author: Smith, J.

text:
    Whitted v. State.
    Crim. 3857
    Opinion delivered September 25, 1933.

      A. M. Bradford, S. S. Hargraves and Winstead Johnson, for petitioners.

      Hal L. Norwood, Attorney General, and Roy D. Campbell, for respondent.
   Smith, J.

Appellants were convicted upon a trial under an indictment charging them with the crime of burglarizing the Bice Growers’ Bank of Wheatley, in St. Francis County, Arkansas. To reverse this judgment, they insisted that the trial court had erroneously failed to sustain their plea of former acquittal, it being shown that they had been tried and acquitted for robbing this bank, and that, as both transactions were based upon a single act, an acquittal upon one charge was a bar to a prosecution for the other. We overruled this contention, holding that while an offender may commit the crimes of burglary and robbery in one act he may be separately indicted and prosecuted for each offense, and that an acquittal upon one charge was no bar to a prosecution for the other. Upon this holding the judgment of the circuit court sentencing appellants to a term in the penitentiary for the crime of burglary was affirmed. Whitted v. State, 187 Ark. 285, 63 S. W. (2d) 283.

Subsequently appellants sought their release, under a writ of habeas corpus, from the penitentiary, where they are confined pursuant to the judgment which we had affirmed, upon the ground that they had never been indicted by the grand jury for the crime of burglary. The contention was and is that, while appellants were properly indicted for robbery, they had never been in-dieted at all for burglary, and in support of this contention certain members of the grand jury were called as witnesses, who testified that only one vote was taken upon the matter of indicting appellants, and this vote was to indict them upon a charge of robbery. It was stipulated that members of the grand jury not then present would testify to the same effect.

The foreman of the grand jury testified that the jury voted to indict appellants upon the charges both of burglary and robbery, and that separate indictments were drawn and signed by him and were duly returned into court. This witness was a vice-president of the bank.

The grand jury’s stenographer testified to the same effect. He had taken in short hand the testimony upon which the indictments were returned. The matter was impressed upon his mind by the fact that it was the first case which had come under his observation where a person was indicted for both robbery and burglary as a result of a single act. He drew the indictments, but was uncertain whether to draw an indictment for each offense or to draw a' single indictment with two counts, one charging burglary and the other robbery. He advised with the prosecuting attorney, who directed him to prepare separate indictments, and this he did. The prosecuting attorney corroborated the testimony of the grand jury stenographer. The circuit court clerk testified that two indictments were returned into open court, both signed by the prosecuting attorney and the foreman of the grand jury, in the presence of the entire grand jury, against appellants, one for the crime of robbery and the other for the crime of burglary. Although separate indictments were returned charging appellants with the crimes of burglary and robbery, respectively, it was not necessary that this should be done. The statute provides that certain offenses arising out of the same transaction may be charged in one indictment, and among others are the crimes of robbery and burglary. Section 3016, Crawford & Moses’ Digest. It was not necessary, therefore, that the grand jury vote a second time to indict appellants for the commission of the crimes of robbery and burglary.

Appellants were not tried at the term of court during which they were indicted, but were tried at the next term upon the robbery charged, and were tried at the next ensuing term upon the charge of burglary.

The petition for habeas corpus was denied, and this appeal has been prosecuted to review that action.

The Constitution provides that “No person shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury.” Section 8, article 2, of the Constitution.

Appellants insist that they were tried and convicted upon a felony charge without having been indicted therefor, in violation of the provision of the Constitution above-quoted. But indictments were returned apparently in the manner provided by law, and the question for our decision is whether the validity of the indictment under which appellants were convicted can be questioned in the time and manner here attempted.

Section 3056, Crawford & Moses’ Digest, reads as follows: “Upon the arraignment, or upon the call of the indictment for trial, if there is no arraignment, the defendant must either move to set aside the indictment or plead thereto.”

This statute contemplates that, before the trial of the cause, the accused shall present such objections as he cares to make to the return of the indictment. It does not appear when appellants were advised that there was any question about the validity of the indictments upon which they were tried, but it clearly appears that no such question was raised until they had been acquitted on one charge and convicted on the other. The apparent purpose of the statute quoted is to prevent an accused from speculating on the regularity of the proceedings leading up to his indictment. He cannot take the chance of being acquitted and thereafter, being disappointed in this expectation, raise a question which the statute provides shall be raised upon the arraignment or upon the call of the indictment for trial. The indictment must, of course, charge a public offense. Not even a verdict of guilty cures a failure so to do. Section 3224, Crawford & Moses’ Digest. But questions not involving the sufficiency of the indictment to charge a public offense should be raised in the time and manner provided by statute.

It also appears that there was no competent testimony showing that appellants were not in fact indicted. The only testimony tending to show that the grand.jury did not vote to indict upon both charges was that of members of the grand jury set out above, and it has been held that such testimony is not competent for this purpose. The opinion in the case of Nash v. State, 73 Ark. 399, 84 S. W. 497, reflects the fact that the. appellant Nash had been indicted for manslaughter, and the judge of the court referred the charge to the grand jury for further action, and a second indictment was returned, the last being for murder in the first degree. Before being put to trial, the defendant filed a motion to set aside the second indictment, upon the ground, among others, that only eleven members of the grand jury voted for it or concurred in finding it, and' he offered to make proof of this allegation. The court declined to hear testimony sustaining the allegations of the motion to dismiss, and in that connection it was said: ‘ ‘ The statutes of this State require that the proceedings of a grand jury shall be in secret. They provide: ‘Every member of the grand jury must keep secret whatever he himself, or any other grand juror, may have said, or in what manner he, or any other grand juror, may have voted on a matter before them.’ Sand. & H. Digest, § 2054. ‘A grand juror cannot be questioned for anything he may say, or any vote he may give, relative to a matter legally before the grand jury, except for a perjury he may have committed in making accusation, or giving testimony before his fellow jurors.’ Sand. & H. Digest, § 2056. And further provides: ‘Any grand juror who shall disclose any evidence given before the grand jury, except when lawfully required to testify as a witness, * * * shall be deemed guilty of a misdemeanor, and on .conviction thereof shall be fined in any sum not exceeding $100.’ Sand. & H. Digest, § 1752. Thus the statutes protect the proceedings of the grand jury against publicity, and with especial care they prohibit the disclosure of the votes of the individual grand jurors on finding an indictment. It would be a violation of the policy evinced by- these statutes and an invasion of the secrecy of the grand jury room to permit a grand juror to testify as to the number of the grand jurors that voted for an indictment. State v. Gibbs, 39 Iowa 318; State v. Mewherter, 46 Iowa 88; State v. Fasset, 16 Conn. 457; Gitchell v. People, 146 Ill. 175, 33 N. E. 757; 1 Bishop’s New Criminal Procedure, § 874, and cases cited; and Wharton’s Criminal Pleading and Practice (8th ed.), § 379, and cases cited. The concurrence of twelve grand jurors is required to find an indictment. The presentment of an indictment to the court by the grand jury is evidence of such concurrence. This, if it can be, may be disproved, but not by the evidence of a member of the grand jury. ’ ’

The judgment was reversed, however, but for another reason, and Nash was again convicted of murder in the first degree, and upon his second appeal, reported in 79 Ark. 120, 95 S. W. 147, it was said: “The first error assigned by appellant is the refusal of the court to allow the appellant to introduce as witnesses members of the grand jury which found the indictment in order to show by them that the finding of the indictment was concurred in by only eleven of their members. In somewhat different form, but in essentials, the same question was passed upon when the case was first here. There is a conflict in the authorities on this subject. This court adopted the- view that the admission of such evidence contravenes the statutes requiring secrecy of grand jury proceedings, and that the presentment of the indictment by the grand jury in open court is evidence of their concurrence, which can not be overcome by evidence from the members of that body, if at all. The court finds no reason to change that holding.”

In the case of Cook v. State, 109 Ark. 384, 160 S. W. 223, it is recited that the defendant offered to show, in support of his motion to quash the indictment, that it was not concurred in by twelve members of the grand jury — the number required by law to find an indictment. The record there showed, as it does in the instant case, that the grand jury came into court, and that with all its members present, the indictment in question was returned in open court, and was properly indorsed “A true bill,” and was signed by the foreman, was handed to' the clerk and ordered filed and numbered as the law directs. In sustaining the action of the trial court in refusing to quash the indictment notwithstanding the offered testimony, it was there said: “Where an indictment is properly returned into court, it will be presumed that it was duly found with the concurrence of the requisite number of the grand jury, and the. court did not err in overruling the defendant’s motion to quash the indictment. St. Louis, I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S. W. 938; Nash v. State, 73 Ark. 399, 84 S. W. 497.”

In the case of State v. Fox, 122 Ark. 197, 182 S. W. 906, the facts were that the judge had quashed the indictment on the ground that it was not based on any legal evidence heard by the grand jury. This action of the court was held to be erroneous, it being there stated that the court should set an indictment aside only for the reasons required by the statute. In that connection it was there said: “An indictment is merely an accusation against a defendant and does not even raise a presumption of guilt, and any irregularity in the finding and return of it by the grand jury does not deprive the accused of any substantial right, since the trial before a jury on a plea of not guilty affords an opportunity to establish his innocence or the truth of the charge. Latourette v. State, 91 Ark. 65, 120 S. W. 411; Worthem v. State, 82 Ark. 321, 101 S. W. 757.”

The cases of McDonald v. State, 155 Ark. 142, 244 S. W. 20, and Murphy v. State, 171 Ark. 620, 286 S. W. 871, are to the same effect.

The defendants were, tried upon indictments returned into open court in the manner and form required by law, and there was no competent testimony warranting the court in setting them aside. The writ of habeas corpus was therefore properly denied, and that judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Swift & Company v. Russell.
    4-2978
    Opinion delivered September 25, 1933.

      Hugh Basham, for appellant.

      Paul McKennon, for appellee.
   Humphreys, J.

This suit was instituted 'by appellant against Fred Russell, sheriff, and his bondsmen, in the circuit court of Johnson County, to recover the amount of a judgment it obtained against E. C. Porter in the court of a justice of the peace in Spadra Township, in said county, on the 10th day of February, 1932, for failure to levy and return an execution issued upon said judgment and delivered to said sheriff. The appellees interposed the defense that said sheriff refused to receive and levy the execution because appellant would not pay the fees allowed him by law for levying the process. The cause was submitted to the court sitting as a jury upon the pleadings and testimony, which resulted in a judgment dismissing appellant’s complaint, from which is this appeal.

The sheriff testified that he refused to accept the execution because appellant failed to pay his costs when he demanded same. B. B. Logan, the office deputy, testified that he was instructed by the sheriff not to accept the execution from appellant until the costs of service were advanced, and that the execution was not filed with him.

The testimony detailed above is substantial evidence tending to show that the sheriff demanded his fees, in accordance with § 4591, Crawford & Moses’ Digest, as a prerequisite to serving the execution. This court never disturbs a verdict when supported by any substantial evidence.

No error appearing, the judgment is affirmed.


author: Butler, J.

text:
    Magnolia v. Davies.
    4-3122
    Opinion delivered October 9, 1933.

      W. D. McKay, for appellant.

      Henry Stevens and A. A. Thomason, for appellee.
   Butler, J.

The appellee is the owner of a lot in the city of Magnolia on which his residence is located. It is bounded on the north by an alley which has been opened and in use for a number of years. He brought this action in the chancery court alleging that the appellant, acting through its duly authorized agents,- constructed a tile drain which terminated in the alley which was the north boundary of his property; that the construction of the drain diverted the surface water from its natural flow into the alley which, before such construction, flowed so as not to injure appellee’s property; that by reason of the construction of said drain and the unlawful diversion of the waters the alley was washed and rendered impassable, so that means of ingress and egress to and from his property was destroyed. He alleged that this alley was a public one, recognized and used as such for a great number of years, and that he had used it in going to and from his property; that by reason of the washing of the alley he had been damaged in the sum of $150, and, by reason of the overflowing of his lot, it had been rendered unfit for building purposes, pasture or cultivation, to his damage in the further sum of $350. He prayed judgment for the said sums and that an injunction issue restraining the appellant from further maintaining the tile drain and from further diverting the water on his property.

The appellant moved to transfer the case to the circuit court setting* up that it was an action for damages triable before a jury, and that plaintiff had a full and adequate remedy at law. On the filing of this motion, the appellee amended his complaint setting up again the unlawful diversion of the water into the alley and the resulting damage to his property. He further alleged that the damage was a continuing one; that there was no way in which he could protect his property, and that he had no remedy for the repeated injuries which would result to him as the same would occur after each rain.

Thereafter, the court overruled the motion to transfer over the objections and exceptions of appellant. Whereupon the appellant answered, joining issue with the appellee on the allegations of his complaint. At the request of the appellant, the issues were submitted to a jury, and testimony was introduced on behalf of the appellee tending to establish his allegations and on behalf of the appellant contradictory to the testimony offered by the appellee. The court thereupon submitted the question of damages to the jury on instructions, the correctness of which is not questioned. The jury returned a verdict in favor of the appellant, and on the 12th day of May, 1932, the court- rendered judgment as follows: “It is therefore by the court considered, ordered and adjudged that the plaintiff herein, A. W. Davies, do not have of the defendant, city of Magnolia, damages in any sum, but that the said plaintiff herein do pay any and all costs arising herein. ’ ’

On the 16th day of December following* and at a subsequent term, the court in the same case rendered a decree by which it found that the tile drain diverted the water from its natural flow and conveyed the same in great volumes to its point of discharge in thé alley by which the same was washed out; that the-said washing has left undesirable sedimentary deposits in parts of the alley and upon plaintiff’s land, and that same is continued to be flooded and washed. The court further found that before the construction of the drain this condition did not exist; that by reason of the discharge of the waters plaintiff was deprived of the use of the alley which he had used for a number of years, and that he was unable to protect his land, and that the water will continue to be diverted and conveyed by the spillway as long as the drain is permitted to remain. The court thereupon decreed that the city be perpetually restrained from maintaining the drain and from further diverting the water and pay all the costs of the suit. It is from ’this decree that the present appeal is prosecuted.

The basis of the suit in the trial court and the ground upon which the injunctive relief was sought was that the diversion of the water into the alley damaged appellee’s property, that the same was a continuing damage which worked an irreparable injury. These questions were submitted to the jury for its determination which found that none of the elements of damage complained of existed. This verdict was not conclusive on the court but advisory. Yet, when the court rendered its judgment based upon this verdict, it must be held to have adopted the conclusion of the. jury as its own, and that this would have been its finding, had the question been presented originally to it without the intervention of a jury. Sullivan v. Wilson Merc. Co.. 172 Ark. 914, 290 S. W. 938. Therefore the question upon which appellee’s suit depended was adjudicated, and the court was without power at a subsequent term to render the decree enjoining the maintenance of the drain, since it appears that no damage resulted therefrom.

The decree of the trial court is therefore reversed, and the case dismissed.


author: Johnson, C. J.,

text:
    Rightsell v. Carpenter.
    4-3148
    Opinion delivered October 16, 1933.

      Kenneth Lane and Trieber & Lasley, for appellant.

      E. G. Shoffner, for appellee.
   Johnson, C. J.,

(after stating the facts). In holding the two mortgages void in so far as they affect the interests of the three minor children, the trial court evidently based his findings upon the case of Rose v. W. B. Worthen Company, 184 Ark. 550, 42 S. W. (2d) 1002.

In that case this court had under consideration a mortgage executed by a guardian in behalf of her wards which was duly authorized by the probate court of Pulaski County upon petition therefor, as follows:

“ Petitioners pray that, in order to care for the liens, to keep the heirs in school and prevent them becoming subjects of charity, and to prevent waste and loss of the balance of the estate, that petitioner, as guardian and curator, be authorized and directed to borrow $750 at the best possible rate of interest and to mortgage the interest of her wards in the real estate to secure the payment therefor.”

The probate court of Pulaski County granted the petition of the guardian and authorized the execution of the mortgage. The mortgage was executed in conformity to the probate court order. This court, in disposing of the question there presented, used the following language:

“Under our former statutes no authority was given executors, administrators or guardians to borrow money and mortgage real property of the estate to secure funds for maintenance and education of the minors. But act 195 of 1927 authorizes such executors, administrators and guardians to borrow money for certain purposes and secure the same by mortgage upon the real estate belonging to the estate represented by them. Section 120b, Castle’s Supplement to Crawford & Moses’ Digest, provides the procedure and reads as follows:
“When any administrator, executor or guardian presents to the probate court of the county in which any real property belonging to the estate represented by such administrator, executor or guardian is situated, his petition for permission and authority to mortgage the real property, or any part thereof belonging to said estate, in Arkansas, for the purpose of raising money to pay obligations secured by liens against any real property belonging to the estate represented by such administrator, executor or guardian, wherever situated, such probate court shall examine the same, and hear the evidence, and, if satisfied that it would be to the best interest of such estate, then said court shall grant the petition and authorize such administrator, executor or guardian to borrow money and execute notes for the same, secured by a mortgage or trust deed to be executed by said administrator, executor or guardian on any part of the real estate belonging to such estate, situated in Arkansas. Provided, that the homestead shall not be incumbered by mortgage or trust deed except for the purpose of satisfying existing liens against said homestead.” There is no authority granted by this statute to borrow money and secure the same by a mortgage or deed of trust except for the purposes specified in the act, and it contains no expression authorizing the borrowing of money for the maintenance and education of the minors. The probate court was without power to authorize the borrowing of money and execution of a mortgage by the guardian, etc., for any other purpose than as expressed in the statute, and its order authorizing it, as well as the mortgage executed in pursuance thereof for money to be used for any other purpose, were void, and such mortgage constituted no lien against the lands and cannot be ihforced against them for any money borrowed and expended for any purpose other than as specified in said statute.

After most serious consideration, we have concluded that the doctrine announced in the Bose case, supra, to the effect that no authority of law existed prior to act 195 of 1927 permitting- guardians to mortgage or incumber by deeds of trust their wards ’ interest in real estate in Arkansas for educational purposes is hereby expressly overruled, because:

The Legislature of 1873 passed an act, which is now § 5037 of Crawford & Moses’ Digest, which reads as follows .-

The probate court shall order the proper education of minors according to their means, and for that purpose may, from time to time, make the necessary appropriations of the money or personal estate of any minor, and, when the personal estate shall be insufficient or not applicable to the object, upon application the court may order the lease or sale of real estate, or so much thereof as may be requisite, or that the same be mortgaged for not less than two-thirds of its real value, to raise the funds necessary to complete the education of such minor.” Act April 22, 1873, p. 185.

This section of the act of 1873 has been brought forward by all the digesters of the statutes of this State since that time and has been treated and considered by every one as a part of the laws of this State. Section 5037, quoted supra, in plain and simple language gives to guardians the right and authority, after application to and approval by the probate court, to execute mortgages on their ward’s lands for the purpose of raising- money for the education of such wards. By the terms of this section of the statute, the ward’s rights and interests are protected by the orders and findings of the probate courts, which courts, by constitutional enactment, are vested with superintending control over all such estates. Article 7, § 34, Constitution of 1874. This section of the Digest further protects the interests of the ward, in that the lands must be appraised by disinterested persons appointed by the probate court. It further protects their interest, in this, that such mortgage cannot be executed until it is determined by the probate court that the personal estate of such ward is insufficient or inapplicable to the object.

We now hold that under the act of April 22, 1873, a part of which is now § 5037 of Crawford & Moses’ Digest, guardians and curators do have authority, after approval of the probate court of the county wherein the lands are situated, to execute valid mortgages and deeds of trust upon the wards’ lands for educational purposes.

It is insisted in the instant case that § 5037 of Crawford & Moses’ Digest has been repealed by act 195 of 1927. Section 2 of act 195 of 1927, which is said to repeal § 5037 of Crawford & Moses’ Digest, reads as follows:

‘ ‘ That when any administrator, executor or guardian presents to the probate court of the county in which any real property belonging to the estate represented by such administrator, executor or guardian is situated, his petition for permission and authority to mortgage the real property, or any part thereof, belonging to said estate, in Arkansas, for the purpose of raising money to pay obligations secured by liens against any real property belonging to the estate represented by such administrator, executor or guardian, wherever situated, such probate court shall examine the same, and hear the evidence, and, if satisfied that it would be to the best interest of such estate, then said court shall grant the petition and authorize such administrator, executor or guardian to borrow money and execute notes for the same, secured by a mortgage or trust deed to be executed by said administrator, executor or guardian on any part of the real estate belonging to such estate, situated in Arkansas. Provided, that the homestead shall not be incumbered by mortgage or trust deed except for the purpose of satisfying existing liens against said homestead.”

If § 5037 of Crawford & Moses’ Digest is repealed by act 195 of 1927, it must be by implication, because no direct repeal is effected by plain terms of the act.

Repeals by implication are not favored in the law. Houck v. State, 166 Ark. 613, 267 S. W. 127; State v. White, 170 Ark. 880, 281 S. W. 678; Mays v. Phillips County, 168 Ark. 826, 272 S. W. 62.

This court held in Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649, that “the repeal of any law merely hy implication is not favored and the repeal will not be allowed unless the implication is clear and irresistible.”

Again, this court held in Gilliland Oil Company v. State ex rel. Attorney General, 171 Ark. 415, 285 S. W. 16, that “the presumption is against repeal of statutes by implication.”

Tested by the rules above announced, it is perfectly evident that act 195 of 1927 does not repeal by implication any part of § 5037 of Crawford & Moses’ Digest other than the homestead rights of the minors, which will be discussed hereafter. In other words, we now conclude that act 195 of 1927 gives to g-uardians the additional right and authority to mortgage their wards ’ lands for the purpose of refunding subsisting liens against the same, and withdraws all authority of such guardians to incumber their wards’ homesteads, except for the purpose of refunding subsisting liens against such homesteads.

It will be noted that the proviso appearing at the end of § 2 of act 195 of 1927 reads as follows:

“That the homestead shall not be incumbered by a moidgage or trust deeds except for the purpose of satisfying existing liens against said homestead.” This proviso has the effect of withdrawing- all authority from guardians to moi'tgage or incumber by deeds of trust the homestead rights of minors for any purpose other than “raising money to pay obligations secured by liens against such homesteads.”

The effect of our holding- is that, under § 5037 of Crawford & Moses’ Digest, guardians and curators had the power and authority, with the approval of the probate courts, to execute mortgages and deeds of trust upon the real estate belonging- to their wards for educational purposes, which necessarily included the right to mortgage the homestead of such minors. This authority existed up to the effectiveness of act 195 of 1927. This act withdrew all authority theretofore in guardians to mortgage the homestead except for the purposes expressly recognized in said act.

The two mortgages in the instant case, having been executed after the effectiveness of act 195 of 1927, their validity must be measured by said act.

It follows from what we have said that the mortgage upon lot 10 in block 426, DuYall’s addition to Little Rock, the same being the homestead of the minors, is void in so far as the minors’ interests are concerned, and the chancellor was correct in so holding. The mortgage, however, covering lot 9 in block 426 is a valid lien against the minors’ interest in said lot, and the chancellor erred in holding otherwise.

For the reasons aforesaid, the case is reversed, and the cause is remanded with directions to.the chancery court to enter a decree in conformity with this opinion.


text:
    Todd v. Denton.
    4-3088
    Opinion delivered October 16, 1933.

      Horace Sloan, for appellant.

      Eugene Sloan, Chas. D. Frierson and Charles Frierson, Jr., for appellees.

      Foster Clarke and H. M. Cooley, amici curiae.

   Humphreys, J.

This is a contest between appellees and appellant as to the ownership of the southeast quarter of section thirteen (13), township thirteen (13) north, range five (5) east, in 'Craighead County, Arkansas, containing 160 acres, more or less.

Appellees based their claim of title upon a deed from A. F. Taylor to his daughter, Elizabeth Jane Taylor, of date May 14, 1901, which deed reads in part, as follows:

“Do hereby grant, 'bargain, sell and convey unto the said Elizabeth Jane Taylor, for and during her natural life, the following lands (here lands are described). If at her death the said Elizabeth Jane Taylor shall have issue or grandchildren, then the above real estate shall vest in such children and grandchildren, or children or grandchildren, as the ease may be per stirpes. If the said Elizabeth Jane Taylor shall not leave surviving either children or grandchildren, then upon her death such real estate shall vest in the other lawful heirs.”

Appellant claimed title in his first pleading under an outright purchase of said land from the State of Arkansas, the State having acquired title thereto under a tax forfeiture sale for the year 1922.

In a subsequent pleading, he claimed title thereto by purchase thereof on June 20, 1931, from the Lake City, Nettleton, and Bay Road Improvement District No. 1, in which the land was located, which district acquired title thereto on May 12, 1926, under a regular foreclosure proceeding for failure to pay the improvement taxes for the years 1922 and 1923'.

In a later pleading, he claimed title thereto under a purchase of the land during the pendency of this suit at a levee district tax sale held on October 30, 1931, paying therefor the sum of $268.10, and for which he later received a deed.

On a hearing of the cause, the trial court can-celled the tax deeds relied upon by appellant and quieted and confirmed the title to said lands in appellees and created a lien thereon in favor of appellants for the following amounts:

“Date Item Int. at Amount 10% to 4-1-1933
1930
Oct. 6 Affidavit for donation......$ .50
Oct. 6 Donation certificate. ......... 10.00 $ 2.49
Nov. 5 Affidavit to exchange for State tax deed........................50
Nov. 5 State tax deed....................... 161.00 38.72
Nov. 10 Recording State tax deed ................................................ 1.50 .24
1931
May 9 Paid taxes and drainage assessments due in 1931 127.37 • 23.06
Oct. 30 Amount paid for levee tax deed....................................... 268.10 38.04
1932
Jan. 16 Recording levee tax deed................................................... 2.00 .24
Total principal and interest ....................................$570.97 $102.79
$673.76”

and ordered a sale of the land to pay same, from which is this appeal.

During the. progress of the trial, appellant admitted the invalidity of his State tax deed, so it goes without saying that the trial court did not err in cancelling the State tax deed relied upon by him.

Neither did the court err in cancelling the road improvement district deed of date June 20, 1931. At the time, the land in question had reverted to the delinquent landowners under and by virtue of act 11 of the Acts of 1927 and act 153 of the Acts of 1929 passed in aid of said act 11. Having no title, the road district could not convey any to appellant. The purpose- and intent of those acts was to relieve the delinquent landowners from payment of any debts incurred by said road improvement district prior to the passage of said act 11, and for the Highway Commission to pay said debts. This is the construction placed upon these acts in the case of TriCounty Imp. District v. Taylor, 184 Ark. 675, 43 S. W. (2d) 231. To give effect to appellant’s deed would allow the district to receive the benefit of the payment of its debts prior to the passage of act 11 by the Highway Commission and to keep the land of the delinquent owner also, thereby depriving the owner of any benefit under the acts.

Appellant also contends for a reversal of the decree nnder purchase of said lands during the pendency of the suit at a sale by the St. Francis Levee District for the nonpayment of assessments. At the time of the purchase, appellant was claiming title to the lands under a deed executed to him by.said road improvement district and in recognition of a duty on his part to pay the taxes, and his act must be treated as a redemption thereof for his own benefit. In this view of his act, the purchase at the delinquent tax sale redounded to the benefit of himself if he was the owner, or, if not, to the benefit of the true owners thereof, who are the appellees in this case.

Appellant claimed to be the owner of the property under tax titles which proved to be void, so there is no merit in his claims. Under the circumstances, the court was very generous in his allowances and his declaration of a lien upon the land to pay same.

The decree is therefore in all things affirmed.

Smith, J., dissents.


text:
    Norrid v. State.
    Crim. 3856
    Opinion delivered September 25, 1933.

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

On the 28th day of March, 1933, the Bratt State Bank, located at Siloam Springs, Arkansas, was burglariously entered and robbed by two or more persons acting jointly. Ed Foreman and the appellant were jointly charged with the offense in an indictment charging burglary in the first count and robbery in the second. The trial was severed, Ed Foreman first being put upon trial and found guilty, and on the day following his conviction the appellant was arraigned and entered his plea of not guilty. At the trial which followed, the appellant was convicted on both counts and sentenced to imprisonment in the State penitentiary. From that judgment is this appeal.

On motion for a new trial, error was alleged in that the verdict of the jury was contrary to the evidence, that the court erred in overruling defendant’s challenges for cause of certain jurors, in the exclusion of testimony of witnesses offered to establish the good reputation of certain other witnesses who had testified for the defendant on his defense of an alibi, and in overruling his objection to the argument of counsel for the State and failing to reprimand said counsel, and in overruling* the supplemental motion for a new trial in which newly-discovered evidence was alleged. No abstract or brief has been furnished by the appellant, but this has been supplied by the Attorney General’s office, from an examination of which and of the record we find none of the assignments of error well taken.

The evidence is uncontradicted that on the date alleged the bank was robbed by three men, the appellant being’identified by a number of witnesses as being one of the three. Appellant’s defense was an alibi and a number of witnesses testified that on the day and hour of the robbery he was in the State of Oklahoma, but the jury found the issues against him, and, under well-settled rules, its verdict is conclusive on us, there being* substantial testimony to support it.

No evidence attacking the general reputation of the witnesses offered to establish the alibi had been offered or introduced on the part of the State, and therefore the evidence as to the good character of such witnesses was inadmissible (§ 4189, Crawford & Moses’ Digest), and the court did not err in its refusal to permit the introduction of such evidence.

There was no error in overruling the objection to the argument of counsel for the State or in the refusal of tlie court to reprimand him therefor, for this argument as preserved in the record appears to have been nothing more than a legitimate criticism of the defense offered and of the character of the witnesses testifying* to it.

The alleged newly-discovered evidence contained in the supplemental motion for a new trial was merely cumulative of that offered on the trial of the case, or such as tended to impeach the credibility of the State’s witnesses. This character of evidence is not sufficient to impel the court to grant a new trial, and the court did not abuse its discretion in overruling that motion. Edgeman v. State, 183 Ark. 17, 34 S. W. (2d) 753; Reeder v. State, 181 Ark. 813, 27 S. W. (2d) 989.

The most serious question raised is that contained in the fourth assignment of error relating to the overruling of defendant’s challenges for cause of the twelve jurors who, on the previous day, tried and convicted his co-defendant, Ed Foreman. It is apparent that the evidence tending to connect the defendant with the commission of the offense and establishing his guilt or participation therein was necessarily involved in the trial of Foreman on the preceding day. On the court’s refusal to excuse these jurors for cause, the defendant peremptorily challenged each of them. These jurors, on their voir dire, stated that, although they had heard the evidence in the preceding case, they entertained no opinion as to the guilt or innocence of the defendant and could and would give him a fair trial, if chosen as jurors, on the evidence introduced at his trial and nothing else, and would give him the benefit of any reasonable doubt arising from the evidence as-to his guilt or innocence and resolve that doubt, if any, in his favor. Whether or not, in the interest of justice, notwithstanding the statements of the jurors, the court should have excused them is a question not necessary for us to decide since the record fails to show that the defendant was obliged to exhaust his peremptory challenges in the excuse of these jurors, and for this reason no prejudicial error appears. Hanshaw v. State, 67 Ark 365, 55 S. W. 157; St. L., I. M. & S. R. Co. v. Aiken, 100 Ark 437, 140 S. W. 698; Holt v. State, 91 Ark. 576, 121 S. W. 1072.

In the supplemental motion for a new trial the power to try the case, or to cause a trial jury to be summoned, is questioned because the case was heard and the jury summoned at a special term of the court. Sections 2218-2223 of Crawford & Moses’ Digest, both inclusive, prescribe under what circumstances and in what manner special terms of the court may be called and held. An examination of the record discloses that the .circumstances existed as named in the statute, .that the necessary preliminary orders were made and properly entered on the record of the court, all the facts appearing in said orders necessary to give the court jurisdiction. While the statute does not in express terms authorize the summoning of a special jury or direct the manner in which it shall be selected, the power of the court to require and direct how a trial jury shall be selected and summoned is a necessary incident to the trial, and the court therefore has inherent power to make all necessary and reasonable orders with respect thereto.

It is not necessary that the order summoning* the petit jury should be embraced in the call for the special term. This is so for the reason that it cannot be known in advance whether the grand jury will return indictments; and to issue a venire facias for a petit jury before indictments are returned, and when they might not be returned at all, would be causing the officials unnecessary labor and the county unnecessary expense. The statute expressly empowers the court to provide all necessary judicial machinery for the legal trial, which includes the summoning of a petit jury. The summoning of such jury becomes necessary only after the indictments have been returned, and the due and proper course is not to have a venire facias for same until the indictments are returned. Bettis v. State, 164 Ark., at page 21, 261 S. W. 46.

We have examined the indictment and find the same to have been properly framed and duly returned, and the court fully and fairly instructed the jury as to the law of the case.

No error appearing, the case-is affirmed.


text:
    Curtis v. State.
    Crim. 3859.
    Opinion delivered October 16, 1933.

      C. T. Bloodworth, for appellant.

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

Appellant was indicted and tided in the circuit court of Clay County, Western District, for the crime of murder in the first degree, for killing Jim Sanders in the town of Corning on February 5, 1933. Upon a trial of the cause, appellant was convicted of voluntary manslaughter and adjudged to serve a term of four years in the State penitentiary as a' punishment therefor, from which is this appeal.

Appellant assigns three grounds for a reversal of the judgment:

First: The failure of the officer in charge to keep the jury together as instructed and sworn to do, and his taking them, by permission of the prosecuting attorney and without the knowledge of defendant, to the house of Ralph Parish.

Second: The court’s permitting the prosecuting attorney over objection to question defendant and his witnesses relative to a supposed immoral relation between Bertha Morgan and defendant.

Third: The improper and prejudicial argument of counsel for the State, both in his opening and closing arguments.

(1) The officer in charge of the 10 jurors who had been selected to try the case left them together for about an hour in the business section of Corning, and, after returning, being unable to find accommodations at the hotel where he could keep them together, he took them to the home of Ealph Parish, where he could keep them together for the night. Ealph Parish was not friendly to appellant, and had taken some interest in the prosecution. The next morning, when the officer brought the jury into court, appellant objected to them serving on the grounds that the officer had left them together in the business section of the town and that they had spent the night together in the home of Ealph Parish. The court examined each juror as to whether any one had talked to him about the case and whether any one had attempted in any way to influence him, and each one answered the question in the negative. The court also stated that the jury had not been sworn, and that, if appellant could show that any or all of them had been talked to about the case or influenced in any way or had been guilty of any misconduct, he would excuse him or them. This appellant refused to undertake, whereupon the court impaneled the jury to try the case, over the objection and exception of appellant. It was not imperative, in the first instance, for the court*to keep the jury together, so the court exercised the proper discretion after examining them concerning their conduct during the short time the officer left them and after finding that they had not been guilty of any misconduct and that no influence had been exerted by any one to prejudice them against appellant.

(2) For the purpose of testing the credibility of appellant, who testified in the case, the prosecuting attorney had a right to cross-examine him concerning his past conduct and immoralities. Turner v. State, 153 Ark. 40, 239 S. W. 373. The court sustained the objection entered to the cross-examination of Eecl Brooks touching appellant’s relationship with Bertha Morgan except to that part of his testimony relating to the quarrel which resulted in the killing.

(3) The alleged prejudicial argument of the prosecuting attorney was based upon appellant’s testimony elicited on cross-examination concerning the time he spent in the home of Bertha Morgan and was a legitimate argument.

No error appearing, the judgment is affirmed.


text:
    New York Life Insurance Company v. Parker.
    4-3133
    Opinion delivered October 16, 1933.

      Ewing, King & King and R. V. Wheeler, for appellant.

      Church & Gannaway and Exby, Moriarty & Pierce, for appellee.
   Butler, J.

Appellant company issued its policy of life insurance on the life of Pliny L. Parker on October 2,1930. This suit is brought by appellee, the beneficiary named in the policy to recover on the same for the death of said Pliny L. Parker, which occurred on April 20, 1931. Appellant answered denying liability and made his answer a cross-complaint and asked for the cancellation of the policy on account of fraud alleged to have been practiced by Parker in the procurement of the contract of insurance. The fraud was alleged to be in these particulars: That the application contained a warranty of the truth of the answers and that certain false answers were made to questions propounded, the questions being, did lie have any disease serious or not serious within the past three years, and the name of the physician with whom he had consulted dr by whom he had been treated; and what physicians he had consulted within the past three years, and if within the past three years he had been continuously, and was then, in good health, and if he had consulted a physician for, or suffered from, any disease of the heart, and what physician not already named had he consulted or been examined or treated by within the past five years 1 It was alleged that all these questions had been falsely answered in the negative, when in fact Parker had been treated on September 3, 1930, for a disease of the heart by Dr. J. T. Irby who had then and there diagnosed the said disease as angina pectoris, and had informed the said Parker at the time of its nature and character.

The motion to transfer to equity was denied, and on the issues presented evidence was adduced which resulted in the verdict and judgment for the appellee, from which is this appeal.

Dr. J. T. Irby testified on behalf of the appellant on the questions presented by its answer and cross-complaint, and stated that he had been called to treat the assured about nine or ten o ’clock on the night of September 3, 1930; that he was with him thirty or forty minutes, examined him with a stethoscope, took his blood pressure, and “I was under the impression that he had an attack of angina and told him so.” He testified that angina was a disease of the heart, and that he discussed the condition with Parker and told him to avoid .any excitement — to live as quietly as he could — that any excess of overeating, or anything" like that, would bring on another attack, which might be his last; that he gave the patient a hypodermic, left two or three tablets for his use and described angina, its causes and effect. He further stated that he saw Parker a day or two after, and that he looked pretty badly washed out as if he was weak; that he looked like a very sick man.-

On the part of the appellee, Mrs. Parker testified that she was with her husband all the time, that Dr. Irby was present, and that the doctor did not give a hypodermic or take the blood pressure of tbe patient; that she was present in the room all the time except for a few moments when she went out to get a glass of water. She stated that her husband had eaten a large meal, and about thirty minutes after supper had an attack of indigestion, from which he frequently suffered causing his stomach to feel too full and press against his heart and cause a pain in his chest; that just before she called Dr. Irby that night she gave her husband some soda and water, after which he was better, and when Dr. Irby arrived he prescribed two little tablets that looked like aspirin, but that her husband wouldn’t take them, saying he was feeling better and didn’t need it. She also said that Dr. Irby did not tell her husband that he had trouble with his heart, and that her husband had only consulted a physician within the past five years on account of a gun shot wound; that in October or November of 1930 Parker had influenza. Dr. Watkins, who examined Parker for the insurance testified that he had treated Parker for a gun shot wound and for influenza; that he had examined him for the policy sued on and that during the. examination Parker told him that Dr. Irby had called to see him a night or two before the application for insurance was made, and that the doctor left a little medicine and told him if he had any trouble to take it, but he was all right and did not need it. He said that this information he treated as a visit for a trivial matter and attached no importance to it, and did not think it necessary to include it in the answers to the questions. He stated that he had treated Parker for a number of years, and had never observed any indication of heart disease.

It was in testimony that there was a certain ailment called pseudo or false angina., and its characteristics and its symptoms resembled real angina, except that the pain would endure for an hour or longer, whereas in true angina pectoris the attacks would last only a few minutes and would either disappear or the patient die.

There was testimony given by Dr. LeRoy, called as an expert witness by the appellant company, to the effect that the symptoms in angina pectoris developed suddenly, generally in the extreme or upper left side, the pain spreading down the arm and very violent and excruciating in the region of the heart, extending more or less one way or the other. In addition to that, there was a very great weakness, sweat, fear and a sense of impending death. In addition to that, there is a distinct shortness of breath, headache and things of that sort, the principal thing, however, being great weakness, terrible pain an apprehension of immediate death, pallor and poor circulation.

Dr. Irby did not state that the patient had any of these symptoms. He said “he had quite a bit of pain in his chest and upper part of the abdomen; the pain was in the region of the heart, left side of chest and left shoulder. He (Parker) stated, he had been suffering some little bit when I arrived, possibly an hour or two.”

On this state of the testimony, the court, on its own motion gave the following charge to the jury: “Gentlemen of the jury, the plaintiff, as beneficiary named in a certain policy of insurance, New York Life Insurance Company, sues for recovery of the amount of said policy, and the defendant defends on the ground that the policy is voided by an incorrect answer of the deceased, made to one of the questions in the application. You are charged that the burden of proof is upon the defendant to show the incorrectness of said answer.” And at the request of defendant, appellant, continuing, the court charged the jury that: ‘ ‘ The application of the deceased for a policy of the defendant company reflects, in answer to a question in the application as to whether or not he had ever had a disease of the heart, that the answer was in the negative. You are charged that if you find from the evidence that the deceased had, a short time 'before the application, had an attack of angina pectoris, a disease of the heart, and had been treated by a physician therefor, and that the answer to this question in the application was made by him knowing that he had had such an attack, and been so treated, your verdict will be for the defendant. . If you fail to find such fact, jmur verdict will be for the plaintiff for the amount sued for. ’ ’ And on its own motion the court added to this instruction the following sentence: “That is the only issue, gentlemen, in this case.”

This was all the instruction requested and given. After the jury had been out and deliberated some time, they returned into court and one of the jurors propounded the folloAving question to the court: “May we ask one. more question — Can you give to the jury an instruction on how far the knowledge of the examining-physician bound the company? ” The court, in answering this question, charged the jury in this manner: “In answer to the question, you are told that if there is any knowledge of the company physician from the testimony here that would affect the merits of the ease, as a rule of law, the knowledge of the company physician would be knowledge to the company, unless, of course, you found that there was collusion between the company physician and the applicant to defraud the company, but, as a general rule of law, the knowledge of the physician would be knowledge to the company. At this time, .the court does not recall any part of the evidence that would make this rule of law material.”

It will be observed that the appellant, by the request for the instruction which has been quoted,' pitched its defense on the sole ground that the assured, before the ■date of the application, was afflicted with a disease of the heart and that he knew of the existence of this disease, and fraudulently concealed the same from the insurance company. The appellant insists that there is no legal evidence to dispute the testimony of Dr. Irby, which conclusively shows that Parker not only had a disease of the heart, but that he was well aware of the fact. Appellant further insists that the testimony which might tend to contradict that of Dr. Irby is negative in its nature and has no probative force, and therefore there is no substantial evidence to support the verdict. Appellant insists that the true rule for determining the weight of negative testimony is that when a witness, testifies that .he did not hear a conversation this in no manner contradicts the testimony of another witness who states that he did hear it if there are circumstances which explain why the witness did not hear what was said. Appellant called attention to the fact that Mrs. Parker was absent for a time from the room while Dr. Irby was in attendance upon her husband, and the conversation relative to the nature of his disease between Parker and Dr. Irby could have been had during her absence. This was properly a circumstance for .the jury to consider in weighing the testimony of the appellee. The appellant, however, overlooks the fact that according to her statement she was absent from the room only long enough to procure a glass of water and return with it, and that a conversation of the nature testified to by Dr. Irby could scarcely have been begun and concluded in so short a time. Then, too, the intimate and confidential relation existing between a husband and wife makes it hardly possible that so grave a condition, with its probable result, could have been discussed without the appellee knowing something of it.

There are other circumstances which tend to contradict the testimony of Dr. Irby- — the absence of the symptoms of -angina pectoris, the testimony of Parker’s physician, who had treated him for his ailments and who had examined him from time to time, to the effect that he had discovered during his administrations and examinations no evidences of any heart disease. This, together with the testimony to the effect that Parker was subject to spells of indigestion which caused oppression and pain in the region of the heart, was entirely sufficient to raise the question as to whether or not the appellee was in fact afflicted with a disease of the heart and the attack for which he had been treated by Dr. Irby was angina pectoris, or a different and trivial ailment caused by indigestion, and that the attack was a false angina instead of the more serious trouble which Dr. Irby suspected. Here it may be said, that Dr. Irby did not state in positive terms that Parker was suffering from angina nectoris, but stated: “I was under the impression that he had an attack of angina and told him so.” These questions were submitted to the jurv at the request of the appellant in the instruction noted, and the finding of the jury is conclusive.

The appellant objected and saved his exceptions to the answer of the court to the question asked by the juror relating to the effect of the knowledge of the physician who examined the applicant for the insurance company. This physician related in detail the conversation between himself and Parker from which it appears that he knew of the visit of Dr. Irby, but attached no significance to it, perhaps because in his previous association with Parker in a professional capacity nothing-had occurred which would lead him to suspect.Parker of having any serious organic disease. The evidence .is such that the jury might have concluded that the examining physician, and Parker himself, treated the attack about which Dr. Irby testified as a result of some trivial ailment only. Such ailments, it has often been decided, are not in the contemplation of the parties when application for insurance is made and accepted; and, although the truthfulness of the answers are warranted by the applicant, such ailments would not affect the risk assumed by the insurer, and a false answer would not be a breach of the warranty. Ark. State Life Ins. co. v. Allen, 166 Ark. 490, 266 S. W. 449, and cases cited.

The court also correctly answered the question of the juror. The examining physician in questioning the applicant was the representative of the insurer. If he, after having been informed of the facts by the applicant, chose to ignore them, this conduct would estop the company from avoiding the policy on the ground that the questions were incorrectly answered. Mutual Reserve, etc. Co. v. Cotter, 81 Ark. 205, 99 S. W. 67; Bankers, etc. Co. v. Crowley, 171 Ark. 135, 284 S. W. 4; American N. I. Co. v. Hale, 172 Ark. 958, 291 S. W. 82; Commonwealth, etc. v. Tanner, 175 Ark. 482, 300 S. W. 927; The Maccabees v. Gann, 182 Ark. 1141, 24 S. W. (2d) 456.

It was lastly argued by the appellant that the court erred in refusing to transfer the case to equity. The court correctly retained the case for the reason that all of the defenses urged were available in a court at law, and adequate and complete relief could there be had. No prejudice could therefore have resulted from the court’s action in this regard. Hugus v. Sanders, 164 Ark. 385, 261 S. W. 899; Mott v. First Nat. Bk., 171 Ark. 7, 283 S. W. 3; Bassett v. Mutual, etc. Ass’n, 178 Ark. 906, 12 S. W. (2d) 893.

Let the judgment he affirmed.


author: Mehaffy, J.

text:
    New York Life Insurance Company v. Jacques.
    4-3161
    Opinion delivered October 23, 1933.

      Louis H. Cooke, Feazel & Steel and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Jas. S. McConnell and J. M. Jackson, for appellee.
   Mehaffy, J.

On April 11, 1930, the appellant issued its policy in the amount of $1,000 to the appellee. It is provided in said policy that, should the insured become totally and permanently disabled, the appellant would waive the payment of further premiums on said policy, and pay an income of $10 per month during the continuance of such disability.

Appellee is 23 years of age, a; baker by trade, and knows no other business. He filed suit, alleging that, while said policy was in full force and effect, he became permanently and totally disabled. He became afflicted with infectious arthritis of the left hip joint; his disability was total and permanent.

Due proof was made, and during the period of March 15, 1931, to January 15, 1932, appellant waived premiums and paid appellee $10 per month. It was alleged that on January 15, 1932, the appellant breached its contract of insurance, and discontinued the payment of disability benefits, and, since that time, has continued to breach said contract by refusing to pay the benefits and waives the premiums.

Appellee alleged that he had an expectancy of 40.17 years. He alleged that he was entitled to receive $10 per month from January 15, 1932, for 40.17 years, and at his death his beneficiaries are entitled to receive $1,000. He asked judgment for the present worth of the disability benefits, and present worth of the $1,000, the amount sued for being $2,999.95.

The appellant answered, denying the material allegations in the complaint. The appellant filed amendment to its answer, alleging that it received information to the effect that appellee was employed part of the time, and that he was examined by a physician, and was not totally and permanently disabled, and so notified appellee; that it subsequently reconsidered appellee’s claim, and admitted that he was disabled within the' terms of the contract, and tendered him all of the monthly installments to which he was entitled. Appellant renewed its tender, and offered to pay all installments due, and in all respects comply with the contract.

We deem it unnecessary to set out the evidence. It is sufficient to say that there was ample evidence to sustain the claim of total disability, and the appellant admitted and offered to pay. There was a jury trial and a verdict directed by the court in the amount of $1,982.72 with interest at 6 per cent, per annum. Motion for new trial was filed and overruled, and the case is here on appeal.

Appellant first contends that there is no evidence of a repudiation or breach of the contract. Numerous letters from the appellant to appellee were introduced,' all of them tending to show'- that they did not intend to repudiate the contract, but it is admitted that they declined to pay disability benefits from January 15, 1932, claiming that appellee was not totally disabled, and that appellant was not under any obligation to pay the disability benefits. It also advised him that he must pay his premiums.

The evidence tended to show that the appellant had made examinations, determined that he was totally disabled, and paid disability benefits for a number of months, and then declined to pay further, at a time when appellee’s disability was the same that it was when they first began to pay disability benefits.

It is the contention of the appellee that appellant was not acting in good faith, and that its conduct was a repudiation and breach of its contract; that it knew appellee ’s condition and refused to comply with the terms of the contract.

The court directed a verdict, thereby holding as a matter of law that the appellant had breached its contract. This was error. The court should have submitted to the jury the question whether appellant had breached its contract.

The court also refused to permit the appellant to introduce evidence to show that appellee’s affliction was such as to prevent him from taking a normal amount of exercise and to make him more susceptible to diseases of all kinds, and refused to permit appellant to show the present values of amounts in controversy at periods of 5, 10, 15, 20, '25 and 30 years. This evidence was offered on the theory that the jury might find that the appellee, who claimed to be totally and permanently disabled, would not live out the full expectancy of a normal, healthy person.

We think the court erred in not permitting appellant to make this proof. The mortality tables were properly admitted in evidence, but those tables are for the purpose of showing the expectancy of a person in health, and, in order to determine the expectancy of a person who is not in good health, it is proper to introduce the mortality tables and all other evidence tending to show his expectancy.

We said in a recent case: “Appellant contends that the court erred in admitting in evidence the Carlyle Mortality Tables over its objection and exception. It is urged that there was no issue of the expectancy of Alice Jackson’s life in this case, and that the table of expectancy of life was therefore inadmissible. * * *

“This court, in the case of Arkansas Midland Rd. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550, said that ‘evidence of disease or of ill health or of hazardous employment may impair or destroy probative effect of tables of expectancy of life, but it does not make them inadmissible. ’

“No error was committed in admitting the mortality tables, but reversible error was committed in accepting them by the court as conclusive. At the time of the breach of the contract, Alice Jackson was sick, and her condition would have entered into her expectancy of life. At the time of the breach of the contract, when her right of action accrued, her expectancy of life was necessarily in dispute and to be ascertained from all the evidence and circumstances surrounding her condition of health. This issue of fact being in dispute, it Avas a question for the jury and not the court to determine.” Nat. Life & Acc. Ins. Co. v. Sims, 187 Ark. 969, 63 S. W. (2d) 524.

.Insurance policies like the one herein involved have been construed by this court many times, and we do not deem it necessary to discuss these questions or review the authorities. Some of the recent cases are as follows: Nat. Life & Acc. Ins. Co. v. Whitfield, 186 Ark. 198, 53 S. W. (2d) 10; Mo. State Life Ins. Co. v. Johnson, 186 Ark. 519, 54 S. W. (2d) 707; Mo. State Life Ins. Co. v. Holt, 186 Ark. 672, 55 S. W. (2d) 788; Mass. Prot. Ass’n v. Oden, 186 Ark. 844, 56 S. W. (2d) 425; Mutual Life Ins. Co. v. Marsh, 186 Ark. 860, 56 S. W. (2d) 433; Guardian Life Ins. Co. v. Johnson, 186 Ark. 1019, 57 S. W. (2d) 555; Mo. State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Sovereign Camp, W. O. W., v. Meek, 185 Ark. 419, 47 S. W. (2d) 567; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310.

If there Avas a breach of the contract by appellant, appellee is entitled to recover. If there was no breach of the contract, then appellee is entitled to recover the disability benefits, and is relieved from the payment of premiums.

For the errors indicated, the judgment is reversed and the cause remanded for new trial, with permission to introduce evidence to show the expectancy of life of appellee, and with directions to submit the question to the jury as to whether there was a breach of contract.

Justices Smith and Butler concur in the reversal of the judgment, but they believe that the evidence shows that there was no breach or repudiation of the contract, and the court should have so declared.


author: McHaney, J.

text:
    Producers’ Sand & Gravel Company, Inc., v. Patterson.
    4-3141
    Opinion delivered October 23, 1933.

      Abe Collins, for appellant.

      Shaver, Shaver & Williams, for appellee.
   McHaney, J.

This appeal challenges the sufficiency of the evidence to support the verdict and judgment in appellee’s favor for $1,000 against appellant. Only a question of fact is therefore presented for decision. It is conceded, under the well-established rule of this court, that, if there is any evidence of a substantial nature to support the verdict when viewed in the light most favorable, and indulging every legitimate presumption in its favor, it must be permitted to stand. The facts, briefly stated, and about which there is little dispute, are as follows: Appellant operates a gravel plant and rock crusher on the south bank of Little River, getting its material therefrom. This material is taken from the river bed, dumped into a hopper, from which it passes through a large inclined cylindrical screen having round holes one and one-half inches in diameter. This screen revolves slowly, and the gravel and rock therein is washed by the injection of water. The small rock or gravel pass through the holes in the screen, drop into a chute and are conveyed to the gravel bin in which appellee was working at the time of the injury complained of, removing mud balls and trash or sticks that passed through the screen. The larger rock, such as would not pass .through the holes in the screen, gravitated to the lower end of the screen, dropped into another overhead chute, about 10 feet above the floor of the gravel bin, 14 feet long east and west by 13 feet wide north and south, and were conveyed by gravity to the rock crusher on the west side of the bin, where they were crushed. This latter chute was feet wide at the screen and tapered to two feet wide at the crusher, all the bias being taken from the north side of the chute. It was made of plank or boards, 2 x 12 inches, with sides of the same size, was feet long and dropped a distance of 2 feet from screen to crusher. The bottom of the chute was 8 inches below the screen, so that, when the rock fell out of the screen into the chute, they fell a distance of 8 inches'before striking the bottom of the chute and then on down at an angle or fall'of 2 feet in a distance of feet. Appellee was working, as above stated, in the bin over which this chute passed, on the north side next to the wall, about 5% feet distant, when, as he testified, a rock as large as his two fists fell or jumped out of the overhead chute, which had no screen or covering over the top, and struck him with great force on the left testicle, causing serious, painful and permanent injuries. No one else saw the rock fall. He made no outcry, nor did he communicate the fact of his injury to any one at the time, although another employee was working in the bin with him on the south side, and other employees were near by. Just what caused the rock to fall out of the chute and to travel a distance of 5½ feet therefrom and at right angles thereto, he was unable to explain. He says the first he saw of the rock it was in front of him on a level with his breast bone, and that it struck him in the manner stated; that he was seriously injured from some cause, there is little room to doubt, as two or more physicians who examined him testified thereto and that the injured part was perishing away.

Appellant contends that it was impossible for the injury to have happened in the manner stated. We cannot agree that it was impossible. While to us it may appear improbable, we cannot say it could not have happened or that it is contrary to the laws of nature, in view of the positive testimony of appellee that he was so injured and the result thereof, corroborated by others that he had received an injury. As said in 18 C. J., p. 19: “But improbability alone is not sufficient ground for holding a fact not proved where it is supported by competent and apparently credible evidence.” Nor can we say as a matter of law there was no negligence in failing to guard or screen the top of the chute to prevent rocks from falling out. The evidence shows that rocks did on other occasions fall out of that chute, endangering those working below. Rocks weighing as much as 100 pounds passed through it and with a steep incline of 2 feet in 5½ feet, plus the momentum of such a rock in a fall of 8 inches from the crusher, it was a question of fact for the jury to say whether a rock of smaller size might be thrown by being struck by a much larger one, and whether, in the exercise of ordinary care, appellant should have provided some safeguards to prevent injury to employees working in the bin.

There being some substantial evidence to support the verdict and judgment, the judgment must be affirmed.


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    Pacific Mutual Life Insurance Company v. McCombs.
    4-3168
    Opinion delivered October 30, 1933.

      Owens & Ehrman, for appellant.

      R. E. Wiley, for appellee.
   Johnson, C. J.,

(after stating- the facts). Appellant contends, first, that the trial court erred in refusing to transfer this case to the Federal court. We think this contention has been definitely decided adversely to appellant’s contention in the case of Standard Life Insurance Company v. Robbs, 177 Ark. 275, 6 S. W. (2d) 520, wherein this court held, quoting from the first headnote:

“An action against an insurance company for installments due under a policy totaling $1,700 as not removable to the Federal court, though the total installments to become due under the policy exceed the jurisdictional amount of $3,000.”

The doctrine announced in the Robbs case has not been overruled, impaired or modified by any opinion of the Supreme Court of the United States.

It is next contended that the trial court erred in permitting two witnesses, Messrs. Rutland and Balding, to give their opinions in reference to the cause of the death of Mr. McCombs, to-wit: drowning. The record discloses that the two witnesses referred to were embalmers located in Little Rock, and that each of them had had a number of years of experience in handling- dead bodies. Among the bodies so handled were deaths caused by drowning. These witnesses, after detailing the facts and circumstances ascertained from the. preparation of the body for burial, testified that in their opinion the deceased died from drowning. This court has many times held that a nonexpert witness may testify as to his opinion, after stating the facts on which the opinion is based. Griffin v. Union Trust Company, 166 Ark. 347, 266 S. W. 289; Benefit Association v. Jacklin, 173 Ark. 937, 294 S. W. 353; St. Louis-San Francisco Railway Company v. Barron, 166 Ark. 641, 267 S. W. 582; Bush v. Brewer, 136 Ark. 246, 206 S. W. 322.

The opinions of the witnesses referred to were competent for still another reason. In Railway Company v. Shoecraft, 56 Ark. 465, 20 S. W. 272, this court said: “A witness ’ opinion is admissible as evidence, not only where scientific knowledge is required to comprehend the matter testified about, but also where experience and observation in the special calling of the witness give him knowledge of the subject in question beyond that of persons of common intelligence. ’ ’

The next contention is that the trial court erred in giving, modifying and refusing to give certain instructions. The action complained of appears definitely from the quoted instruction No. 2. It will be noted that the theory on which the case was submitted to the jury was that the disease which would take the death out. of the policy must be a settled condition as distinguished from a temporary disorder. All instructions requested and given by the trial court were made to conform to this theory. This court has many times held that insurance policies will be construed most favorably to the insured, since the policy is couched in the language chosen by the insurer. Fidelity & Casualty Company v. Meyer, 106 Ark. 99, 152 S. W. 995; Maloney v. Maryland Casualty Company, 113 Ark. 174, 167 S. W. 845. It will be noted that the insurance policy uses the general term “disease” to create an exception to the general coverage of the policy. The meaning of the word “disease” could have been restricted by appellant had it so desired, and, since there are no restrictions in the policy in reference thereto, we should give it its usual and ordinarily understood meaning. Webster’s International Dictionary defines the word as follows: “A disease is usually deep seated and permanent or at least prolonged; a disorder is often slight, partial and temporary.” Since the policy itself gives no definition of the word “disease” as used in the policy, it should be given its usual ánd ordinary acceptation. When this is done in the instant case, it was perfectly proper for the trial court to tell the jury what, under the laws, was a disease as distinguished from a temporary disorder. We therefore conclude that the trial court committed no error in modifying all requested instructions to conform to this definition. The views here expressed are in accord with many opinions on the subject. See case notes in 34 and 52 L. R. A. (N. S.) 445 and 1203, respectively. Other alleged errors are urged to the instructions given and refused by the trial court, but we deem them not of sufficient importance to discuss in this opinion. It suffices to say that the trial court submitted the case to the jury under instructions which were fair, impartial and in conformity with the law as we have herein construed it.

The next insistence for reversal is that the trial court erred in allowing an attorney’s fee and a 12 per cent, penalty on the amount recovered. The contention is that the prayer of the complaint was for $1,968.75 and appellees recovered only $656.25. It is perfectly apparent from the language used in the complaint that the amount sought to be recovered was 3½ per cent, per annum, interest on the aggregate amount due. This, of course, fixed the amount demanded and the calculation of $1,968.75 was a mere error in figures. At any rate, before the case was submitted to the jury, by permission of the court, the complaint was amended to conform to the testimony, and a recovery was had for the full amount based upon the per cent, calculations. Life & Casualty Company v. Sanders, 173 Ark. 362, 292 S. W. 657. Appellant denied liability on the first complaint and continued to deny liability after the complaint was amended.

We therefore hold that plaintiff did recover the amount sued for, and was entitled to a reasonable attorney’s fee and a 12 per cént. penalty on the amount recovered. To maintain its position, that appellees are not entitled to recover attorney’s fee and penalty in this ease, we are cited to Pacific Mutual Life Insurance Company v. Carter, 92 Ark. 378, 123 S. W. 384. This case is easily distinguishable from the Carter case. In that case the amount of recovery was the main issue, it being contended that the insured had engaged in a more hazardous occupation which by the terms of the policy reduced the amount of recovery. No such contention is here made. A definite denial of liability was asserted and maintained throughout the trial.

No error appearing, the judgment is in all things affirmed.


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    International Shoe Company v. Waggoner.
    4-3280
    Opinion delivered October 30, 1933.

      A. R. Cooper, for petitioner.

      Wm. C. Gibson and Ingram & Moher, for respondent.
   Smith, J.

Petitioner prays mandamus to compel the judge of the Arkansas County Circuit Court and the clerk thereof to issue an execution upon a judgment of that court rendered January 16,1933. Stays of execution had been granted by the circuit judge from time to time, the last of which expired October 15,1933.

The clerk has responded that he acted under the orders of the judge, and the judge has made the oral response that there will be no further stay of execution, and that execution may issue at the request of petitioner, the judgment plaintiff.

The case is now a moot one, as the order of this court is not necessary to have an execution issued, and the application for mandamus will be denied for that reason.

It may be said, however, that the circuit court was without authority to order the execution stayed. It was so expressly held in the case of Taylor v. O’Kane, 185 Ark. 782, 49 S. W. (2d) 400.


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    Terry v. Harris.
    4-3317
    Opinion delivered October 30, 1933.

      W. G. Riddick and Roy D. Campbell, for appellant.

      Arthur G. Frankel and June P. Wooten, for appellee.
   Smith, J.

Suit was filed by Brooks Hays in the Pulaski Circuit Court against David D. Terry and Lee Miles, as chairman, and H. Gr. Combs, as secretary, of the Democratic State Central Committee, the complaint in which contained the following allegations: A Democratic primary election was held on September 26, 1933, in the Fifth Congressional District of Arkansas, for the purpose of nominating a Democratic candidate for Congress in said district. The district is composed of Pulaski, Franklin, Yell and five other counties. At this election the plaintiff, Hays, and the defendant, Terry, were the only candidates. The total number of votes cast in said election, as tabulated and certified to by the various county central committees, was 18,927, of which number Terry received 9,776 .votes, and Hays 9,151 votes, giving Terry an apparent majority of 625.

It was alleged that illegal votes were cast and counted for Terry as follows: 300 in Pulaski County, 200 in Franklin County, and 1,450 in Yell County, and that, if only the legal votes cast at said election were counted, Hays will have a clear and large majority. It was also alleged that Terry had paid money to various persons in Yell, Pulaski and Franklin counties for soliciting votes for Terry, in violation of § 3902, Crawford & Moses ’ Digest.

The complaint alleged that the defendant, Lee Miles, as chairman, and the defendant, H. G. Combs, as secretary, of the Democratic State Central Committee of Arkansas, under the terms of a resolution adopted by the Democratic State Central Committee, were directed to issue a certificate of nomination to the successful candidate in said election.

It was prayed: (a) That the ballots he purged and Hays declared the nominee; (b) that a finding he made that Terry has been guilty of violating the provisions of the corrupt practice act; and (c) that Miles and Combs, as chairman and secretary, respectively, of the Democratic State Central Committee, “he enjoined from certifying the nominee for Congress in said Fifth Congressional District until further orders of this court. ’ ’

Attached to the complaint, as an exhibit thereto, is a copy of a resolution adopted by the Democratic State Central Committee on June 20, 1933, under which the election was called and held. It was therein, among other things, ordered that a Democratic primary election he held on the second Tuesday in September, 1933, “for the purpose of nominating a Democratic candidate for Congress from said district, to be voted upon at a special election to he called for the purpose of filling the unexpired term created by the resignation of the Honorable Heart sill Ragon.” The resolution provided that “the returns of the election shall he made and certified to the secretary of the State Central Committee within the time, after said special primary election is held, as is now provided by law for such returns and certificate made following general primary elections. The chairman and secretary of the State Central Committee will cast up such returns, based on said certificates, and certify the nominee to the State Election Board.”

The resolution requested the Governor not to call a special election “until such time as will enable the holding of the primary herein called and in the second primary, made necessary under the laws of the State of Arkansas,” and that no nominee be certified except the recipient of “a majority of the votes cast at such special election or second primary. ’ ’

In addition to this complaint, the plaintiff, Hays, filed a “petition,” in which he alleged that, unless restrained, Miles, as chairman, and Combs, as secretary, of the Democratic State Central Committee, will issue a certificate of nomination to the defendant, Terry, and it was prayed that the chairman and secretary of the committee be ordered to refrain from issuing such certificate pending this contest and until the further order of the court.

After argument upon this petition, the presiding judge indicated his intention to grant the prayer thereof, but, upon agreement of counsel, that action was held in abeyance until a petition for prohibition could be filed in this court. That petition has been filed, and the facts herein stated have been made to appear, and it is prayed that the circuit court be prohibited from restraining the chairman and secretary of the Democratic State Central Committee from certifying the result of said election until the conclusion of this contest thereof.

It is true, as counsel for respondent contend, that the writ of prohibition does not issue to prohibit a lower court from erroneously exercising its jurisdiction, but issues only when that tribunal is wholly without jurisdiction, or is proposing to act in excess of its jurisdiction. Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13. The question presented for our decision is therefore whether the circuit court has the jurisdiction to restrain the party officers from complying with the resolution under which the primary election was called pending the determination of the contest of that election.

It is settled that the right to contest an election in the courts is one of statutory creation, and one which did not exist before that right was conferred by statute. Walls v. Brundidge, 109 Ark. 261, 160 S. W. 230; Gain v. McGregor, 182 Ark. 637, 32 S. W. (2d) 319.

The statute conferring this right of contest is the initiated act No. 1, found in volume 2 of the Acts of 1917, page 2287, and appearing as § 3757 et seq., Crawford & Moses’ Digest.

The order which the circuit court is about to make is one which, if made, will prevent the party authorities from determining and certifying who this nominee is, and we find nothing in the initiated act referred to which has conferred that jurisdiction upon the courts. The act has not deprived the party authorities of the right and duty to determine, in the first instance, who its nominee is for any particular office. The act does confer the jurisdiction upon the courts to review that finding, which review may be made upon an inquiry into any and all relevant facts tending to show which candidate received the majority of the legal votes. Robinson v. Knowlton, 183 Ark. 1127, 40 S. W. (2d) 450.

Section 3769, Crawford & Moses’ Digest, which is part of § 11 of the initiated act of 1917, provides that the county central committee shall certify the nomination of all county and township officers, “and shall certify the vote of all candidates for circuit and district offices to the circuit and district committees (including congressional districts), and shall certify the vote for candidates for United States senate and for all State offices to the State Central Committee.”

The statement is made in the briefs and is treated by opposing counsel as an undisputed fact that the congressional committees referred to are nonexistent. It was, no doubt, because of this fact that the resolution herein-above referred to directed the State Central Committee to “cast up such returns, based on said certificates (of the county committees), and certify the nominee to the State Election Board.”

The right to contest the certification of nomination or the certification of the vote is conferred in § 12 of the initiated act, and the procedure is there defined. Sections 3772 and 3773, Crawford & Moses’ Digest. But these provisions are not intended to supersede the power of the party committees to determine, in the first instance, who its nominees are. The right conferred, as we have said, is to have that determination and certification judicially reviewed in the manner provided by the act.

It is true the election here contested is a primary specially called to nominate a single candidate, and is not a general primary election; but this fact does not alter the law of the case. The statute must receive the same interpretation in either case.

It is suggested in the brief of the respondent that the Governor may not call a special election at which the party candidate may be voted for until after the termination of this contest and the actual nominee ascertained and declared, and that the certification of nomination should be postponed until the court is prepared to pronounce judgment.

But, if the court has this power in the contest of a special primary election, it has the same power in a contest growing out of a regular primary, and, if so, delay in deciding the contest might operate in having an election held at which the party would have no candidate for the contested office. The law fixes the time when regular primary elections shall be held and general elections following them, and the courts are without power to change those dates, and, if the courts may prevent party committees from certifying the result of a primary election pending its own review and final determination of a contest, it might frequently happen that the party would have no nominee entitled to have his name placed upon the ticket as such, and a general election, which the courts cannot postpone, would result in the election of some person running independently of a party nomination, or as the nominee of another party, in which event the contest would be fruitless to all persons concerned.

It was not contemplated that the party holding the primary election should be deprived of the right to have a candidate voted for as its certified nominee. On the contrary, it appears to have been clearly contemplated that the person certified as the nominee of the party by the appropriate committee thereof should be treated as the candidate of his party until it shall have been adjudged that he is not the legal nominee.

The litigation necessary to determine the question of the nominee at the primary election may be protracted to a date beyond the day of the general election without the court having determined who the legal nominee is; but it does not follow that the party must be without a candidate. The party does have a candidate under the case stated, that person being the candidate who has been certified by the appropriate party committee as the party nominee. This is made clear by the provisions of § 15 of the act of 1917, which appears as § 3776, Crawford & Moses’ Digest. This section provides that, if the person certified by the appropriate committee to be the party nominee is elected at the general election, and it is later determined, after the contest has been heard and decided, that he was not entitled to the nomination, “then such judgment” (that he was not entitled to the nomination) “shall operate as an ouster from.office, and the vacancy in it shall be filled as provided by law for filling vacancies in such office in case of death or resignation.”

If these statutory provisions do not apply to a contest for a congressional nomination, then there is no authority for such contests. If they are applicable, then the candidate certified by the party committee as its nominee remains such until the court has determined in the manner provided by law that the contestee is not the legal nominee.

We conclude therefore that the circuit court was without jurisdiction to restrain the State committee from complying with the resolution pursuant to which the primary was called, by tabulating and certifying the result of the election, subject, of course, to the judicial review provided by law.

It is therefore ordered that the writ of prohibition issue as prayed, directing the circuit court to take no action preventing the party authorities from certifying the nomination in accordance with the party rules.


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    Continental Life Insurance Company v. Gray.
    4-3165
    Opinion delivered October 30, 1933.

      Charles G. Revelle, Courtney S. Goodman and Arnold & Arnold, for appellant.

      Pratt P. Bacon and Shaver, Shaver & Williams, for appellee.
   Humphreys, J.

Appellee brought separate suits in the circuit court of Miller County to recover from appellant the sum of $2,500 less $265 borrowed by the insured from appellant on each of two life insurance policies issued by appellant to her husband, in which she was the beneficiary.

Appellant filed an answer in each case, denying any liability whatever.

The cases were consolidated for the purposes of trial and submitted upon the pleadings and testimony. At the conclusion of the testimony, it was agreed that there was no dispute on the facts, and each party asked for an instructed verdict; whereupon the court instructed a verdict in favor of appellee for $2,500 less $292.05 on policy No. 67782, and a verdict in favor of appellee for $2,500 less $296.60 on policy No. 68195, and rendered judgments in accordance with the verdict, from which is this appeal.

The first policy was issued and delivered on the 26th day of February, 1925, and the second on the 14th day of March, 1925. Each policy was issued in consideration of an annual premium of $70.33, payable annually in advance. Seven annual premiums were paid as they matured, the last being paid respectively on February '26th and March 14, 1931, which carried the policies respectively to February 26th and March 14,1932. Prior to the payment of the last premiums, the insured had borrowed on each policy $265. Each policy contaiiied a table of nonforfeiture and loan values, showing that, after the payment of the seventh premium, the loan value on each policy was $320. The insured did not pay the premiums on February 26th and March 14,1932, respectively, either at the time or within the grace period. Insured died on the 7th day of June, 1932.

The main contention of appellant for a reversal of the judgment is that the loan value of $320 was not available during the 7th year or until the 8th annual premium had been paid. We find nothing in the table of loan values supporting such a contention. The paragraphs in the policies relative to “cash loans” and “automatic premium loans” clearly provide that appellant will lend on the sole security of these policies any sum within the loan value stated in the table of loan values for the year in which the loan is made; and that appellant will advance any premium becoming due as a loan against the policy provided the loan value of the policy is sufficient to cover same and provided further that insured shall have made written request therefor, either in the application or otherwise. Under the rule announced in the case of Missouri State Life Insurance Company v. Miller, 163 Ark. 480, 260 S. W. 705, the loan value of these policies was available after the payment of the seventh annual premium and before the payment of the eighth annual premium. The insured had -borrowed only $265 on each policy, leaving a loan balance of $55 on each, which was more than enough in the hands of appellant to pay the premiums beyond the death of the insured, which occurred on June 7, 3932. Forfeitures are frowned upon by the courts, and insurance companies will not be permitted to declare forfeitures for nonpayment of premiums as long as they have funds available in their hands with which the premiums might be paid. The duty rests upon them to pay the premiums out of such funds and thereby prevent forfeitures. Security Life Insurance Co. v. Mathews, 178 Ark. 775, 12 S, W. (2d) 865. Appellant contends, however, that the premiums had been paid annually, and that there was not sufficient loan value to pay the full annual premium, and that the insured had not exercised an election under the policy to have the annual payments changed to quarterly payments. This makes no difference. A legal duty rested upon appellant to make the application as far as it would go in order to protect the policyholder. We so ruled in the cases of Mutual Life Insurance Company v. Henley, 125 Ark. 372, 188 S. W. 829, and Pfeifer v. Missouri State Life Insurance Company; 174 Ark. 783, 297 S. W. 847.

Appellant also contends for a reversal of the judgment because the court imposed the statutory penalty and attorney’s fee upon it. This contention is made upon the theory that less was recovered than sued for. Appellant denied any liability whatever or that appellee was entitled to any sum on the ground that the policies had been forfeited. The fact is that appellant really recovered the amount sued for. The only amount that the court deducted was the premiums due to appellant by the insured from February and March, 193-2, to the date of the insured’s death, which occurred oh June 7, 1932. This point was decided adversely to the contention of appellant in the case of Life & Casualty Company v. Sanders, 173 Ark. 362, 292 S. W. 657.

No error appearing, the judgment is affirmed.