in evidence show that the street is laid out on both sides of the railroad, but there is no crossing there. Junction Street, the next one on the north of Vine, is open, and also Park Street, two blocks south of Vine, is open. Second Street, which runs north and south on the west side of the railroad crossing, intersects Vine Street at the edge of the railroad right-of-way. East of the railroad right-of-way Vine 'Street is also obstructed by a manufacturing plant, shown on the plat as being nearly across the street adjoining the right-of-way. Just north of the north line of Vine Street there is a trestle spanning a deep ditch. There are two ditches parallel with the main track, north and south and on the west side of the track, which drain into the large ditch spanned by the trestle. Across the ditch north of the trestle there is a wooden stringer, ten by fifteen inches in size, used as a footlog, or walkway. The footlog was placed there by the railroad company, and the first one placed there was replaced by a larger one. At the end of the footlog there is a path which leads across the main line of appellant’s track, and also across the Missouri Pacific track. The footlog and the path which connects have, according to the evidence, been used by the public for many years, without protest or objection. Appellee was run over at a point on the track very near where this pathway crosses the track. He was run over by a freight train containing fifty-eight cars. The train came into the city from the south, and slowed down preparatory to stopping at the water-column for water. The train was 2,500 feet in length, and reached south from the water-column to a point considerably south of the place where appellee was struck at the footpath. In other words, appellee was struck by one of the cars in the train, about the fifteenth from the engine. According to the evidence, the train moved into the city at a slow rate of speed, and the engine stopped at the tank. In coming to a stop the' engineer failed to accurately spot the engine so as to stop it at the water-column, and it was necessary to back up a little.

There is no witness who saw the boy when he was run over by the train, and it is to some extent a matter of speculation as to how it occurred, but it is inferable that the boy was either attempting to crawl under the train and thus pass over the track, or that he was hanging on to the lower rung of the ladder, attempting to ride the train. The only witnesses who saw the boy prior to the injury were the engineer and fireman, who testified that, as they passed up, they saw three boys on the side of the ditch near the footlog, apparently at play, and the boys waved to them, and they responded to the greeting. A witness, who was in the kitchen-car of a work-train standing on an adjoining sidetrack, testified that she heard noises which she found to be the scream of a child, and that, when she looked in that direction, she saw appellee attempting to roll out from under the edge of the train. She testified that she saw two other boys running away from the scene, but that appellee was unable to walk, for the reason that his leg was cut off. This witness testified that the place where she discovered the boy was at the fifteenth car from the engine/

It is undisputed that the train of cars was not cut in two, and that appellee was not struck by the front or rear of the train, but came in contact, as before stated, with one of the cars in the train. It is not contended that the lookout statute requiring signals is involved in the controversy. There is a controversy between counsel as to whether or not the train had come to a full stop before the injury occurred and as to the length of time the train remained standing before the injury occurred. We deem it unnecessary, in view of the conclusion we have reached, to determine those questions. -

Counsel for appellee undertake to sustain the recovery solely on the ground that appellee, when injured, was attempting to cross the track at the pathway crossing referred to above; that, in the operation of the train, there was a violation of the statutory inhibition with reference to blocking crossings; that appellee, being a child of tender years, was incapable of guilt of contributory negligence, and that appellant was therefore liable for the injury. In other words, the contention of counsel for appellee is that the pathway referred to was a kind of crossing referred to in the statute against blocking by railroad trains, that appellee had the right to attempt to cross, and that appellant is liable on account of violation of the statute, which reads as follows:

“If any corporation, company, person or persons owning or operating railroad trains in this State for the purpose of carrying freight, suffers or permits the same to remain standing across any public highway, street, alley, or farm crossing, or, when it becomes necessary to stop such trains across any public highway, street, alley or farm crossing for more than ten minutes, and fails to leave a space of sixty feet across such public highway, street, alley or farm crossing, shall be fined in any sum not less than-five dollars nor more than twenty-five dollars.” Crawford & Moses’ Digest; § 8560.

If the pathway crossing mentioned above falls within the definition of the statute, and was blocked by the train for a longer period than ten minutes, then appellee or any other traveler seeking to cross had the right to adopt some other means of effecting a crossing, and the company would be liable for any injury resulting in the attempt to cross, in the absence of contributory negligence, and appellee, being of tender years, would not be open to the charge of contributory negligence in attempting to cross the track. The rule sustained by authorities seems to be that, when a railroad company occupies a crossing for a time beyond the lawful period, it is under duty to travelers who attempt to cross not to start the train without reasonable warning. Trent v. Norfolk & W. R. Co., 167 Ky. 319; 2 Thompson on Negligence, § 1674; 22 R. C. L. 994. If, however, the pathway in question was not such a crossing as comes within the definition of the statute, then there was no violation of any statutory or other duty, and appellant is not liable.

Our conclusion is that the pathway in question does not come within the statutory inhibition, for it is neither a public highway nor a street or alley within the meaning of the statute. Counsel for appellee contend that it is an alley within the meaning of the statute, and they rely upon the dictionary definition of the word “alley” as “a narrow passage; * * * a narrow passage or way in a city as distinct from a public street.” We are of the opinion that the word ‘ ‘ alley, ’ ’ in the statute is used in the popular sense, and that it was intended to mean a narrow street in a city or town as distinguished from a street upon which buildings face. In fact, some of the dictionary definitions of the word “alley” are sufficient to exclude the application to the pathway in question, and if the dictionary meaning is to be accepted, there are many other definitions therein given which would make them applicable to any kind of private way. The dictionaries define a street broadly as “a way or course” (Webster), and if this definition is accepted as being applicable, it’ would include an alley, and it would therefore be unnecessary to use the word “alley” at all.

The evidence in the case shows that this pathway was along a footlog over the ditch and then a mere walkway over the track. The right to use it was exercised permissively, and no public way was acquired by prescription. It was not therefore such a crossing as was contemplated by the statute which prohibits the blocking of an alley. If the locus in quo was the unopened portion of a street which ran up to the right-of-way on each side, it would not affect the question of the application of the statute. There is no contention that the street had ever been open, and, if an unopened street was there, it would not make this pathway a public alley within the meaning of the statute. But the plat in evidence shows unmistakably that the pathway was not along the unopened street — it was north of the street line.

Something is said in the brief about the question of liability on account of blocking Junction Street on the north and Park Street on the south, but there is no evidence in the case tending to show that the boy was traveling either of those streets or sought to cross at or near either crossing, and there is no ground upon which liability could rest.

Having reached the conclusion that there was no violation of the statutory duty in blocking the pathway in question, it is unnecessary to determine whether or not the evidence is sufficient to show that it was blocked for a longer period than the time prescribed in the statute. There being no other grounds upon which liability could be based, and the testimony being undisputed as to the character of the crossing, nothing would be accomplished by remanding the cause for a new trial, so the judgment is reversed, and judgment will be entered here in favor of appellant. It is so ordered.

Hart, J.,

(dissenting). Jud'ge Humphreys and myself do not agree to the law and facts as found by the majority opinion. In the majority opinion it is said that the evidence showed that the right to use the crossing at Vine Street was exercised permissively, and no public way was acquired by prescription. On this point we quote from the testimony of Wiley George, as abstracted by counsel for appellant, the following:

“The bridge stringer across the ditch south of the depot has been there seven or eight years; ever since I lived in Paragould. The crossing is not restricted to any one class, but is used as a public crossing. The Cotton Belt right-of-way and track are used by the public generally as a pathway in going up north to town.”

• On this point E. O. Yickroy says: “The bridge stringer across the ditch north of trestle No. 247, opposite Vine Street, or nearly so, has been used by the public in crossing the ditch ever since I have been living in that town, better than twelve years.”

Vester Grooms said: “This stringer has been used as a footbridge ever since I can remember. All the boys who worked at the Pekin stave and heading shop, and who lived1 on the west side of the track, used the crossing. I never knew of any restriction on the use of the crossing.”

Frank Christian said: “Some one is traveling at all times the pathway that leads up and down the right-of-way. The log crossing is used as much as the public crossings at Junction and Park streets.”

Girvies French said: “The foot-bridge and pathway had been used by the public generally ever since I have been in town, ten or twelve years. I never heard any whistle or signal by the train from the time it pulled into town until it gave two long blasts when it started to go out.”

I. N. Jackson said: “I am an employee of the Missouri Pacific, and have been for more than twelve years. The crossing of the Cotton Belt and Iron Mountain in the city of Paragould, at what is known as Vine Street, has been used generally by the public ever since I have been here. The public generally uses the roadbed of the Cotton Belt traveling north and south, up and down the tracks past that crossing.”

Several other witnesses testified to substantially the same state of facts; and there is no other and different evidence on this point.

It is well settled in this State that a way by prescription may be established by evidence of user by the public, adverse and continuous, for a period of seven years or more. From which use arises a' presumption of a reservation or grant, and an acceptance thereof, or that it had been laid out by the proper authorities, of which no record exists.

It was a question for the jury to determine, upon all the evidence in the case, including that quoted above, 'whether the use by the public of the crossing was adverse and under a claim of right, or whether it was permissive and allowed by the railroad company.

In the majority opinion it is also stated that the plat shows that, east of the railroad right-of-way, Vine Street is obstructed by a manufacturing plant, which is nearly across the street adjoining the right-of-way. It is true that there is a manufacturing plant situated in the part of Vine Street east of the railroad, but it is not shown how much of the plant is in the street and how much on the right-of-way. The plat does show that Vine Street runs east and west. It is a public street running to the right-of-way of the railroad on the west side thereof. East of the right-of-way, Vine Street continues as a part of the platted streets of the town. According to the plat, Vine Street is one of the public streets of the city, and runs to the railroad right-of-way on each side thereof.

We think, when the plaintiff proved an adverse use, general, uninterrupted, and continued for more than seven years, that the jury might have found that that part of the right-of-way opposite Vine Street had become a public highway. In other words, it is admitted that Vine Street is a public street of the city, and that it extends to the right-of-way of the railroad both on the east and west side thereof. If the jury should find that the public acquired a right to cross the railroad right-of-way between the points on the east and west side thereof, where Vine Street is platted as a street of the city, the crossing necessarily partakes of the character of the crossing of which it becomes a part. To illustrate: if Vine Street had been a private way, the crossing acquired by the public would be a part of that private way and would be a private crossing, no matter how many people crossed over it, or whether they crossed on foot or in vehicles.

On the other hand, Vine Street being a public street of the city, the crossing acquired by adverse user by the public became a part of Vine Street and thereby a part of a public street of the city. It is not necessary that a public crossing should be put in condition that vehicles might drive over it in order to constitute it a part of a public street. Of course this would be a fact to be considered, but it is not conclusive.

Hence we think that it was a question for the jury to say whether, under all the evidence, there was a public street at the place where the accident occurred, within the meaning of § 8560 of Crawford & Moses’ Digest.

Some of the witnesses for the plaintiff testified that this street was obstructed by the train on the day in question for more than ten minutes.

The result of our views is that we respectfully dissent from the majority opinion.


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

text:
    American Life Association v. Vaden.
    Opinion delivered April 28, 1924.
    1. INSURANCE-'-NONPAYMENT OF PREMIUM — EXTENSION OF TIME.— Where a first premium note, given under a policy which, by its terms, became void upon nonpayment of any premium note when due, became due on October 20, 1918, and was unpaid, the policy became void, unless the time for payment was extended prior to insured’s death on October 28.
    2. Insurance — extension of time for paying premium — evidence. —In an action on a life policy, where the defense was that the policy was forfeited by reason of nonpayment of the premium note, evidence held to justify submission of the issue whether time for payment of such note had been extended before insured’s death.

      3 Insurance — waiver of forfeiture. — Furnishing by insurer of blanks for making proof of death, and correspondence between insurer and beneficiary with reference thereto, held insufficient as evidence of a waiver by insurer of a forfeiture of the policy for nonpayment of the premium, where the blanks recited that the furnishing of them should not be an acknowledgment of liability of the insurer.
    4. Insurance — waiver of forfeiture — evidence.—Evidence held to justify submission of the issue whether insurer, after having knowledge that a premium note had not been paid at the time of insured’s death, did not, by its affirmative conduct for several months thereafter, induce the beneficiary to believe that it would not insist upon a forfeiture because of such nonpayment and thereby cause her unnecessary trouble and expense.
    5. Evidence — offer of compromise. — In an action on a life policy, defended on the ground of forfeiture for nonpayment of a premium note, testimony of insurer’s offer of settlement or compromise, which was not coupled with a denial of liability, was relevant on the issue of waiver of forfeiture.
    6. Insurance — forfeiture—waiver.—Waiver of forfeiture of a policy, though in the nature of an estoppel, may be created by acts, conduct or declarations insufficient to create a technical estoppel, and the courts, not favoring forfeitures, are inclined to grasp any circumstances which indicate an election to waive a forfeiture.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bawdy, Judge;
    affirmed.

      Oscar A. Knehan and Gautney & Dudley, for appellant.
    The validity of notes of this character is recognized and upheld by this and other courts. 104 Ark. 288, 148 S. W. 1019; 143 Ark. 143, 220 S. W. 803; 230 S. W. 257; 85 Ark. 337, 108 S. W. 213. Where the stipulation provides that the policy shall be null and void upon the failure to pay the premium or premium note when due, it is held to be self-executing, and the policy ceases to exist. A promise to pay on the part of the company in such a case, after notice of forfeiture, would have to be supported by a new consideration to be enforceable. While the company might estop itself by conduct misleading the insured to his prejudice, mere silence on its part, or nonaction, is not sufficient to bring it within the rule. Here we are dealing with the beneficiary, and not the insured, and proofs of death were submitted under the express provision that, in doing so, the company did not acknowledge any liability. 200 Mass. 510, 86 N. E. 928; 18 Gta. App. 347, 89 S. E. '445; 28 N. W. 749 ; 86 111. App. 315; 75 S. W. 234; 112 Ark. 171; (U. S.) 26 L. ed. 765; 47 L. ed. 204; 156 Ark.' 77; 65 Ark. 240; 86 Ark. 326. Non-waiver stipulation valid'. Action taken under same does not constitute waiver of compliance with terms of policy. L. R. A. (N. S.) 1917E, p. 663. The legal evidence establishes that the premium note was not paid when due, that, by the terms of the policy, it was forfeited before the death of the insured, and that there has been no waiver of the forfeiture. Not only was the appellant entitled to the peremptory instruction requested, but it was clearly error to modify instruction 2 by adding the words “unless you find that payment of the note was extended or forfeiture of the policy waived,” as that modification was without evidence to support it. There is an absolute want of evidence to sustain the submission of the issue of extension of time of payment of note. 72 Ark. 630; 75 Ark. 25. See also 87 Ark. 326.

      W. E. Spence and Gosten & Harrison, for .appellee.
    1. Any agreement, declaration or course of action on the part of an insurance company which leads the insured honestly to believe that, by conforming thereto, a forfeiture will not be incurred, followed by conformity on his part, will estop the company from insisting upon the forfeiture. 53 Ark. 494; 62 Ark. 43; 65 Ark. 54; 92 Ark. 378; 94 Ark. 227; 99 Ark. 476; 132 Ark. 548; 14 R. C. L. 1181, § 357; 25 Cyc. 858; 144 U. S. 439.
    2. Where notes are given in payment or part payment of premiums, and the policy provides that, on default in payment of the notes, the policy shall become ipso facto null and void, the forfeiture is waived if, after default, the insurer continues to assert liability on the part of the insured to pay the notes. 14 R. C. L. 1192, § 369; 25 Cyc. 865; 81 Ark. 160. And requiring proof of loss with, knowledge of the facts, especially if the beneficiary is induced thereby to incur expense or trouble under the belief that the policy will be paid, is a waiver of the forfeiture. 53 Ark. 494; 67 Ark. 584; 92 Ark. 378; 14 it. C. L. 1197; 25 Cyc. 872. See also 83 Ark. 575; 94 Ark. 227. An offer to pay a part of the loss under the .policy would amount to a waiver of the forfeiture, if there was a forfeiture. 99 Ark. 476; 83 Ark. 575; 14 E. C. L. 1195, § 373; 25 Cyc. 872.
    3. The testimony as to an offer of settlement made by the company was competent for the purpose of showing a waiver of the forfeiture, and it was properly admitted for that purpose.
   Wood, J.

This is an action by the appellee, the benfieiary in a policy of life insurance, against the appellants, on a policy issued to Ira L. Cox, husband of the appellee, by the American Life Association of Campbell, Missouri. The policy was in the sum of $1,000, and it is admitted that the Liberty National Life Insurance Company assumed the liabilities of the American Life Association on the latter’s policies. Hereafter, for convenience, the company issuing the policy will be referred to as company.

The policy was issued . on the 20th of September, 1918. The annual premiums on the policy were $32.89, payable September 30 of each year until twenty premiums had been paid. For the first premium Cox executed a note dated October 2, 1918. This note was for $32.89, payable on or before the 20th day of October, 1918. The note contained the following recital: “Upon default of payment of this note, the makers, indorsers, guarantors, and sureties, agree to pay all reasonable attorneys’ fees and expenses of collection, and do hereby severally waive demand of payment, protest, and notice of protest of this note, and consent that tim'e of payment may be extended without notice. The failure to pay any of above installments or interest, when due, shall cause this note to become due. ’ ’

The policy contained the following provision: “A grace of thirty-one days, without interest, will he allowed for the payment of each premium except the first, and during this time the policy shall be in full force and effect. If the insured should die during this period, or before any year’s premium is paid in full, the premium or installments for the current year will be deducted in any settlement thereunder; or, if any premium or premium note is not paid when due, this policy shall be null and void, and all premiums paid hereon shall be forfeited to the company, except as otherwise provided herein.”

Cox died on the 28th of October, 1918. Proof of death was made out and presented to the company on blanks furnished by the company, which, among other things, provided: “The furnishing of these blanks by the American Life Association on which to make proof of any claim against it shall not be an acknowledgment of any liability of said association. ’ ’ The blanks were furnished by the company on November 9, 1918, at the request of the appellee, after the death of Cox. They were sent in a letter shown to have been written by the secretary of the company.

The blanks were filled out and returned to the company in person by the appellee’-s brother. At that time Cox had been dead two or three weeks. When appellee’s brother went into the office of the company at Campbell, Missouri, he asked for- the secretary, and stated he wanted to speak to the one in authority who was running the business. A lady was called from the back of the office, who came and looked over some papers on the desk, and said they could not make settlement, as the secretary was then in St. Louis. They didn’t say anything at that time about the policy being forfeited. On October 30, 1918, the company wrote a letter • to Cox which stated: “Your note for premium, dated Oct. 2, 1918, oh policy No. 6262, for $32.89, will be due Nov. 1, 1918. Unless said note is paid to the association on or before said date, said policy will be forfeited, canceled,, and of no effect, except as provided herein. You will find the above note at the home office of the association. We trust you will give the matter your prompt attention.” Up to the time of giving the above notice, the fact of Cox’s death was unknown to the company. Two or three weeks before his death Cox had requested the Bank of Bector to write to the company in regard to the payment of the premium on his policy. In four or five days the ¡bank had a reply.

On February 17, 1919, the father of the assured wrote to the company in regard to the claim caused by the death of his son, and stated that he hoped to hear from the company soon. The company, through its assistant secretary, replied to this letter Feb. 18, 1919, stating that the secretary of the company was absent, and that the letter would be brought to his attention when he returned. The father of the assured also had a talk with a man by the name of Bray, who said that they had talked the matter over, and could settle the claim at thirty cents on the dollar, and that the company would settle if appellee would take that. Witness didn’t know who Bray was or what authority he had, but he represented to witness that he was in the insurance company’s office back of the bank, and had been down about Green-way, settling claims.

The appellee testified that she, in company with her then husband, went to Campbell about the 28th of February, 1919, to talk to the company about the insurance of her former husband. They talked to Mr. Morgan and Mr. Bray. They did not, at that time, say anything about a forfeiture, but said they would settle for three hundred dollars. Witness offered to compromise with them for $500, and Morgan said they would pay it if witness would take out insurance in the new company, and no one suggested that they did not owe witness anything on the policy, or that it was forfeited. Witness believed the policy was worth one hundred cents on the dollar, but was offering to settle for $500 because she didn’t want a suit. The note which they owed was not due.

Bray testified that lie was superintendent of agencies for the appellant company in December, 1918. Morgan was the secretary and general manager. Bray settled some claims, such as were handed 'him by- the board of directors. The claim in controversy was not handed witness by the board. The note given to the company for the first premium was never paid.

Bertha D. Morgan testified that, during the year 1918, she was employed by the company in the capacity of assistant secretary and stenographer. She had charge of the records of the company. William G-. Morgan was secretary of the company between October 2, 1918, and January 27, 1919. During that time witness conducted the correspondence of the company. Mr. Morgan was absent from the office. She received the letter from the appellee dated November 9, 1918, notifying the company of the death of the assured and requesting the blanks for making proof of death. At the time she received this letter she didn’t know that the note for the first premium had not been paid, because the same had been sent out for collection and had not been returned to the office. She forwarded the blanks, at the request of the appellee, before the company learned that this note had not been paid. The reason why the claim in controversy was not paid was because the note for the first premium was not paid at maturity, and, under the terms of the policy, the failure to pay this note rendered the policy void. The appellee, Mrs. Yaden, in company with her husband, made demand of the company for payment of the claim to Mr. Morgan, and he declined paying the same, stating that the premium note was not paid at maturity, and that Cox had died eight days after the note was due, and, for that reason, the policy was void-and the company not liable. The appellee offered to deduct the amount of the note from the face of the policy, and Mr. Morg’an informed her this could not be done, because the policy was already forfeited at the time of the death of Cox.

The above are substantially the facts which the testimony adduced by the respective parties ' tended to prove. The company, in its prayer for instruction No. 1, asked the court to direct a verdict in its favor, which prayer the court refused. In its prayers Nos. 2 and 3 the company, in effect, asked the court to instruct the jury that, if the note given for the first premium fell due and remained unpaid at the date of the death of Cox, they would find for the company. The court modified these prayers by adding’ thereto the words, “unless you further find that the payment of the note was extended or forfeiture of the policy waived.” The appellant duly excepted to the ruling of the court in refusing prayers Nos. 2 and 3, and in giving them as modified.

The company prayed for instruction No. 4 as follows: “The defendant company was not required to notify Mr. Ira L. Cox of the date when his note fell due, and if the defendant did notify him, or addressed notice to him which was received by some one else after his death and after the maturity of said note, stating, in said letter or notice, that said note would be due November 1, 1918, that would not revive the policy if the same had already been forfeited for the nonpayment of said note.” The court refused this prayer, and the company duly excepted.

On its own motion the court defined the issues raised by the pleadings, and instructed the jury to the effect that, under the terms of the policy, if the note given for the payment of the first premium remained due and unpaid at the time of the death of Cox, they would find in favor of the company, unless the time for the payment of the note was extended by the company or the forfeiture waived; that if the company, after knowledge of the forfeiture, neglected to insist upon it, but, by its conduct, recognized and treated the policy as being in force, and induced the appellee to believe that the company would not insist upon the forfeiture and to incur expense and trouble by reason of such belief, then the company waived the forfeiture, if any, and the appellee was entitled to recover.

The court defined waiver as the relinquishment by the company of some known right, and told the jury that the burden was upon the appellee to prove that the premium note had been extended and that the forfeiture of the policy for nonpayment of premium had been waived. The court further instructed the jury that the testimony adduced in regard to the compromise or settlement between the appellee and the company was not allowed'for the purpose of showing liability oh the part of the company, but.only in so far as it might shed light on the question of whether or not the company waived its right to a forfeiture of the policy for the nonpayment of the premium when due. The appellant duly excepted to the ruling of the court in giving the instructions on its own motion. The jury returned a verdict in favor of the appellee in the sum of $1,000, with interest from the date of the death of Cox. The court rendered judgment in favor of the appellee in the sum of $1,265 on the policy and assessed a penalty of 12 per cent, thereon and attorneys’ fees for $250. From that judgment is this appeal.

The undisputed testimony shows that the note given for the payment of the first premium, due October 20, 1918, was not paid. The policy, which was the contract of insurance, under the express provisions thereof became null and void upon’the nonpayment of the note when same was due. Citizens’ Life Ins. Co. v. Morris, 104 Ark. 288; Patterson v. Equitable Life Asso., 112 Ark. 171-179. The note for the first premium was due on or before the 20th of October, 1918, and, unless the time for the payment of this note was extended by the company, prior to the death of Cox, to a time beyond his death, then the policy was null and void after October 20, 1918, and was null and void on the 28th of October, 1918, the date of Cox’s death.

In Patterson v. Equitable Life Assn., supra, we held that, after the death of the insured, the time for the waiver of the rights of the insurance company to declare a forfeiture had passed, except such waiver as might have been based upon knowledge of the death of the insured. Therefore the letter written by the company to Cox on the 30th of October, 1918, to the effect that his premium note, dated October 2, 1918, would be due November 1,1918, would not have the effect of extending the time for the payment of the premium note. Unless the time for the payment of the premium note had been extended before this letter was written, and, some time before Cox’s death, October 28, 1918, had been extended to a period beyond his death, then the policy at the time of Cox’s death had become null and void, and the appellee would have no rights thereunder. If this letter were all the testimony in the record tending to prove that there had been an extension of time for the payment of the note for the first premium to a time beyond the death of Cox, it would not be sufficient for that purpose, because it was written after the death of Cox, and therefore he knew nothing of it. But there is testimony in the record tending to prove that, two or three weeks before Cox’s death, he, through the Bank of Rector, had correspondence with the company concerning the payment of the premium note on his policy. In four or five days the company answered. While there is no positive testimony that the answer of the company stated that it had extended his premium to November 1, 1918, yet this letter, when taken in connection with the letter of the company of October 30, 1918, stating that the note would be due November 1,1918, tends to prove that the correspondence between Cox and the company through the Bank of Rector had resulted in an agreement on the part of the company to extend the time for the payment of the note for the first premium to November 1,1918. At least the jury might have so found from this testimony. It made an issue which the court was justified in submitting to the jury as to whether or not the time for the payment of the first premium note had been extended, before the death of Cox, to November 1, 1918. It is not disputed that this correspondence on the part of the company was by its secretary or one having authority to speak for the company. The testimony therefore was relevant.

The next question is, was there any testimony to warrant the trial court in submitting to the jury the issue as to whether or not the company waived the nonpayment of the premium note due October 20, 1918, if the time for the payment of such note had not been extended? The company, after the death of Cox, and at the request of the appellee, sent her blank forms for making proof of death. This was on November 9, 1918. The assistant secretary of the company testified that she conducted the correspondence between the company and the appellee; that Morgan, the secretary, was absent from the office at the time. At the time she received the letter calling for the blank proofs of death and answered by sending the same, she did not know that the note for the first premium had not been paid. It had been sent out for collection, and had not been returned to the office. These blanks for making proof of death contained' the recital that “the furnishing of blanks on which to make proofs of any claim against the company shall not be an acknowledgment of any liability.of said association.” Therefore the furnishing of these blanks and the correspondence between the appellee and the company with reference thereto, if this were all, would not be any evidence whatever of a waiver of the forfeiture for the nonpayment of the premium. But this is not all the evidence on this issue. The brother of the appellee, who was present at the time of Cox’s death, stated that 'he attended to making the proof of death for his sister. He had the blanks filled out, and took them in person to the home office of the company at Campbell, Missouri, about two or three weeks after the death of Cox. He called for Morgan, the secretary, and was informed that he was absent, and witness then stated that he desired to speak to the one in authority who was running the business, and a lady came out and told the witness that they could not make a settlement, as Morgan was in St. Louis. Witness told the lady that he would leave the proofs, and, when Morgan returned, they could take it up and make settlement, and she replied, “All right.” Nothing was then said about the policy being forfeited. On December 31, 1918, about two months after the death of Cox, the agency secretary of the company wrote to one Weiderman at Rector, saying: “I think Mr. Morgan will be down to see you in regard to the Ira L. Cox claim when he returns from this trip.” In about three and a half months after the death of Cox, the father of Mrs. Cox wrote to the company a letter in which he said the company had stated that it would be ready to pay all claims after the 10th of the month, and that he hoped to hear from the company soon. In answer to this letter the assistant secretary of the company, in acknowledging receipt of same, stated that the same had been placed on the desk of the secretary, Morgan, for his attention on his return to Campbell. The father of Mrs. Cox also had a talk with the superintendent of agencies of the company, who sometimes settled claims that were placed in his hands by the board of directors of the company, and this agent stated that he had talked it all over, and the company could not settle at the face value of the policy, but that they could settle at thirty cents on the dollar, and would do so if she would accept that. In this conversation nothing was said about the policy having lapsed. Appellee, then Mrs. Yaden, testified that, on the 28th of February, 1919, in company with her husband, she went to the home office at Campbell, Missouri, to talk to the company about her claim. She talked to the secretary and general manager, and also to the superintendent of agencies. No claim was made by the company at that time that the policy was forfeited, but, on the contrary, they said they would settle with her for $300. Witness offered to compromise with them for $500, and they stated they would pay it if witness would take out insurance in the new company.

It occurs to us that the above affords substantial testimony to carry to the.jury the question of whether the company, after having knowledge that the note for the first premium had not been paid at the time of the death of Cox, did not, by its affirmative conduct for several months thereafter, induce the appellee to believe that it would not insist on a forfeiture because of such nonpayment, and thereby cause her unnecessary expense, and put her to unnecessary trouble while acting under the belief that the company intended to settle her claim. Unless the time for the payment of the premium note had been extended, the company, after it ascertained that this premium note had not been paid before the death of Cox, knew that the policy had, by the nonpayment of such premium note, been ipso facto forfeited. Having such knowledge, unquestionably, if it had so advised the appellee, she and those acting for her would not have taken the time, and incurred the expense, and undergone the trouble, of corresponding and making trips to Campbell in order to have the claim adjusted and paid by the company. A simple word passed to the appellee and those representing her, to the effect that the policy was forfeited, that the company was hot liable, and would not pay, would have settled the matter and excluded any belief on the part of the appellee that the company intended to settle with her. Instead of this, the company, by its conduct — at least the jury might have so found — held out hope to her that the policy would be paid, and, in the belief that it would be paid, she put herself to the expense and trouble of doing things she thought would be necessary to effect the payment of her claim. The jury might have found that the company, in arousing these false hopes, had waived' a forfeiture, under the doctrine announced by this court in numerous cases. It will be remembered that the court excluded from the consideration of the jury the testimony in regard to the settlement or compromise as indicating financial liability on the part of the company, but ruled that such testimony might be considered in so far only as it indicated a course of conduct on the part of the company tending to prove that it had not declared and insisted on a forfeiture by reason of the nonpayment of the premium note. The testimony was relevant to the issue of whether or not there had been a waiver of forfeiture. If the offer of compromise or part settlement had been coupled with a denial of liability, the case would have been different.

In 25 Cyc., p. 872, it is said: “If, with notice of facts entitling it to avoid the policy, the company enters into negotiations for a settlement, or requires the furnishing of proof of death, at some trouble and expense, it is estopped from insisting on a forfeiture.” See also 14 R. C. L. 1195, § 373.

The doctrine is firmly established by the highest courts in this country, and approved by us in numerous cases, that “forfeitures are not favored in law,” and that “courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, on which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured honestly to believe that, by conformity thereto, a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop, and ought to estop, the company from insisting on a forfeiture, though it might be claimed under the express letter of the contract.” Insurance Co. v. Eggleston, 96 U. S. 577, quoted by us in Insurance Co. v. Gibson, 53 Ark. 494; Interstate Business Men’s Accident Association v. Green, 132 Ark. 548. As is said in 14 R. C. L. 1181, § 357, “waiver of a forfeiture, though in the nature of an estoppel, may be created by acts, conduct, or declarations insufficient to create a technical estoppel, and the courts, not favoring forfeitures, are inclined to grasp any circumstances which indicate an election to waive a forfeiture.”

Our conclusion therefore is that the court did not err in refusing appellant’s prayer for a peremptory instruction in submitting the issues to the jury. The court also correctly declared the law applicable to these issues. The judgment is correct, and it is affirmed.

McCulloch, C. J.

(dissenting). It is entirely a matter of speculation, and without substantial support in the proof, that the company ever wrote a letter to the insured extending the date of payment of the note to November 1, 1918. When the notice was sent out on October 30, it was after the death of the insured, the company not being advised of that fact, and it is without probative force, and has no place in this case. It does not tend to establish the fact that there' had been an agreement for an extension of the note, nor is there, according to my view, any ground for holding that the company waived the forfeiture after the death of the insured by entering into negotiations with appellee. There was nothing in the world done by the agents of the company to induce appellee to change her course of conduct or to incur expense other than the mere fact that they permitted her to carry on negotiations in an effort to secure payment of the policy. The blanks sent out for proofs of death contained an express notice that no liability was recognized.

The company denied liability under the policy, and all that was offered in settlement was by way of compromise. It is very well settled by decisions of this court, and it is an elemental principle of the law of evidence, that evidence of an offer to compromise is not competent in the trial of an issue concerning the liability for the matter sought to be compromised. The court erred in admitting the testimony as to compromise for any purpose. The trial court ruled that the testimony concerning the proposed compromise was not competent “as indicating financial liability on the part of the company,” but that the testimony could be considered as indicating a course of conduct on the part of the company tending to prove that it had waived the forfeiture. The effect of this ruling was to tell the jury that the testimony was not competent as directly establishing liability, but it might be considered indirectly for the purpose of establishing liability in showing a course of conduct on the part of the company which rendered it liable under the policy. It seems to me to be a very novel proposition, to say the least of it, to declare the law to be that testimony concerning a proposed.1 compromise is not admissible as direct evidence of liability, but that it may be received as indirect evidence as tending to establish a waiver of forfeiture. The evidence was not admissible at all, for, if received at all, it was necessarily considered for the purpose of establishing liability, i. e., a waiver of the defense of forfeiture.

Mr. Justice Smith concurs in this dissent.


author: Wood, J.

text:
    Stephens v. State.
    Opinion delivered April 28, 1924.
    1. Intoxicating liquors — storing in hotel — instruction.—In a prosecution for storing- liquor in a hotel, in violation of Crawford & Moses’ Dig., § 6169, an instruction defining such crime in the language of the statute is not erroneous for failure to define a hotel, in the absence of a request therefor; the word “hotel” having a well understood meaning.
    2. Intoxicating liquors — aider and abetter. — In a prosecution for storing liquor in a hotel, in violation of Crawford & Moses’ Dig., §§ 6165, 6169, evidence held to warrant an instruction as to aiding and abetting in the crime charged.
    3. Criminal law — repetition op instructions.' — It was not error to refuse an instruction covered by one given by the court on his own motion.
    4. Intoxicating liquors — storing liquor in hotel. — Where a sample room adjoining a hotel was used in connection with the operation of the hotel, it was within Crawford & Moses’ Dig., § 6169, making it unlawful to store beverages described in § 6165 in a hotel.
    Appeal from Clay Circuit Court, Western District; G. E. Keck, Judge;
    affirmed.

      F. G. Taylor, for appellant.

      J. 8. TJtley, Attorney G-eneral, and John L. Garter, Assistant, for appellee.
   Wood, J.

The appellant was convicted of the crime of storing liquor in a hotel, and, from a judgment fining him in the sum of $100, he appeals.

■ H. W. Lasater, a witness for the State, testified as follows: ‘ ‘ Q. It is alleged in an indictment here that, some time last year, he (Stephens) had kept liquor in his hotel up there. Tell the jury about any time when you went there and got liquor in the hotel. A. I never got any in the hotel. Q. Well, in what part of the building there? A. In the sample-room. Q. To the hotel? A. Yes sir. Q. Built on the back end there? A. Yes sir.’’

Witness then testified that he wanted a drink, and went to Bill Stephens and asked him if he had any, and he said that he did not, but thought that he knew where there was some, and told witness where it was. It was some kind of whiskey. Witness did not remember how much. It was in a bottle, and witness drank a good part of it. Witness left it there where Stephens told witness he would find' it. That was in Corning, Clay County, Arkansas, and within a year prior to the time witness went before the grand jury. There was -no entrance-way from the hotel to this store-room or sample-room. You entered the sample-room from the north side. The hotel is a two-story building, and the sample-room only one story high. The sample-room has a different roof over it. A person going from the hotel to the sample-room would have to go out the front door on the street that passes the depot, turn north a little ways, and then west, back to the sample-room, which is a distance of about 100 feet. The room mentioned is used as a sample-room for the traveling men sometimes.

There was testimony on behalf of the appellant tending to prove that the storage or sample-room adjoined the hotel on the west side, and had no door by which it could be entered from the main hotel building. It was sometimes used for storing eggs, and a speeder of some kind, and also some wire and insulators, telephone-or telegraph supplies. There was only one entrance to the sample-room, and that was on the north side. To go into the sample-room from the hotel proper, you have to go all around the hotel, west and then south, to get back into the dining-room from the sample-room into the kitchen. There are now stowed in the sample-room cots, a cook-stove, bedding of different kinds, and stools. These articles belong to five different parties, Stephens owning a one-fifth interest in them. The sample-room was also used as a sample-room by the drummers. The room is not separate and apart from the other building. It joins it. The west wall of the hotel is the east wall of the sample-room. You can step out of the dining-room on the west side, down a piece, to the storage-room. It is not kept open for the public use. The hotel is known as the St. James Hotel, and Stephens owns it, and has been running it for years. The hotel is built of brick on the outside. The material of the outside walls of the other building are all timber, wood and sheet iron over the studding.

The court, after defining the crime in the language of the statute, instructed the jury as follows: “If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, Bill Stephens, did on the first day of January, 1923, or at any time within one year next before the filing of the indictment herein, which was the 19th day of June, 1923, in the "Western District of Clay County, Arkansas, unlawfully store, keep, possess and have in his possession alcoholic, vinous, malt, spirituous and fermented liquors in the St. James Hotel in Corning, Arkansas, it will be your duty to find him guilty, and, if you so find, to fix his punishment at a fine not less than $100 nor more than $1,000; that, if you find from the evidence that some other person than the defendant herein, in the Western District of Clay County, Arkansas, at any time within one year next before the filing of the indictment, did unlawfully store, keep, possess and have in possession alcoholic, vinous, malt, spirituous and fermented liquor in the St. James Hotel, in Corning, Arkansas, and further find, beyond a reasonable doubt, from the evidence in this case, that the defendant herein, Bill Stephens, stood by and aided and abetted, or assisted, or, not being present, aided, abetted, or assisted, advised or encouraged the perpetration of said crime, then the jury should find him guilty, and fix his punishment as defined in the former instruction.”

The court further told1 the jury, in its instruction number 3, that the essence of the crime was the storing of liquor in the hotel, and, before they could convict the defendant, they must find from the evidence in the case, beyond a reasonable doubt, that the room in which the liquor was alleged to have been found or stored was a part of the St. James Hotel, in Corning, Arkansas, and used by the proprietor for a part of the hotel, and in connection with the use and general operation of the hotel. Otherwise, it would be the duty of the jury to acquit the defendant.

The defendant asked the court to instruct the jury to return a verdict of not guilty. The defendant also prayed the following instruction: “Before you can find the defendant guilty, you must find from the evidence, beyond a reasonable doubt, that he stored intoxicating liquors in the St. James Hotel in Corning, Arkansas. You are the judges of whether or not the room where the liquor was found by the witness was in fact in the hotel, and, if you find the liquor was in the building adjoining the hotel and not a part of the hotel, you will find the defendant not guilty, or, if you have a reasonable doubt as to whether or not the building was the hotel or a part of the hotel, you will find the defendant not guilty.” The court refused1 to give this instruction, to which ruling the appellant objected and duly excepted.

The appellant contends that the first instruction given by the court was erroneous because it failed to define what it takes to constitute a hotel, under the statute. Section 6169, C. & M. Digest, provides, in part, as follows: “It shall be unlawful for any person, firm or corporation to store, keep, possess, or have in possession, or permit another to store, keep, possess or have in possession, any of the liquors and beverages mentioned in § 6165 of this act * * * in any hotel,” etc.

The court, in its instruction No. 1, defined the crime in the language of the statute. It was not necessary for the court to define the word “hotel” as used1 in the statute any further than the statute itself defined it. The word “hotel” is not a technical term, but, on the contrary, is a word in common and general use which has a well-understood meaning. If the appellant desired to have it more specifically defined, it was his privilege to ask the court to so define it, and his duty to do so, before he could' predicate error upon the failure of the court to further define it. Vassar v. State, 75 Ark. 373; Hayes v. State, 129 Ark. 324; Pruitt v. State, 150 Ark. 279.

Instruction No. 2 given by the court told the jury, in effect, that, in misdemeanor cases, there were no accessories; that those who stand by aiding, abetting, or assisting, or those who, not being present, have advised and encouraged the commission of the offense, were principal offenders. The appellant objects to the giving of this instruction on the ground that the same was abstract. There was some testimony from which the jury might have found that some one had put the whiskey in the sample-room with the knowledge and permission of the appellant. The jury might have found that the appellant was the owner and proprietor of the hotel and also owned and controlled the sample-room, which was a part of the hotel. The instruction therefore was not abstract, and the court did not err in giving same.

The appellant contends that the court erred in not granting its prayers for instruction No. 2, in which the jury would have been told that they wére the judges of whether or not the room where the liquor was found was, in fact, in the hotel. This instruction was fully covered by instruction No. 3, which the court gave on its own motion. Wilson v. State, 130 Ark. 204-208; Mangrum v. State, 156 Ark. 306.

The appellant, in the last place, contends that the court erred in not directing’ a verdict in his favor because there was no testimony to prove that the room or place in which the liquor was found was a hotel, and that there was no testimony to 'Sustain the verdict. We cannot concur with the appellant in this view. Witnesses testified that the sample-room where the liquor was found was the sample-room to the hotel; that it was used as a sample-room for traveling men. If the sample-room adjoining the hotel building was in fact a part of the hotel — that is, was being used by the proprietor in connection with the use and general operation of the hotel, then the appellant, in contemplation of the law, was guilty if he stored' or allowed whiskey to be -stored therein, and this would be true even though the appellant may have used or allowed the room to be used by others for the storage of other things as well as whiskey. See Cole v. State, 160 Ark. 181. There is no error. Therefore let the judgment be affirmed.