text:
    Mooney v. Alnett.
    4-3386
    Opinion delivered March 5, 1934.

      J. E. Gregson and J. Loyd Shouse, for appellant.

      W. J. Tate, Tex Coxsey and Festus O. Butt, for appellee.
   Humphreys, J.

This suit was instituted in the chancery court of the eastern district of 'Carroll County by appellees against appellant to set aside a deed of date January 5, 1933, executed by Mrs. E. W. Mooney to appellant, her husband, to about twenty or twenty-five acres of land in said county upon which they resided, on the ground that the same was procured through the undue influence of appellant over his wife, Mrs. E. W. Mooney, at a time when she was not mentally competent to transact business.

Appellant filed an answer, admitting the execution of the deed, but denying that he procured same through undue influence over his wife at a time when she was incompetent to transact business.

The cause was submitted to the court upon the pleadings and testimony, resulting in a decree cancelling the deed on the grounds alleged in the complaint, from which is this appeal.

About twenty-six years ago, Mr. Mooney married a widow, the mother of two daughters. One of the daughters died, and the other married Mr. Alnett, who joined her in this suit. Mrs. Mooney had been blind for about twelve years when she died, but she had learned to keep house notwithstanding her affliction. Mr. Mooney was kind and attentive to her, and they lived happily together during their entire married life. Appellees resided with them a part of the time. They all lived in Larned, Kansas, until they moved to Arkansas in the spring of 1926. .Mrs. Mooney received a small estate from her first husband, from which she realized $250 in cash. In 1924 or 1925 Mr. Mooney inherited $2,500 from a brother. Mr. Mooney purchased tfie tract of land in question after coming to Arkansas, and had the deed made to Mrs. Mooney, so that if he should die she would not be disturbed. They were afterwards advised that he would lose the home in case Mrs. Mooney died first, and it was agreed between them that she would convey the home to him, but she neglected to do so until both became ill with light cases of “flu” in January, 1932. On January 5, 1932, while both were in bed sick, appellant sent for a justice of the peace, who prepared a deed conveying the land in question, upon which they had been and were residing as their home. Mrs. Mooney, being blind, signed same by mark, which signature was witnessed by two men who came in about the time she signed same. One of them thought she was not able to transact business and the other expressed no opinion about it. When appellant sent for the justice of the peace, Mrs. Mooney got the old deeds out of the trunk for him to use as a guide in drafting the new deed when he should arrive. After the execution of the deed, the justice of the peace handed it to Mr. Mooney, who later gave it to Mrs. Mooney to put in the trunk, and it remained where she put it until after her death some fourteen months 'later. Appellant then recorded it.

The justice of the peace, J. W. Ash, testified, in substance, that both Mr. and Mrs. Mooney were sick in bed when he prepared and she signed the deed; that she sat on the edge of the bed when she signed by mark and acknowledged same; that he did not fill out the blank relative to dower and homestead and certify to that part of it because Mr. Mooney was present; that the only persons present were Mr. Mooney, Mrs. Stewart and himself; that he' would not have had her sign the deed if he had thought she was unable to transact business; that he saw nothing out of the ordinary except that both were sick in bed.

Mrs. Stewart testified that she was a neighbor taking care of Mr. and Mrs. Mooney. In her first statement, she said she was in and out when the deed was being prepared and signed, but, in her rebuttal testimony, she said that she was present all the time; that the justice of the peace did not ask Mrs. Mooney if she executed the deed of her own free will and accord; that Dr. W. L. Watson told her Mrs. Mooney’s temperature was running 104% and that she did not think with this much fever; she was competent to transact business; that she did not regard Mrs. Mooney either crazy or delirious; that the night before the deed was signed she was in the adjoining room and heard Mr. Mooney ask Mrs. Mooney to make a deed to him and heard her say she did not want to do so.

Dr. W. L. Watson testified that he was called to see Mrs. Mooney in January, 1932, and found both her and her husband in bed with light attacks of “flu”; that he did not remember taking their temperature; that they responded to his treatment, and recovered in a short time; that he did not tell any one that Mrs. Mooney’s temperature was running 104½ degrees; that he found nothing else the matter with them.

Mr. Mooney testified, relative to the sick spell of himself and wife, that they were in bed a short time with light attacks of. “flu” from which both soon recovered; that, while they were sick, Mrs. Mooney executed a deed to him for the twenty or twenty-five acre home he had bought and put in her name of her own free will and accord, without any undue influence by him, and for fear she might die. He denied having any conversation with her about it the night before it was executed.

The record reflects that during their illness a number of neighbors called and some of them were of the opinion that, owing to Mrs. Mooney’s illness, she was not competent to transact business, and others thought she was. Also that Mrs. Mooney wrote for appellees to come to them on account of their illness, which they did. They remained with them for some fourteen or fifteen months or until a short time after the death of Mrs. Mooney. Also that they recovered and that Mrs. Mooney thereafter was sound in mind and body until she died.

Mrs. Elizabeth Alnett testified that, after her mother got well, she claimed she had never made a deed when she asked her whether she had done so.

In our opinion, this testimony fails to show that Mrs. Mooney was incompetent to transact business when she executed the deed, or that she was- unduly influenced to do so by appellant. It was the just and equitable thing for her to do as he had paid for the property with his own inheritance, and had been devoted and kind to her during her long affliction. Further, the execution of the deed was but the fulfillment of Mrs. Mooney’s avowed purpose after she found out that in case of her .death, as the title stood, her husband would lose the home.

On account of the error indicated, the decree is reversed, and the cause is remanded with directions to reinstate the deed and dismiss the complaint for -want of equity. *


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Equitable Life Assurance Society v. Bagley.
    4-3396
    Opinion delivered March 5, 1934.

      W. P. Feazel and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      James S. McConnell, for appellee.
   Humphreys, J.

Appellee recovered judgment against appellant in the trial court for $387.90, $100 attorney’s fee, and 12 per cent, statutory penalty under the total disability clause in two indemnity insurance policies issued on the 14th day of August, 1931, representing the premium payments which were made by appellee in the month of November, 1931, and the disability benefits which accrued in accordance with the terms of the policies up to and including August 19,1933, the date of the trial, together with interest on such accrued installments.

An appeal has been duly prosecuted to this court challenging that part of the judgment allowing benefits for total disability to appellee from September 15, 1932, to the date of the trial on August 19, 1933. It is conceded that the evidence adduced on the trial was sufficient to sustain the finding and consequent judgment under the provisions of the policies that appellee was totally disabled from the date of the injury until September 15, 1932, on which date he attempted to secure re-employment. The total disability provision in the policies is as follows:

“Disability is total when it prevents the insured from engaging in any occupation for remuneration or profit.”

This identical clause, as well as clauses of similar import contained in accident indemnity policies, has been construed by this court as meaning such a disability as renders the insured unable to perform the substantial and.material acts of his business in the usual and customary way, and not such disability as renders him absolutely helpless. Travelers’ Protective Association of America v. Stevens, 185 Ark. 660, 49 S. W. (2d) 364, and cases therein cited on the point.

Appellant’s contention is that the trial court erred in finding and adjudging that appellee was totally disabled after September 15, 1932, within the meaning of said disability clause as construed by this court. The sole question presented by this appeal therefore is whether the evidence is sufficient to support the finding and judgment of the court.

The material facts reflected by the record are, in substance, as follows:

On the date the policies were issued and at the time appellee was injured he was engaged in running a distributing station for the Magnolia Oil Company. The distribution of the company’s products to farmers and retailers was by truck. The duties incident to appellee’s position required a strong, able-bodied person, and, in order to obtain such a position, one had to stand and pass a satisfactory examination. Appellee received an injury in an automobile wreck on October 15,1931, which practically destroyed the use of his left hand and arm so far as labor was concerned. On account of this injury, he was discharged by his employer on February 15,1932, and did not seek employment until September 15, 1932. At that time he had learned to drive an automobile with one hand, but not with the same security and speed he formerly did. He was unable to secure employment in any avocation he had theretofore followed until April 12,1933, when he was employed by a friend, Walter West-brook, largely through sympathy, at a salary of $30 a month, to assist him in running distributing oil and gasoline station. He was unable to do many things connected with the business, such as lifting tanks of considerable weight, changing tires, covering as much territory in the solicitation of business as he formerly did, and in loading and unloading the truck. In serving the customers, he had to depend on them for assistance. If the roads were in bad condition, he did not venture out to solicit business or deliver the products. The only lifting he could do was with his right hand and with his right knee or leg. Walter Westbrook, as well as appellee himself, testified that he could not install equipment, unload tank cars, load motor oil on the truck, or deliver many of the products to the customers without aid, all of which duties were required of an oil and gasoline agent or of one in charge of a distributing station.

There is no dispute in the testimony as to the permanency of the injury, and appellee’s inability to perform, in the usual and customary way, the hard labor incident to any avocation or occupation for which he was qualified before the injury.

The facts detailed above disclose appellee’s inability after the date of the injury and until the date of the trial to perform, in the usual and customary way, the substantial and material acts of any avocation or occupation for which he was qualified. The instant case is ruled by the cases of Ætna, Life Insurance Company v. Phifer, 160 Ark. 98, 254 S. W. 335, and Mutual Life Insurance Company v. Marsh, 186 Ark. 861, 56 S. W. (2d) 433.

No error appearing, the judgment is affirmed.


author: Mehaffy, J.

text:
    Sovereign Camp W. O. W. v. Easley.
    4-3388
    Opinion delivered March 5, 1934.

      Arnold & Arnold, for appellant.

      J. F. Quillin, for appellee.
   Mehaffy, J.

This is a suit on an insurance policy issued to Jesse A. Easley, the husband of appellee and the beneficiary named in the policy. On April 28, 1914, Jesse A. Easley applied to the appellant for membership and for a beneficiary certificate in the sum of $1,000. On May 8, 1914, the certificate was issued to him. On May 1, 1929, Jesse A. Easley, who was at that time 41 years of age, surrendered the certificate for cancellation, and applied for a new certificate to be issued in exchange for the certificate issued May 8,1914. Thereupon the appellant issued its certificate in the amount of $1,000 on the twenty-payment-life plan. The appellee was named beneficiary in each certificate. This suit is to recover on the certificate last mentioned.

The case was tried in the lower court by the court without the intervention of a jury on an agreed statement of facts. The court, after hearing the evidence and argument of counsel, entered judgment in favor of appellee in the sum of $911.13 with interest at 6 per cent, from April 25, 1933, to date of said judgment, and interest on the total of principal and interest at 6 per cent, from September 12, 1933. To reverse this judgment, this appeal is prosecuted.

Appellant urges three reasons for reversal. The first question to consider is, as stated by appellant: “Whether or not any cash values were available to insured under the automatic premium loan feature until thirty-six monthly premium payments had been paid upon said certificate by the insured. Appellant contends that it was a condition precedent to the availability of any of the cash values set out in the table of cash values in said certificate, that there should have been paid thirty-six monthly payments upon said certificate.”

It is admitted by appellant that this case involves a certificate of insurance identical in every respect with the case of the Sovereign Camp of Woodmen of World v. Hardee, ante p. 542. The court in that case decided against the contention of the appellant, and, inasmuch as the first proposition involved in this case is identical with the case above referred to, it is controlled by that case, and it becomes unnecessary to discuss this first proposition.

Appellant’s next contention is that there was not sufficient cash value in said certificate under the automatic premium loan feature to keep it alive from September, 1930, to March 29, 1933, the date on which Jesse A. Easley died. It is admitted that Easley died on that date; that the appellant was duly informed of said death on April 25, 1933, and denied all liability under said certificate, on tbe ground, as stated in a letter from appellant, that Easley was suspended October 1, 1930, for tbe nonpayment of dues and assessments. The appellant alleged that tbe certificate became null and void on tbe date of bis suspension, and that there was no liability whatever under tbe certificate. Tbe agreed statement of facts recited that all monthly installments were duly paid on said new beneficiary certificate by tbe said Jesse A. Easley up to and including tbe month of August, 1930, and it is further agreed by tbe parties that, at tbe time of tbe death of said Easley, be was in arrears to tbe appellant for 30 monthly premiums, and that tbe total amount of said arrears, with compound interest at 5 per cent, per annum, was $88.87.

Tbe original certificate issued to Jesse A. Easley was on May 8, 1914, which was for $1,000. It is further agreed by tbe parties that tbe certificate involved in this suit was issued on May 1, 1929, at which time tbe insured, who was 41 years of age, surrendered for cancellation and substitution tbe original certificate, and made application for insurance in exchange therefor, a new form twenty-payment-life certificate for the sum of $1,000, with no lien or interest charges against it, and it is agreed that tbe appellee is tbe beneficiary.

Appellant contends that appellee, in her calculation, arrives at the amount by departing from tbe automatic premium-loan provisions, and reverting back to option C, which is tbe extended insurance feature.

The policy provides that it is effective as to payment period, values and provisions as if issued on May 1, 1927, and tbe age of tbe insured is fixed at 39 years. It is contended that tbe policy lapsed for nonpayment of September, 1930, assessments. Tbe calculations, in order to determine the amount available to pay premiums, must be calculated as if tbe policy issued on May 1, 1927, and not three years after tbe date of issue, May 1,1929. Taking this as tbe date, May 1,1927, tbe values as contended for by appellee are from that date, or three years and four months to tbe time when payment of premiums ceased. It is agreed that tbe amount of the arrears is $88.87, so that, in order to keep the policy in effect, the available values must have equaled that amount at the time of the death of Easley.

The policy provided for a monthly payment of $2.78. It also provided that the cash or loan value at the end of the third year -would be $42.95. Under the policy, the cash value increased each month upon the payment of premiums, and the payment up to and including August, 1930, increased the cash value to $50.54. The method of calculation adopted Ny appellee, which we think is correct, shows that the cash values available to pay premiums or assessments exceeded the' amount due from Easley at the time of his death.

The cash value in the certificate must be sufficient to keep the policy alive or it will lapse, but the appellant’s third proposition is whether or not the automatic advancement of premiums by appellant, under the automatic premium-loan feature, served to increase or enhance the cash value of the certificate so as to keep it in effect up to the date of insured’s death, March 29, 1933.

In order to prevent a forfeiture, automatic advancement of premiums should increase or enhance the cash value so as to keep it alive. All the provisions of the policy must be construed together, and if, when so construed, the automatic advancements increase the amount, it should be considered, and the insured have the benefit of it, so as to prevent a forfeiture. When this is done, it is a mere mathematical calculation as to whether the accumulations equal the $88.87, premiums due.

We think, when the entire provisions of the policy are construed together, the evidence shows that there were sufficient funds available to prevent a forfeiture. The facts in this ease are agreed on, and it is purely a question of law.

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


author: McHaney, J.

text:
    Parker v. Grau.
    4-3392
    Opinion delivered March 5, 1934.

      John M. Parker, for appellant.

      Neill Bohlinger, for appellee.
   McHaney, J.

Appellant, being indebted to appellee for merchandise bought in the sum of $15.80, on Monday, November 10, 1930, in the forenoon, gave appellee his cheek for said amount, drawn on the Farmers’ Bank of Dardanelle, where appellant at all times then and thereafter had more than sufficient funds to paj’" same. Appellee neglected to cash the check that day. The next day, Tuesday, November 11, was Armistice Day, a holiday, and the bank was closed. The check was not presented at any time during the week of November 10, and the bank failed to open for business on Monday, November 17, but was found to be insolvent, and was taken over for liquidation by the Bank Commissioner.

Thereafter, appellee demanded that appellant take up his check, which was refused, and this suit followed. Trial to a jury in the circuit court on appeal from the justice court resulted in a verdict and judgment for appellee.

We think the circuit court erred in refusing to direct a verdict for appellant at his request. The law is well settled in this State. Our statute, § 7952, Crawford & Moses ’ Digest, provides that: “A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” This is one of the sections of the Uniform Negotiable Instruments Act of February 21, 1913. In Burns v. Yocum, 81 Ark. 127, 98 S. W. 956, decided in 1906, before the passage of said act, this court held, quoting second syllabus: “Where the payee of a check and the bank on which it is drawn are in the same place, reasonable diligence requires the cheek to be presented for payment not later than the day after it is received, and delay beyond that time without excuse will discharge the drawer from liability if he is injured by the delay.” See also Pelt v. Marlor, 95 Ark. 111, 128 S. W. 554. Several cases have arisen since said act. In Federal Land Bank v. Goodman, 173 Ark. 489, 292 S. W. 659, we held that a check must be presented for payment within a reasonable time after its receipt, and that what constitutes a reasonable time depends upon the circumstances of the particular case, — “such time as a prudent man would exercise or employ about his own affairs.” Section 7763, Crawford & Moses’ Digest, provides: “In determining what is a ‘reasonable time’ or an ‘unreasonable time,’ regard is to be had to the nature of the instrument, the usage of trade or business if any with respect to such instruments, and the facts of the particular case.” See also George H. McFadden Bros. Agency v. Keesee, 179 Ark. 510, 16 S. W. (2d) 994; Board of Directors of St. Francis Levee District v. Hagan, 180 Ark. 33, 20 S. W. (2d) 314; Berry v. Harris, 186 Ark. 481, 54 S. W. (2d) 289.

Appellee attempts to excuse his delay in presenting the check for payment by stating that he went to Boone-ville on the 11th, and from there to Little Rock, where he remained until his return on Saturday after banking hours; that, although his place of business was open during his absence, he had locked the check up in the safe, and it was not available to his employees for collection during his absence. The bank was less than 100 steps from his store. We are of the opinion that the facts stated are not sufficient to excuse the delay of a week in presenting the check, and that appellee was guilty of negligence as a matter of law in failing to present the check for payment sooner, or not later than November 12, to appellant’s damage in the amount thereof.

There was therefore no question of fact to be submitted to the jury, as appellant’s request for a directed verdict should have been granted.

Reversed, and cause dismissed.


text:
    Roberson v. Roberson.
    4-3401
    Opinion delivered March 5, 1934.

      T. B. Abington and Culbert L. Pearce, for appellant.

      John E. Miller, C. E. Yingling and R. H. Lindsey, for appellee.
   McHaney, J.

Appellant is the widow and appellee is the mother of Marion F. Roberson, who died testate in the State Hospital for Nervous Diseases on November 20, 1932. The controversy between them arises over the proceeds of a life insurance policy on the life of said decedent in the sum of $905.68. The policy was originally made payable to his estate, but on September 24, 1931, he exercised the right reserved to him in the policy and changed the beneficiary from his estate to his mother, the appellee. On October 22, 1931, decedent executed a will by which he attempted to bequeath to his mother the proceeds from the same insurance above mentioned. This will was admitted to probate after his death over appellant’s objection, but no appeal was taken therefrom, appellant thereafter electing to renounce the will.

In April, 1933, this action was instituted by appellee against the insurance company, and the executors named in the will and appointed by the court, to collect the proceeds of said policy. The company answered, admitting the indebtedness above stated, paid said sum into the registry of the court, and was discharged. Appellant intervened in the action, alleging the invalidity of the change of beneficiary on the ground of mental incompetency of the insured at the time the change was made, and that appellee had made an election of remedies, that is on the will, and that she was now precluded from a recovery on a change of beneficiary. Motion to dismiss the complaint on the latter ground was overruled.

Trial to a jury resulted in a verdict and judgment for appellee.

For a reversal of the judgment, appellant first insists that appellee “elected to rely upon the will rather than the written change of beneficiary.” This argument is based on the fact that she and the executors filed a motion in the White 'Chancery Court to dismiss an action brought by appellant as administratrix of her husbánd’s estate to cancel the change of beneficiary in said policy. As to the will, there is nothing in this record to show that appellee had anything to do with its probate, or that she was a party to or even a witness in that proceeding. The record does show that the only parties who appeared in the probate court were the executors and appellant who contested its probate on the same ground as here. As to the proceeding in chancery, after the will was admitted to probate, she agreed that the motion to dismiss was well taken, and, on her own motion, dismissed her suit. Just how these matters can constitute an election by appellee to take under the will is difficult to perceive. In 9 R. C. L., p. 960, § 7, cited with approval in Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, it is said: “An election of a remedy which has the effect of an estoppel in pais or an estoppel by record * * * is generally considered made when an action has been commenced on one of such remedies.” Here this is the only action appellee has ever commenced or been a party to, except to move to dismiss appellant’s action in chancery. By bringing this action, appellee elected to stand on the change of beneficiary, and has taken no action inconsistent therewith.

It is next contended that the court erred in excluding certain testimony offered by appellant: (1) The court refused to permit Dr. Sloan, a-witness for appellant, to testify to certain reports made to him by a physician in St. Vincent’s Infirmary in Little Rock, where Roberson remained for several weeks for treatment from August, 1930. We think no error was committed in this regard for two reasons: First, they were secondary or hearsay evidence, and, second, no showing was made as to the nature of said reports, nor whether they shed any light upon the question at issue, the sanity or insanity of the deceased. (2) Two other offers of evidence were excluded. The judgment of the Independence Circuit Court of October, 1931, in a habeas corpus proceeding, for the custody of Marion F. Roberson, wherein appellant was the petitioner and appellee and others were respondents, was offered and excluded. Also appellant offered the judgment of the White Circuit Court of January, 1933. In both of these judgments it was found that said Marion F. Roberson was of unsound mind, and it is contended that they were competent as evidence to go to the jury to determine his sanity at the time of executing the change in beneficiary. We cannot agree with appellant that this was error. The judgment of the Independence Circuit Court was nothing more than adjudication of his mental condition at that time, which was some thirty days after the change of beneficiary had been made, and was incidental to the main purpose of the controversy, his custody being the real issue. The judgment of the White Circuit Court was some months after his death, and was in an apparently friendly lawsuit, to which appellee was not a party, relating to life insurance in another company. It was agreed in open court that Roberson was adjudged insane by the probate court of White County on May 29, 1932, and confined in the State Hospital for Nervous Diseases. All adjudications of Roberson’s sanity occurred after the act sought to be set aside. One such trial on the question of the validity of his will, which was executed nearly thirty days after the change of beneficiary, found him to be sane at that time. But, even had the adjudications finding him of unsound mind been before the act sought to be avoided, they would have been mere presumptions of continuing insanity, which might be overturned by evidence sufficient to convince the jury to the contrary. Our cases so hold. Eagle v. Peterson, 136 Ark. 72, 206 S. W. 55; Cook v. Jeffett, 169 Ark. 62, 272 S. W. 873. In the latter case we said: “An adjudication (of insanity) for the purpose of issuing letters of guardianship is, in a collateral proceeding, only prima facie evidence of mental incapacity. Eagle v. Peterson, 136 Ark. 72, 206 S. W. 55. But, if the court making- the adjudication is without jurisdiction, the judgment has no probative force at all, and is not admissible in evidence in a collateral proceeding.” It was there also held that the order of the probate court, made after the death of the person, approving the act of the clerk in appointing a guardian prior to the death of such person, was void. We think no error was committed in excluding these judgments. This court, in Shores-Mueller Co. v. Palmer, 141 Ark. 64, 216 S. W. 295, said: “The record does not show that Walter Gr. Ivindel was insane at the time he executed the contract sued on. The fact that he was subsequently adjudicated to be insane does not establish insanity at a prior time. ’ ’ And this is in accord with the general rule as stated in 32 C. J., p. 646, § 224. See also Uecker v. Zuercher, 54 Tex. Civ. App. 289, 118 S. W. 149; Rhoades v. Fuller, 139 Mo. 179, 40 S. W. 760. The adjudication of insanity of the White Probate Court in 1932 was inadmissible under the same rule.

It is finally urged that instructions given at appellee’s request were erroneous and in conflict with those given for appellant. We have carefully considered the instructions, and do not find them open to this criticism. The instructions submitted the theories of both sides fully and fairly to the jury. By its verdict it has found that said Roberson was sane at the time of executing- the change in beneficiary and upon evidence that is in sharp conflict. No error appearing, we must permit it to stand.

Affirmed.


author: Butler, J. Johnson, C. J.,

text:
    Middleton v. Middleton.
    4-3394
    Opinion delivered March 5, 1934.

      F. O. Butt, for appellant.

      S. W. Woods, for appellee.
   Butler, J.

J. H. Middleton died on October 7, 1932, leaving surviving him sons and daughters, all adults, as his sole heirs at law. This action was brought by the appellees to establish a lost holographic will of the said J. H. Middleton, which they alleged was in existence at the time of his death, and had since then been destroyed.

On the issue joined, and the evidence adduced, the court rendered a decree, which, after reciting preliminary matters, found as follows: “After hearing all of the evidence, argument of counsel, and being duly advised in the premises, the court finds that the above-named parties, both plaintiffs axtd defendants, are the children and only heirs at law of J. H. Middleton, deceased; that prior to and at the time of his death and thereafter there was in existence an instrument purporting to be the last will and testament of the said J. H. Middleton, deceased; that it is claimed by the plaintiffs that said instrument was written in the own proper handwriting and signed by the said J. H. Middleton, and it is alleged that after his death the said instrument purporting to be his said will was destroyed by the defendant, Paul Middleton; that said instrument was by the court found to be in words and figures as follows:

“ ‘Omaha, Arkansas, November 23, 1923.
“ ‘I, John Middleton, being of disposing mind and memory, do make this my last will and testament.
“ ‘I will that all my just debts and funeral expenses be paid. I will my daughters, Gertie Middleton and Addie Middleton, my home and all of its contents. All of block thirty and lots three and four in block 5 in the original town of Omaha, also all of the northwest quarter of the northeast quarter of section twenty-seven, township twenty-one north of range twenty-one west, with all improvements attached thereto, except eight acres of the aforesaid forty deeded to L. M. Eea.
“ ‘I will my daughter, Gertie Middleton, two thousand dollars.
“ ‘I will my daughter, Addie Middleton, two thousand dollars.
“ ‘I will to Omaha Missionary Baptist Church the plot of land upon which the church is now located, fronting on the Springfield and Harrison road a distance of 100 feet, as indicated by iron stakes, and extending westward a distance of 150 feet, and lying in the south one-half of the northeast quarter of section twenty-seven, township twenty-one north of range twenty-one west.
“ ‘I will to my sons ancl daughters, Charley Middleton, Paul Middleton, Clyde Middleton, Ada G-uier and Edna Lee, equal shares in all of the remainder of my property, both real and personal.
“ ‘I will that the share of Edna Lee be placed in trust and the interest only to be paid her annually during the lifetime of J. C. Lee. I appoint my son, Paul Middleton, as administrator of this my last will and testament.
“ ‘(Signed) JohnH. Middleton.
“ ‘This will needs no witnesses as everyone knows my signature. Known as J. H. Middleton.’ ”
‘ ‘ The court finds that said instrument as hereinabove set out, purporting to be the last will and testament, should be re-established to the end that the parties plaintiffs may file same for probate in the probate court, and that the probate court may have an opportunity to pass on the question as to whether or not said instrument is the last will and testament of the said J. H. Middleton.
“It is therefore by the court considered, ordered, adjudged and decreed that said instrument purporting to be the last will and testament of J. H. Middleton, deceased, be, and the same is, hereby restored and established as such purported instrument. To which ruling and judgment of the court, the defendant at the time excepted, and caused same to be noted of record, which is done, and prayed for an appeal to the Supreme 'Court of the State of Arkansas, which appeal is granted. Whereupon the plaintiffs ask the court to find as a fact that said instrument and signature was made in the own proper handwriting of J. H. Middleton, deceased, and was entitled to probate as the last will and testament, which finding the court declined to make, and plaintiffs saved their exceptions to such refusal.”

The appellants call attention to § 10,545 of Crawford & Moses’ Digest, which provides as follows: “No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness.” They also call attention to § 10,495, fifth subdivision, relative to holographic will, which provides: “Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator or testatrix, such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each testator or testatrix, notwithstanding there may be no attesting witnesses. But no such will shall be pleaded in bar of a will subscribed in due form as prescribed in this act.”

Appellants make two contentions: first, vthat the will was not established by competent evidence in that the witnesses testifying to the effect that the body of the instrument and the signature thereto were in the proper handwriting of the testator, were not disinterested witnesses, as they were beneficiaries under the will. The answer to this first contention is, that there was no controversy relative to the hand-writing and signature of the testator. Buies of evidence were formulated for the purpose of providing how disputed questions of fact might be determined, and where there is no dispute, there is no occasion for the application of the rules. Our statute recognizes this where it provides that it shall not be necessary to offer proof of the allegations of the complaint which are not denied in the answer. Section 1231, Crawford & Moses’ Digest.

The undisputed testimony is to the effect that, shortly after the death of J. H. Middleton, three of his sons went to his place of business and fróm a safe obtained the will of their father, which apparently was known to be in existence. They repaired with the will to the home which had been occupied by the deceased, where all the sons and daughters were gathered, and Charley Middleton, one of the sons, read the will aloud, and he and two of the other children stated that the entire body of the instrument and the signature thereto were in the proper handwriting of the deceased. This testimony was not disputed.

The first contention may also be answered in this way: The act of the appellants made it impossible to comply strictly with the provisions of the statute relative to the proof of holographic wills. The proof is undisputed that, immediately after the will was produced and read in the presence of the heirs of the testator, it was intrusted to the eldest son of the deceased, and that afterward it was torn to pieces and burned by him, without any one ever having seen it besides the appellants and the appellees. The evidence does not show any active participation by the residuary beneficiaries in the act of Paul Middleton in destroying the will. The inference is plain, however, from their subsequent conduct, and as they were the ones to be benefited by his act, that they acquiesced therein. Now the appellants point to the statute and invoke its provisions to defeat the will, but they are met by the maxim, “No man should be permitted to advantage by his own wrong,” and “Every presumption is made against a wrongdoer. ’ ’ By the destruction of the will it was made impossible for it to be inspected for the purpose of ascertaining in whose handwriting the body of the instrument and signature were. The parties to be benefited by the destruction of the will were the residuary beneficiaries, appellants here, and the act of the spoliator supplies the lost proof.

The general rule deduced from the maxim that all things are presumed against a wrongdoer is so natural and just that it has become a part of the law of every civilized land, and by it the presumption is all against the spoliator. Where some written instrument, which is a part of the material evidence in a case, has been destroyed, the presumption arises that, if it had been produced, it would have been against the interest of the spoliator, and, where the instrument destroyed is of such nature as to destroy all evidence, there follows a conclusive presumption that, if produced, it would have established the claim of the adversary of him who destroyed the instrument where it is shown that the destruction was willful. Where a deed, will or other paper, is proved to be destroyed, a. presumption arises in favor of the party who claims under the paper, even though the contents are not proved. Hay v. Peterson, 6 Wyo. 419, 45 Pac. 1073; Lee v. Lee, 9 Pa. St. 169. “If the will be lost, secondary evidence may be given of its contents. If suppressed or destroyed, the same is true; and, if necessary, the law will prevent the perpetration of fraud by permitting a presumption to supply the suppressed proof.” In re Lambies’ Estates, 97 Mich. 49, 56 N. W. 223.

In Pomeroy v. Benton, 77 Mo. 64, the court said: “We come now to the discussion of evidence by defendant. * * * Nothing remains to us but to apply to the defendant the stern rule recognized alike in equity and at law embodied in the maxim omnia praesumwitur in odium spoliatoris. * * * it would seem too plain for argument that, if secondary evidence were at hand, all need for the application of the rule would cease, .and that, if the rule could not be applied unless upon the production of secondary evidence, then the spoiler could assure his success, by cutting off every source of information and every supply of evidence, could become successful in proportion to the destruction he had wrongfully wrought. * * * The law, in hatred of the spoiler, baffles the destroyer, and thwarts his iniquitous purpose, by indulging a presumption which supplies the lost proof, and thus defeats the wrongdoer by the very means he had so confidently employed to perpetrate the wrong.”

In the case of McClure v. McClintock, 150 Ky. 250, 150 S. W. 322, it was held that willful destruction of evidence by the defendant may raise the presumption of guilt, overthrowing the presumption of innocence. The maxim referred to, supra, is recognized with approval by this court in the cases of Miller v. Jones, 32 Ark. 337; Burke v. Napoleon Hill Cotton Co., 134 Ark. 580, 202 S. W. 827; Gallup v. St. L., I. M. & S. Ry. Co., 140 Ark. 347-54, 215 S. W. 586.

The second contention of appellant is that the will was not proved as a lost will, as provided by § 10,545, supra. This contention falls for the reason that there was no dispute in the testimony regarding the existence of the will at the time of the death of the testator, or of its destruction, and its contents were clearly proved by three witnesses, who, though interested, were competent to testify, there being no provision in the statute, supra, which would disqualify them on account of their interest.

There was some testimony regarding a purported family settlement by which it was agreed that the will should be denounced and withheld from publication, but as to this the evidence is in conflict, and it is clear whatever settlement was discussed, it was never in fact consummated.

The evidence is in conflict with respect to the contents of the will. We think that it preponderates in favor of the finding of the chancellor, and it would serve no useful purpose to set it out in detail. We conclude, under the peculiar facts of this case, that J. H. Middleton executed a will in his lifetime, the body of which, with the signature thereto, was in his own proper handwriting; that this will was in existence at his death and subsequently destroyed; that the proof is sufficient to warrant the court in establishing it as a lost will, and that its contents were as found by the chancellor.

We agree with appellees that the court below erred in not establishing the will as a valid holographic will. Its decree will accordingly be reversed, and the cause remanded with directions to establish the will and to order its decree certified to the clerk of the probate court for record, under the provisions of § 10,543 of Crawford & Moses’ Digest.

Johnson, C. J.,

(dissenting). The exegeses of the majority opinion are not warranted or justified under the facts and circumstances here presented. The facts are, no set of circumstances warrant or justify a court in nullifying a plain and-simple statutory provision. It is not a matter of construing a statute, but one which ruthlessly destroys it. Subdivision 5, § 10,494 of Crawford & Moses’ Digest has been the established law in this State since the Constitution of 1836. Until now it has been respected by all the courts. Probably minor individual hardships have resulted from its application, but the many wholesome benefits which are safeguarded by its terms have fully compensated therefor.

I agree with the majority that it was necessary for the chancellor to determine that a valid will was executed by the deceased before an order could be effected restoring it. The chancellor refused however, on the testimony presented, to restore this instrument as a will, and he was eminently correct in so doing.

The only testimony offered by the. proponents of the will were beneficiaries thereunder. The majority opinion concedes that these beneficiaries were interested parties. Subdivision 5 of § 10,494 in no unmistakable terms provides that a holographic will must be established “by the unimpeachable evidence of at least three disinterested witnesses.” The majority opinion says: “The first answer to this -contention is, that there was no controversy relative to the handwriting and signature of the. testator.” Certainly there was no controversy, because the man who executed the purported will was dead. The beneficiaries have no right to make a will for the testator, but this is exactly what is permitted by the majority opinion. If the plain provisions of the statuate are to be ignored in the future, testators had much better die intestate than to risk the probation of their holographic wills. In the future it will only be necessary for the beneficiaries to get their wits together and determine for themselves the distribution of property and thereby nullify and destroy the effectiveness of the will. The statute itself brings into question whether or not there is a valid will, and this wholesome statutory provision stands out as a safeguard in behalf of the deceased until it is overcome by unimpeachable testimony from at least three disinterested witnesses. Any other construction of the statute nullifies and destroys it. Section 1231 of Crawford & Moses’ Digest, cited by the majority, has no application where the validity or invalidity of a will is involved.

It is next said by the majority that “the act of the appellants made, it impossible to comply strictly with the provisions of the statute relative to the proof of holographic wills.” No act of a beneficiary should be permitted to nullify and destroy a plain statutory provision. No question of estoppel should be invoked as against the deceased. Deceased knew, when he executed this purported will, that subdivision 5 was in existence. He had a right to expect that its provisions would be complied with before his will became effective. Until this was done, there was no valid will.

The majority opinion next says: “No man should be permitted to have an advantage by his own wrong.” This is beside the question. There is no testimony that appellants or either of them would obtain an advantage by reason of the alleged destruction of the will. The kind and character of property owned by deceased, at the time of his death, is not disclosed by this record. A number of cases are cited in the majority opinion supporting the theory of presumption, but no case cited touches the question here presented. I assert, without fear of contradiction, that no case can be found which nullifies and destroys a plain statutory provision just to accomplish the purpose of some beneficiary. The facts are, all the authorities agree that a holographic will must be executed in accordance with statutory formalities. Section 366, Page on Wills, second edition. Not only this, but the authorities all agree that statutes providing for the execution of holographic wills are mandatory and not directory. In re Thor’s Estate, 183 Cal. 512; In re Jenkins’ Will, 157 N. C. 429. This court is now permitting a holographic will to be probated and established by beneficiaries in the will. These beneficiaries are directly and pecuniarily interested therein. I can not refrain from sounding this warning! Courts are established to construe statutes and not to legislate.

I am authorized to say that Justices Smith and Humphreys concur in the views herein expressed.


author: Butler, J.

text:
    Sims v. Roberts.
    4-3393
    Opinion delivered March 5, 1934.

      V. D. Willis and Shinn & Henley, for appellant.

      J. Loyd Shouse and Cotton & Murray, for appellee.
   Butler, J.

At an undisclosed date J. L. Sims and the appellant, Ora Sims, became husband and wife, and thereafter, on the 20th day of October, 1930, they entered into a written contract, the material- parts of which may be summarized as follows: an indebtedness was acknowledged by J. L. Sims due Ora Sims in the sum of $5,000, without interest, to be due and payable upon the condition that J. L. Sims died before Ora Sims, otherwise the “debt fund” should revert to the estate of J. L. Sims, and the agreement would be null and void. For security of the payment of the aforesaid sum, certain bank stock of the par value of $5,000 was pledged, assigned and transferred, and attached to the original contract to be held by the First National Bank, which bank was authorized upon the death of Sims to deliver to Ora Sims, in the event the estate did not pay the $5,000, the stock certificates to be sold and their proceeds in excess of the amount of $5,000 to be paid to the estate. It was recited that the amount mentioned above was the balance of the sum of $17,528, of which sum Ora Sims acknowledged receipt of $12,528 in cash, which, together with -the $5,000 mentioned in the contract, constituted the $17,528 paid and to be paid to Ora Sims in consideration of her releasing all claim in and to the estate of J. L. Sims, both real and personal, including dower and homestead rights in and to all real property. In the event Ora Sims survived her husband, she was obligated to execute to his legal representatives all necessary documents to effectuate the agreement on her part. As a condition to the payment to Ora Sims of the balance named, it was provided “that she perform the agreements and covenants set out, including her executing a full release to the estate as mentioned, it being understood and agreed by and between the parties hereto that the said sum of $17,528, of which the said sum of $5,000 is the balance to be paid, is in full settlement of all property rights, including dower and homestead, as between the said J. L. Sims and Ora Sims, husband and wife, and the same is made in consideration of the agreement entered into before their marriage, and in consideration of marriage, the same not having been reduced to writing until this date.”

A further and final provision was to the effect that Ora Sims should care for J. L. Sims during any sickness or infirmity, and that, should she desert him, the contract would be void.

J. L. Sims died, and John Roberts was appointed administrator of his estate. Ora Sims presented to him, with the contract attached, her claim for $5,000, duly sworn to as prescribed by statute. This claim was disallowed by the administrator and also- by the probate court. When the case reached the circuit court on appeal, the administrator interposed a demurrer on the ground that the claim “does not state facts sufficient to constitute a cause of action in that the contract upon which said claim is/based is not a valid and binding contract against the estate of Dr. J. L. Sims, deceased.” The court sustained the demurrer and dismissed the claim, from which judgment is this appeal.

To sustain the action of the trial court, the appellee relies on the statute of frauds, § 4862, Crawford & Moses’ Digest, as follows: “No action shall be brought: * * * Sixth. To charge any person upon any contract, promise or agreement that is not to be performed within one year from the making thereof, unless the agreement, promise or contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized. ’ ’ Appellee also relies on § 7028 of the Digest under the head of “Marriage Contracts,” as follows: “All marriage contracts whereby any estate, real or personal, is intended to be secured or conveyed to any person, or whereby such estate may be affected in law or equity, shall be in writing and acknowledged by each of the contracting parties, or proved by one or more subscribing witnesses.” He cites the case of Galbraith v. Cook, 30 Ark. 417, the second syllabus of which is as follows: “A marriage contract must be reduced to writing and acknowledged under our statutes.”

The learned trial judge did not indicate on what theory he held the contract invalid. It might have been his opinion that an oral antenuptial contract, being within the statute of frauds, could not subsequently be validated by reduction to writing after the marriage. There is respectable authority to support this view. Smith v. Greer, 3 Humph. (Tenn.) 118; Read v. Livingston, 3 John. Ch. Rep. 481; Wood v. Savage, 2 Doug. (Mich.) 316. There are equally respectable authorities holding that a parol antenuptial agreement, where the marriage has been consummated on the faith of the same, reduced to writing after the marriage, is sufficient compliance with the statute. .We find it unnecessary to pass upon this question because, in our opinion, the contract having been reduced to writing and signed by the parties, it is sufficient to make it valid between them and their privies whether it be treated as an antenuptial agreement reduced to writing'or a post-nuptial settlement. There can be no doubt but that a husband may dispose of his property or provide for its disposal by any method he may deem proper which will be binding against all except creditors. If the contract be treated as having been made in consideration of a parol antenuptial agreement, it will appear by its recitals that there has been a substantial part performance. Ora Sims, having been paid in cash the sum of $12,528, and the marriage consummated, the presumption is that she and J. L. Sims lived together as husband and wife until the death of the former. As pointed out by Bishop in the first volume of his treatise on Law of Married Women, parol antenuptial agreements were valid at common law, and are not made void by statute. Our statute is a re-enactment of the English Statute of Frauds (29 Car. 2), and, in commenting upon its language, Mr. Bishop, at § 807, vol. 1, p. 605, supra, has this to say: “Incautious persons have sometimes, not looking at the exact words of the statute, supposed that, if an agreement is founded on the consideration of marriage, and is not in writing, it is therefore void. But that is not what the statute says. It simply says that ‘no action shall be brought whereby to charge any person upon’ this parol agreement. For example, if the parol agreement has been executed, the rights of property acquired under it are as secure as if the contract had been written and duly signed. Therefore, although marriage, following a parol antenuptial agreement, is not even a part performance of it, to take the case out of the statute of frauds, yet, if there is such an antenuptial agreement founded on this consideration of marriage, and it is voluntarily carried out while the coverture lasts, it is, on the death of one of the parties, binding as between his representatives and the party living. ’ ’

This court, in the case of Storthz v. Watts, 125 Ark. 393, 188 S. W. 1166, cited with approval in Newton v. Mathis, 140 Ark. 252, 215 S. W. 615, lays down the rule that a substantial part performance of a contract is sufficient to take a verbal contract from within the statute.

The test of the validity of the marriage contract is whether or not it would bar the widow of her right of dower in the estate of her deceased husband. In the instant case, Mrs. Sims, having acknowledged the existence of the antenuptial agreement and the receipt of a substantial part of the sum stipulated to be paid, could not be permitted to renounce the contract simply because it had not been reduced to writing before the marriage. This is true because the parol antenuptial agreement, not being void but merely unenforceable, the part performance subsequently acknowledged in writing rendered it enforceable against the wife and consequently against the representatives of the deceased husband.

The headnote in the case of Galbraith v. Cook, supra, failed to notice that the written contract might be proved by subscribing witnesses without the necessity of a formal written acknowledgment. That case is therefore no authority for holding that the contract in the case at bar is void. It is true that it has. not been proved and recorded as provided by §§ 7029-30 of Crawford & Moses’ Digest, but by § 7032 it will be noticed that these sections do not apply as between the parties to a contract and such as have actual notice thereof. In this case the administrator occupies the same relationship to the appellant with respect to the contract as did her husband, and therefore the failure to prove and record the contract does not render it invalid as to him.

There is no contention before us that there was any fraud practiced in the procurement of the contract, that any of its material recitals are false, or that the rights of creditors are involved. We therefore cannot consider any of these questions, and, if any such exist, they may be raised on a remand of the cause.

Prom what we have said, it follows that the trial court erred in sustaining the demurrer. The judgment is therefore reversed, and the cause remanded, with instructions to overrule the demurrer, and for further proceedings in accordance with law and not in conflict with this opinion.


author: Johnson, C. J.

text:
    Dicken v. Missouri Pacific Railroad Company.
    4-3378
    Opinion delivered March 12, 1934.

      Haynie, Parks & Westfall, for appellant.

      Henry Donham and Mahony & Yocum, for appellees.
   Johnson, C. J.

To compensate an injury, which resulted in death to Chester Dicken, this suit was instituted by appellant, Mattie Dicken, widow of deceased, against appellees, Missouri Pacific Railroad Company and the Standard Gravel Company, in the Nevada Circuit Court.

In effect, the complaint alleged that the Standard Gravel Company is a domestic corporation, and the Missouri Pacific Railroad Company is a foreign railway corporation, authorized to do business in this State. That on and prior to said second day of September, 1933, plaintiff’s husband, Chester Dicken, was in the employ of defendant, Standard Gravel Company, engaged in helping to load on the cars of defendant, Missouri Pacific Railroad Company sand and gravel to be transported over the lines of railroad owned and operated by both of said defendants, as heretofore alleged. That, after two of said cars were loaded with sand and gravel, the engineers in charge of said locomotive of defendants was ordered by defendant to move said loaded cars from said gravel plant over said short line of railroad, to a point near the track of the defendant, Missouri Pacific Railroad Company, where same was to be unloaded, to be used for repairing the track or roadbed of said short line of railroad. That it was the duty of all of the employees of defendant, Standard Gravel Company, including Chester Dicken, to go upon said gravel cars and ride same to the point where the sand and gravel was to be unloaded for the purpose aforesaid.

That one of said cars owned by defendant, Missouri Pacific Railroad Company, then and there being transported over said short line of railroad, and which was loaded with sand and gravel, was equipped with a trap door or flooring controlled by certain cogs, chains and gearing which held the bed of the car intact, until ready to be dumped by releasing the dog or a trigger which would release the bed of the car and permit the sand and gravel to be discharged upon the track or roadbed beneath.

That, shortly after said locomotives and cars were placed in motion, and while same were being transported to the point on said short line of railroad where same were to be unloaded as aforesaid, the trap door or bed of said car loaded with sand and gravel suddenly collapsed and fell from its position, permitting the load of sand and gravel, upon which said 'Chester Dicken was riding, to fall through upon the track, carrying with it the said Chester Dicken, and causing him to be run over by said gravel car and killed.

The prayer was for compensation in the sum of $3,000.

Appellees answered the complaint and affirmatively alleged a defect of parties plaintiff in that appellant was without authority under the law to prosecute or maintain the suit. After the filing of appellees’ answers, appellant amended her complaint by alleging that no letters of administration had been issued upon the estate of her deceased husband, and that the deceased left no children or father or mother surviving; that deceased left no collateral heirs surviving him, except one half-brother, Isaiah Dicken, and one half-sister, Arminta Dicken Houston. Thereupon the half-brother and sister of deceased intervened in said cause and were made parties plaintiff.

At the conclusion of appellants’ evidence, a verdict was directed by the trial court in favor of appellees, and against appellants, and a judgmént was accordingly entered, from which this appeal is prosecuted.

Because of the views hereinafter expressed, we deem it unnecessary to detail the testimony introduced upon the trial.

The decisive issue is: Can appellants, the widow and heirs at law of Chester Dicken, maintain this suit? Or does the alleged cause of action rest exclusively in the personal representative of the deceased? . In determining this question, it must be remembered that at common law this cause of action, as alleged by appellants, did not survive the deceased, therefore the survival of said cause of action rests solely upon statutory law.

The first statutory law in this State on the subject here under consideration was enacted by the Legislature of 1883 and now appears as §§ 1074 and 1075, Crawford & Moses’ Digest.

Section 1075 provides: “Every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and, if there be no personal representative, then the same may be brought by the heirs at law of such deceased person, etc.”

Under this provision of the statute, a suit arising under § 1074, Crawford & Moses’ Digest, must be prosecuted and maintained by the personal representative of the deceased, if one there be, and, if none, the suit may be maintained by the widow and heirs at law. St. L., I. M. & S. Ry. Co. v. Corman, 92 Ark. 102, 122 S. W. 116, and Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S. W. (2d) 894.

The above sections of the statute remained unimpaired and not amended up to and until 1911, at which time § 7138, Crawford & Moses’ Digest, was enacted. This section of the statute was construed in Murphy v. Province, 153 Ark. 240, 240 S. W. 421, and we there held, quoting from the fourth headnote:

“Crawford & Moses’ Digest, § 7138 et seq., known as the Railroad Hazards Act, repealed the Lord Campbell’s Act, so far as the two acts were necessarily inconsistent, though the former act provides that it shall not be held to limit the duty of common carriers by railroads or impair the rights of their employees in the existing laws of the State.”

In the more recent case of Faulkner v. Faulkner, 186 Ark. 1082, 57 S. W. (2d) 818, quoting from the third headnote, we held: “The railroad hazards act (Crawford & Moses’ Digest, § 7138 et seq.) repealed the general death statute in actions arising under the former act.”

Thus it appears that, in all cases which arise or are prosecuted under the Railroad Hazards Act of 1911, an exclusive remedy .is afforded, and §§ 1074 and 1075 of Crawford & Moses’ Digest are impliedly repealed to the extent of the later act.

Thus the law stood until 1913, when the Legislature enacted act 175 of 1913, a. part of which now appears as § 7144, Crawford & Moses’ Digest, which provides:

“Every corporation, except while engaged in interstate commerce, shall be liable in damages to any person suffering injury while he is employed by such corporation, or, in case of death of such employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee, etc.”

It definitely appears that the section of the statute just quoted was patterned after the Federal Employers’ Liability Act. USCA, title 45, § 51, therefore the rules of construction promulgated by the Federal courts should be given great -weight in construing the provisions thereof.

The Supreme Court of the United States has construed the Federal Employers ’ Liability Act to mean that all actions arising thereunder must be brought, prosecuted and maintained by the personal representative of the deceased. M., K. & T. Ry. Co. v. Wulf, 226 U. S. 570, 33 S. Ct. 135; St. Loms-San Francisco Ry. Co. v. Maude Seale, 229 U. S. 156, 33 S. Ct. 651.

Since § 7144, Craivford & Moses’ Digest, is not dissimilar to § 51, title 45, USCA, we feel constrained and impelled to follow the decisions of the Supreme Court of the United States, and hold that all actions which arise or are prosecuted under act 175 of 1913 by an employee or his widow and heirs at law and against a corporation, which is not engaged in interstate commerce, must be instituted, prosecuted and maintained by the personal representative of the deceased.

We are not unmindful of the long-established doctrine of this court that repeals by implication are not favored. The converse of this rule is quite as well established, to the effect that, where two legislative acts relating to the same subject are necessarily repugnant to, and in conflict with, each other, the later controls, and, to the extent of such repugnancy or conflict, repeals the earlier act, whether expressly so declared or not. Hickey v. State, 114 Ark. 526, 170 S. W. 562; Coats v. Hill, 41 Ark. 149; Chicago, R. I. & P. Rd. Co. v. McElroy, 92 Ark. 600, 123 S. W. 771; City of DeQueen v. Fenton, 100 Ark. 504, 140 S. W. 716.

Our conclusion is therefore that all tort actions arising under the laws of this 'State, for the benefit of deceased employee’s widows and heirs at law and against corporations, other than corporations engaged in interstate commerce, must be instituted, prosecuted and maintained by the personal representative of such deceased employee, and to this extent § 1075, Crawford & Moses’ Digest, is impliedly repealed by § 7144 of Crawford & Moses’ Digest.

Appellant insists that we decided this contention otherwise in the Godfrey case, supra. Not so. The effect of the decision in the Godfrey case is that it is not prejudicial error to join the heirs at law with the personal representative in the prosecution of such suits.

Appellant also contends that we decided this question adversely in the case of Thompson v. Southern Lumber Co., 113 Ark. 380, 168 S. W. 1068. This ease was decided on June 15, 1914, and the statement of facts therein indícales that a prior suit had been litigated between the parties over the same subject-matter. The subject-matter over which the litigation arose was an injury inflicted in 1910. Just when the first suit was instituted, whether prior to or after the passage and approval of act 175 of 1913, does not appear. However, since the act of 1913 is not referred to or discussed in the opinion, we conclude that the Thompson suits were instituted prior to the passage and approval of said act. At any rate, the question here under consideration was not presented, discussed or decided by this court in the case referred to.

It follows from what we have said that appellants have not the legal capacity to institute, prosecute or maintain this suit against appellee, Standard Gravel Company, and the trial court committed no error in directing a verdict in its behalf.

It is not seriously contended that any liability is shown against appellee, Missouri Pacific Railroad Company. The uncontradicted testimony shows that the deceased, Chester Dicten, was in the employ of the Standard Gravel Company, which company had no connection, directly or indirectly, with the railroad company. The only circumstances in evidence tending to connect the Missouri Pacific Railroad Company with the alleged injury to the deceased was that the gravel car, which ran over and upon the deceased, was borrowed from the railroad company by the gravel company. This circumstance is entirely insufficient to establish liability against the railroad company, and the trial court was correct in directing the jury to return a verdict in its favor.

No error appearing, the judgment is affirmed.


author: Smith, J.

text:
    National Equity Life Insurance Company v. Parker.
    4-3400
    Opinion delivered March 12, 1934.

      S. F. Morton and M. J. Harrison, for appellant.

      Huie & Huie and T. D. Wynne, for appellee.
   Smith, J.

Appellant issued a policy of insurance upon the life of Joseph W. Parker, payable upon his death to his wife, which contained this recital: “This policy is issued in consideration of the application here-for, a copy of which is attached hereto and made a part hereof, and of the payment in advance of seventy-sis and 08/100 dollars, being the premium for one year’s term insurance from the date hereof and the advance reserve required by law, and the further payment of a like amount on or before the 1st day of July in every 3^ear thereafter during the continuance of this policy.” The policy was dated July 1, 1931.

The insured died March 15, 1932, and this suit was brought to enforce payment of the policy, and from a judgment awarding that relief is this appeal.

The insurance company defended upon the ground that, upon the written application of the insured, the terms of payment of the premium had been changed from an annual payment to monthly payments, and that only one monthly payment had been made. There was indorsed upon the back of the policy the amount of premium to be paid if the ¡payments were made annually, semi-annually, quarterly, or monthly, the amount of the premium if paid monthly being $8.70 per month.

A writing, which purported to be an application to change the plan of premium payments, to which the name, “Joseph W. Parker,” was signed, was offered in evidence, but his wife and brother-in-law testified the writing was not the signature of the insured.

The agent who wrote the application and delivered the policy testified that the insured signed the application in his presence, and that the change of plan of payment was made as requested, and the insured made an initial monthly payment of $8.70 upon the delivery of the policy. Testimony on the part of the insurance company was to the effect also that no other payment was ever made, although monthly notices were sent to the insured of the amount and date of his payment, as well as a notice to the effect that the insurance would be suspended unless payments were made, and another notice to the effect that the insurance had been canceled upon the books of the company because the payments had not been made.

The court charged the jury that the possession of the policy by the insured at the time of his death raised the presumption that the policy had been properly delivered to him after the performance of all conditions precedent necessary to put it in force, and that the burden was upon the defendant insurance company to show that the annual premium had not been paid, and that a verdict should be returned for the plaintiff unless this burden was met by the defendant.

The defendant requested — but the court refused to give — an instruction numbered 4 reading as follows: “You are instructed that if you believe from the evidence in this case that the only premium paid by Joseph W. Parker was the monthly premium of $8.70 paid at or before the time of the delivery of the policy, then said policy lapsed at the end of 31 days grace period on September 1,1931, and you should find for the defendant. ’ ’

This instruction so clearly and so correctly presents the controlling issue of fact that we think it was error to refuse to give it. It is not contended that the instruction is incorrect, but it is asserted that the refusal to give it was not prejudicial error, for the reason that the court had given, at plaintiff’s request, an instruction numbered 3 which covers it. This instruction numbered 3 reads as follows: “The court instructs the jury that the policy in suit was issued on an annual premium payment basis, and the burden of proof is upon the defendant company to show by the greater weight of the evidence introduced in this case, that subsequent to the issual of the policy the premium payment basis was changed by mutual agreement to a monthly payment basis.”

We think, however, the court should have given appellant’s instruction numbered 4, although appellee’s instruction numbered 3 had been given. Instruction numbered 3 declared the law to be that the policy had been issued upon an annual premium payment basis, and not upon a monthly premium payment basis, and that the burden was upon the defendant to show that the premium payment basis had been changed by mutual agreement to a monthly payment basis. But there it stopped, and there appellant’s instruction numbered 4 began, and the jury should have been told, as appellant’s instruction numbered 4 declared the law to be, that a single monthly premium of only $8.70 would not suffice to keep the insurance in effect beyond September 1, 1931, which date was some months prior to the date of the death of the insured. Washington Fidelity National Insurance Co. v. Anderson, 187 Ark. 974, 63 S. W. (2d) 535.

Appellant’s instruction numbered 4 should have been given, and for this error the judgment will be reversed, and the cause will be remanded for a new trial. It is so ordered.


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    New York Life Insurance Company v. Shivley.
    4-3397
    Opinion delivered March 12, 1934.

      Louise H. Cooke, W. J. Schoonover and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      W. A. Jackson and George M. Booth, for appellee.
   Mehaffy, J.

This action was begun by appellee in the Randolph Circuit Court, against the appellant, to recover on an insurance policy issued April 20, 1909, for $2,000. The annual premium was $64.74, running for twenty years. The policy was issued by appellant to Nieie J. Shivley, wife of the appellee, and the appellee was the beneficiary. The premiums had all been paid, and it was a paid-up policy. The last premium, was April 20, 1929. The insured died on December 26, 1932.

Appellant, in its answer, admits that the policy became paid up in April, 1929, but that it was charged with a loan," and the appellant alleges that on September” 24, 1932, the total debt, including interest, equaled the cash surrender value of the policy, and that on that date appellant notified the insured that the policy would become void without further notice if no payment on account of the indebtedness was made before the expiration of one month after the mailing of the notice. No further payment was made on account of the indebtedness, and appellant alleged that, according to the terms of the loan agreement, the policy had lapsed, and become void on October 23, 1932, and that at the time of insured’s death the policy was not in force.

There were several loans made on the policy, the first one being for $120, and the loan agreement provided that interest on this loan at the rate of 5 per cent, per annum from date to the anniversary of the policy should be paid, and should#be paid annually thereafter on each anniversary of the policy. The agreement further provided that, if interest was not paid on the date when due, it should be added to the principal and bear interest at the same rate. It was further provided in the loan agreement that the sum so advanced shall become due and payable either, (a) if there is default in the payment of any premium on said policy, in which event the sum so due and payable with interest should be deducted in the manner provided in said policy, and said indebtedness thereupon be deemed fully paid. The agreement further provided that, whenever the total indebtedness to the company on said policy, however evidenced, shall equal its cash surrender value, then, in the event of failure to pay interest thereon, said company shall mail to the last known address of the insured, and of the assignee of record at the home office of the company, if any, a notice that the total indebtedness to the company on said policy equals its cash surrender value, and thereupon said policy shall, one month after the mailing of said notice by the company, and without any other or further notice or action of any kind,’be-void and of no effect, unless said defaulted interest shall be paid within said one month after the mailing of' said notice, and whenever said policy so becomes void and of no effect, all of said indebtedness to the company shall be fully paid and satisfied.

The policy provided that, when the total indebtedness to the company on said policy should equal its cash surrender value, then, in the event of failure to pay interest thereon, said company shall mail to the last known address of the insured a notice that the total indebtedness to the company equals its cash surrender value, and thereupon said policy shall, one month after mailing said notice, be void. The policy does not require that the insured shall receive the notice, but it does require that the notice be mailed to the last known address of the insured.

We think, however, that it was unimportant whether notice was given or not, because, unless the indebtedness equaled the cash surrender value of the policy, there was no forfeiture. The company made several loans on this policy, and, when it would make a*new loan, it would always deduct the amount of the former loan and interest from the amount advanced as a loan on the policy. In all instances, also, where a loan was made, there was a policy loan agreement. The last loan was made on May 21, 1931, and was not due until May 21, 1932, and in April, 1932, the interest of $46.44 was added to the principal, making the total indebtedness $1,086.44.

The appellant’s witnesses testify, and the record shows, that the interest for 1932 was added to the loan thereby extended until 1933. There was no promise to pay, and no obligation to pay either principal or interest until May, 1933; but, in order to show that the indebtedness equals the cash surrender value of the policy, appellant calculates the interest accrued, although not due until May, 1933. The only question in this case therefore is whether, in order to declare a forfeiture of the policy, the appellant will be permitted to calculate the interest that is not due, and will not be due for several months, and add this to the principal, so as to make the indebtedness equal to the cash surrender value. We do not think this should be permitted, nor do we think it was the intention of the parties. The interest not yet due should not be available to increase the amount of the indebtedness so as to forfeit the policy. The policy itself increased in value annually, although such increase was not available to the insured until the beginning of the next policy year, and the interest accrued, but not due, should not be available to the insurance company to increase the indebtedness so as to declare a forfeiture.

There is some argument made about failure to pay defaulted interest. There was no defaulted interest, and there was no interest due until the following May.

“It is a general principle that forfeitures are not favored in law, and nowhere is this more applicable than in the construction of insurance contracts (Palatine Ins. Co. v. Ewing, 92 Fed. 111, 34 C. C. A. 236). A construction of a policy resulting in a forfeiture will not be adopted except to give effect to the obvious intention of the parties. * * * Nor will provisions for the forfeiture in policies of insurance be extended beyond the mischief intended to be met thereby. Contracts of insurance, whether of life or fire insurance, will therefore be construed so as to avoid a forfeiture if possible.” 2 Cooley’s Briefs, on Insurance, 991; Maloney v. Maryland Cas. Co., 113 Ark. 174, 167 S. W. 845; Pfeiffer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847.

The policy in this case provides that it shall be incontestable after one year from its date, except for the nonpayment of premiums. There were, of course, no premiums due, because this policy was paid up. Of course, if interest is calculated up to the time the company gave the notice, the indebtedxxess would equal the cash surrender value of the policy; but, in order to arrive at this result, interest that is not due must be added to the indebtedness, and we do not think there was any more intention of adding interest due in the future than there was in calculating the increased value of the policy, which would not be available until the beginning of the next policy year.

Uxxder the terms of the policy, of course, there was no increase until the beginning of the next year. But there was no interest due on indebtedness until the next policy year.

In vol. 2 of Cooley’s Briefs on Insurance, 994 and 995, the rule is stated as follows: “In accord with these principles, it is recognized as the settled doctrine that a policy of insurance must be liberally construed in favor of the insured, so as not to defeat, without necessity, his claim to the indemnity, which, in making the insurance, it was his object to secure; and, when the words are without evidence susceptible of two interpretations, that which will sustain his claim and cover the loss must in preference be adopted.”

In construing the contract most strongly against the insurance company, as we must do, we think it clear that the company did not have the right to declare a forfeiture at the time it did.

This view is strengthened by the statements in the policy and in the policy loan agreement; in both it is stated that the interest is payable annually, and it is also stated in the policy loan agreement that the policy becomes void unless the defaulted interest shall be paid, etc.

We think that defaulted interest means interest that is not paid at the time it is due according to the contract, and, according to the contract, this interest was not due until the end of the policy year.

The judgment of the circuit court is affirmed.


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    Hood v. Sovereign Camp Woodmen of the World.
    4-3398
    Opinion delivered March 12, 1934.

      Robert Bailey, for appellant.

      Rainey T. Wells and Lee Miles, for appellee.
   Mehaffy, J.

This suit was brought by appellant against the appellee in the Pope Circuit Court to recover on an insurance policy issued to appellant’s husband, Robert L. Hood, who died October 16, 1932.

In 1898 the appellee issued to Robert L. Hood, husband of appellant, an insurance policy in the sum of $2,000, payable to his wife, the appellant. All of the premiums and dues were paid by Hood up to August 9,1910, when he canceled and surrendered the certificate originally issued to him, and directed the issuance of a new certificate, making his wife and children beneficiaries. This second certificate was issued August 16, 1910. On April 18,1929, this second certificate was surrendered and canceled, and application made for a new form of ordinary life certificate in the amount of $2,000 at an increased rate of assessments. The beneficiary in this last certificate, the one involved in this suit, is appellant.

Robert L. Hood was in the drug business at Russell-ville, and paid his dues to appellant’s agents for about 30 years. During all that time, up to July, 1932, the dues were paid at Hood’s place of business, at his drug store. About this there is no dispute. The agents of the appellee and others testified that the agents of the appellee would go to Hood’s place of business and collect premiums, and Mrs. Hood, the appellant, testified that all the dues were paid up to the time of his death. She did not, however, have receipts for all of them. She did have receipts or checks, showing that she paid all of the premiums and dues up to' and including the payment for June, 1932. In April, 1932, Hood borrowed $203.06 from the company.

The testimony of the appellant shows that no notice that the dues had not been paid was ever received. She also testified that, after the change in the policy was made, they paid $7.84 dues, and 25 cents camp dues, a total of $8.09. She testified that they always collected dues at the store; that this was the custom from the very beginning, more than 30 years, down to the death of Mr. Hood; that they were paid up at the time of his death; and that no one ever notified them that they were not paid. She opened all the mail, looked after the books, and no information ever came that they were not paid. After Hood’s death, she wrote appellee that she had money to pay the loan, but she never received any answer to her letter.

On cross-examination she testified that sometimes she paid the dues, and sometimes her son paid them, but they were always paid at the store; paid to the local secretary; paid them down to the time of Hood’s death. She did not know there was any contention that they had not been paid until after his death. She had receipts for January, February, March and April that she found, and she testified that one box of receipts, she could not find. Her testimony was corroborated by her son, Louis Hood.

Robert Bailey, attorney, introduced a letter which had been written to the appellee, notifying the company of the death of Mr. Hood, and also a letter in reply, saying that Shepherd notified them of Hood’s death, and they also stated that Hood had been suspended for the nonpayment of June dues.

Joe D. Shepherd, financial secretary of appellee, testified that he worked for the local camp during 1932 as financial secretary; that his records show that Hood was suspended for the nonpayment of the June installment. This witness does not remember whether he ever collected any dues at any place other than Hood’s place of business. He does not remember whether Hood ever paid him at his office. The local camp had no meetings for years, and the financial secretary had no place of business for appellee in Russellville. Shepherd testified that the office of financial secretary was given to him by the State manager of appellee. Witness did not remember whether he collected once or twice from Hood money that witness had advanced. This witness admitted that Hood gave him a check in June, and also that the receipt introduced, dated June 13, was signed by him, and he also testified that he could not say whether he received cash and the check, too, or not. He testified that on the book, after Hood’s name, was the word “see”; that this was a notation made by Mr. Young, who preceded witness as financial secretary, and he took that to mean that he was to go to Mr. Hood’s place of business to collect dues.

Boy Young, Mr. Shepherd’s predecessor, testified that he was financial secretary for eight years, perhaps ten; that Hood was a member of the camp, and that he collected dues regularly; that he collected the dues at Hood’s store; always collected them there the first of the month; that he turned the office over to Shepherd in April or May; that Hood paid every time he went there to collect. He also said that he made the notation on the book, and told Shepherd to go to Hood’s place of business to collect; that the last dues witness collected were in April or May, he did not know which.

There was other evidence introduced with reference to the loan, and the available values, and, at the close of the evidence, the court directed a verdict in favor of the appellee. There was sufficient evidence to submit the question as to whether dues had or had not been paid to the jury. It was a question of fact for the jury, and not for the court. If the dues had been paid, then the other question discussed became immaterial.

Whenever an insurance company seeks to avoid payment, claiming that the policy .is forfeited for nonpayment of dues, the burden is on it to establish this fact by a preponderance of the evidence.

“While the burden is on the plaintiff in an action on a benefit certificate to show insured’s good standing at the time of his death, still, as the certificate is proof of good standing at the time of its issuance, and raises a presumption that such good standing continued, it follows that, when the certificate is introduced, the burden is on the association to prove loss of good standing. * * * And, generally, in an action on a policy or mutual benefit certificate, the issue of the policy or certificate of insurance, and the insured’s death being shown by plaintiff, the burden is on the company to show nonpayment of premiums or dues or other matters going to avoid the policy.” Cooley’s Briefs on Insurance, vol. 4, 3863-3864; United Order of Good Samaritans v. Reavis, 186 Ark. 1143, 57 S. W. (2d) 1052; Supreme Council American Legion of Honor v. Haas, 116 Ill. App. 587; Ry. Passenger & Freight Conductor’s Mut. Aid & Benefit Ass’n v. Thompson, 91 Ill. App. 580; United Brotherhood of Carpenters & Joiners of America v. Fortin, 107 Ill. App. 306; Sleight v. Sup. Council of Mystic Toilers, 107 N. W. 183; Kidder v. Sup. Commandery, United Order of Golden Cross, 78 N. E. 469.

Counsel for appellee correctly states that the Supreme Court will not disturb the verdict of a trial court where there is substantial evidence to support it, although the evidence introduced is conflicting, but that has no application where the verdict was directed by the trial court. If the case had been submitted to the jury on questions of fact, this court would not disturb the verdict if there was any substantial evidence to support it, but questions of fact are to be tried by the jury, and not by the court, if there is any substantial evidence to submit to the jury.

'Counsel for appellee says that some of the evidence introduced was not abstracted. That evidence, however, is with reference to the funds in the hands of the insurance company belonging to the insured, and it is abstracted by the appellee, but, if it had not been, the view that we take of the case makes it wholly unnecessary, because, if Hood’s premiums had been paid, it would then, of course, be immaterial, because, if the premiums whether there was any accumulation of funds or not. As to whether there was an accumulation of funds, is a question of fact which, if there is conflicting evidence, will be a question for the jury.

As to the proper construction of the provisions of the policy, we call attention to the case of the Sovereign Camp, Woodmen of the World, v. Hardee, ante p. 542, and the case of Sovereign Camp, Woodmen of the World, v. Easley, ante p. 1012.

From what we have said, it follows'that the ease must he reversed and remanded for a new trial.

It is so ordered.