author: Humphreys, J.

text:
    National Life & Accident Insurance Company v. Sims.
    4-3105
    Opinion delivered October 9, 1933.

      King, Mahaffey, Wheeler & Bryson, for appellant.

      Jones & Jones, for appellee.
   Humphreys, J.

This suit was brought in the circuit court of Miller County by appellee, the sole beneficiary under an insurance policy No. D-8,509,279 and the sole heir of her mother, Alice Jackson, to whom the policy was issued and delivered by appellant. The policy undertook for payment of premiums to pay the insured $66 on the anniversary of the policy next after the insured became 69 years of age; and, in case of permanent disability prior thereto due to sickness, to pay the insured $6 a week, limiting the number of days to 182 days during any twelve consecutive months. It was alleged in the complaint that the insured became permanently disabled from sickness covered by the policy the latter part of the year 1931, and remained so until her death on May 3,1932; that appellant ceased to pay the insured her weekly indemnity on and after December 9, 1931, thereby, on said date, breaching its contract with her. That appellant denied all liability under said policy. The prayer of the complaint was for damages in gross, amounting to $2,678, with a statutory penalty thereon of 12 per cent, and a reasonable attorney’s fee.

Appellant filed an answer denying the material allegations of the complaint and alleging that the insured became disabled on account of a venereal disease not covered by the policy.

The cause proceeded to a hearing upon the pleadings and testimony, at the conclusion of which the court submitted the cause to the jury upon one issue of fact, the theory being that all other allegations in the complaint had been established by undisputed testimony. The issue of fact submitted to the jury will be reflected by the instruction given by the court, which is as follows:

“If you find from a preponderance of the evidence in this case that the insured was suffering from a venereal disease, to-wit, syphilis, and that her sickness and subsequent death resulted from syphilis, you will find for the defendant; if you fail so to find, your verdict will be for plaintiff in the amount sued for. ’ ’

The jury found the issue of fact submitted to them against appellant, and returned a verdict against it for $2,999.36, including the statutory penalty of 12 per cent. A judgment in accordance with the verdict was rendered in favor of appellee, and an attorney’s fee of $450 was included, from which is this appeal.

The appellant is bound by the verdict of the jury unless the trial court erred in the admission of testimony excepted to or in refusing to submit some other issue involved about which there was a dispute in the testimony.

Appellant contends that the court erred in admitting in evidence the. Carlisle 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. The cause of action accrued to Alice Jackson on the date appellant breached the contract, and at that time she had an expectancy of life. This suit survived to Alice Jackson’s only heir, and, by this survivorship, appellee, the heir, acquired all the rights of her mother which existed at the time the action accrued to hep mother. This court said in the case of National Life & Accident Insurance Company v. Whitfield, 186 Ark. 198: “The breach of contract, the appellant company’s refusal to pay under its terms and denial of any liability thereunder, gave the insured the right to sue for gross damages for such breach of contract, and the court has held that the measure of such damages is the present cash value of the past and future installments of the weekly indemnity based on the life expectancy of the insured. The rule as to the measure of damages is not modified by the fact that the insured died long before the end of the period of his life expectancy, the rights of the parties to a contract which has been breached being fixed at the time of the breach thereof.”

This court, in the case of Arkansas Midland Railroad 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 siek, 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 was a question for the jury and not the court to determine.

It is also contended that the statutory penalty has no application to suits for breach of contract. This court has held otherwise in the case of Sun Life Insurance Company v. Coker, ante p. 602, and cases cited therein.

On account of the error indicated the judgment is reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    Stokes v. Home Life Insurance Company.
    4-3126
    Opinion delivered October 9, 1933.

      A. G. Meehan and John W. Moncrief, for appellant.

      Mann & Mann and Ingram & Moher, for appellee.
   Humphreys, J.

The only question presented 'by this appeal is whether the Central States Life Insurance Company, assignee of the Homo Life Insurance Company, has a right to set off its deposit of $11,000 in the Merchants’ & Planters’ (Bank of Humphrey against the amount of $1,884.46, which it owed the bank on the 27th day-of April, 1932, when this suit was instituted by E. B. Stokes as trustee for Cora Belle Watson, and said bank upon a life insurance policy issued by the Home Life Insurance. Company on June 1, 1930, to said Stokes as trustee aforesaid upon the life of J. T. Watson. The life insurance policy was for $5,000, and at the time J. T. Watson was indebted to the bank in an amount equal to about one-half the face value thereof. The policy was for the. bank’s protection to the extent of said indebtedness.

On November 17, 1930, said bank became insolvent, and the Bank Commissioner took possession of its assets and proceeded to liquidate same. Several months after the failure of said bank, the Central States Life Insurance Company acquired the assets of the Home Life Insurance Company and assumed the payment of all its death claims. Among the assets which the Central States Life Insurance Company acquired was the deposit of $11,000 which the Home Life Insurance Company had in said bank on the date the bank became insolvent, for which amount the Central States Life Insurance Company subsequently presented a claim to the Bank Commissioner. Subsequent to the insolvency of the bank .and the acquisition of the $11,000 deposit by the Central States Life Insurance Company, to-wit, on June 9, 1931, John T. Watson died, and the insurance companies became liable on the policy to the trustee aforesaid for Mrs. Watson, and said bank according to their respective interests therein. At the time John T. Watson died, he owed the bank $1,884.46. The insurance companies admitted their indebtedness to the trustee for the benefit of Mrs. Watson and paid her, but refused to pay the trustee $1,884.46 for the benefit of said bank or the general depositors thereof, claiming they were entitled to set off the amount due the bank as against the deposit of $11,000.

It will be observed from the facts detailed above that, on the date of the failure of said bank, the insurance companies were not indebted to it in any sum. At that time the Central States Life Insurance Company was not either a debtor or creditor of the bank, and the Home Life Insurance Company was a creditor, but not a debtor of the bank. No liability existed under the insurance policy, and could not exist as long as John T. Watson continued to live. The law of set-off in this State between defunct banks and their creditors applies only to concurrent liabilities on the date of the insolvency of such bank. A contingent liability cannot be set off against an uncontingent liability. The claims to be set off must be mutual, certain and concurrent. U. S. Fidelity & Guaranty Co. v. Maxwell, 152 Ark. 64, 237 S. W. 708; Sloss v. Taylor, 182 Ark. 1031, 34 S. W. (2d) 231; Taylor v. Cox, 183 Ark. 1117, 40 S. W. (2d) 444.

The trial court allowed tlie set-off, and in doing so erred. The decree is therefore reversed, and the cause is remanded with directions to deny the set-off, and to allow appellant 12 per cent, penalty on $1,884.46 and an attorney’s fee of $200.


author: Kirby, J.

text:
    Washington Fidelity National Insurance Company v. Anderson.
    4-3106
    Opinion delivered October 9, 1933.

      George W. Emerson, for appellant.

      Harper E. Harb and Paul L. Barnard, for appellee.
   Kirby, J.

Appellee brought suit against appellant company on a sick and accident insurance policy to recover $500, penalty and attorney’s fee, on a policy issued to her husband, Ed Anderson, on September 22, 1930, alleging that Anderson died on October 3, 1930, from ptomaine poisoning as the result of having accidentally eaten some spoiled food a few days before.

The policy provides in the second paragraph of the first page that Anderson was insured from the date thereof (September 22, 1930) until 12 o’clock noon the first day of November, 1930, and for such further periods, etc.

The insured died October 3, 1930, which was after the date of issuance of the policy and before the date on which the face of the policy recites the next premium would be due.

The answer admitted the issuance of the policy; denied the other material allegations of the complaint, and pleaded special defenses that neither the insured nor the beneficiary had paid any premiums whatever on the policy, that no immediate notice in writing was given to the defendant at its home office in Chicago of the illness of the insured, and that no such notice was given at all as required by the policy; that no proofs of illness or death were made to the company; denied that death by accidental poisoning was covered by the policy or contract of insurance; and alleged that the* policy required a strict compliance with its terms so far as giving notice was concerned; denied all liability under the policy.

The policy provides in paragraph C for the payment of $500 for accidental death and in paragraph A insures for bodily injuries effected during the life of this policy solely through external, violent and accidental means. And in paragraph F it classifies injuries as follows: “(1) Injuries, fatal or non-fatal, which produce immediate, total and continuous disability from date of accident, or which make a visible contusion or wound on the exterior of the body. (2) Disability caused partly by injury and partly by disease shall be classified as disease and paid for as such. ’ ’

Appellee relies on the fact that the injuries which the insured, Ed Anderson, received produced immediate, total and continuous disability from the date of the accident, and in doing so should not be classed as a disease.

The court instructed the jury, giving over appellant’s objection its amended instruction No. '2. The jury returned a verdict against appellant, and judgment was rendered for the amount of the policy, penalty and $150 attorney’s fees to be taxed as costs, from which comes this appeal.

Appellant insists that the court erred in the giving and refusal of certain instructions, in the admission of the certificate of the State Health Department as to the cause of death of the insured, and that there was no liability under the policy which it alleged had been wrongfully delivered to the insured without the payment of the first premium.

It is admitted that the policy was delivered to the insured by appellant’s agent, although the agent reported that he did not receive the payment of the first premium, and the general agent testified also that such first premium had not been paid, still two witnesses testified that they were present when the policy was delivered, and that they saw the insured pay the money to the agent upon its delivery. The agent delivering the policy testified, as did also the general agent, that policies were sometimes delivered- without payment of the first premium by the insured, the agent taking a chance upon the collection of the premium. It is admitted, however, that the policy was delivered to the insured, and such delivery is prima facie evidence of the payment of the first premium, and further the insured’s mere possession thereof is prima facie evidence that the first premium has been paid. 32 C. J., § 355, p. 1204; Mutual Life Ins. Co. v. Parrish, 66 Ark. 612, 52 S. W. 438. Such prima facie case may be overcome, however, but it was not done here by the agent delivering the policy, who testified that the premium was not in fact paid, since two witnesses testified that they saw the insured pay the premium money when said policy was delivered. Neither does the testimony of the general agent, Mr. Naylor, overcome snch prima facie case, as he stated that the policy was delivered and the company took a chance on the collection where they were delivered on credit. The delivery of the policy without condition without exacting payment of the premium in cash raised the presumption that a short credit was intended. American Employers’ Liability Ins. Co. v. Fordyce, 62 Ark. 562, 36 S. W. 1051.

The presumption that the first premium was paid upon the policy is an ordinary presumption of fact and can he rebutted. The jury decides such questions of facts in the case, and the instruction No. 2, complained of, properly left this for determination by it, and, the jury having found against appellant on this point, its finding will not be disturbed here.

Appellant next insists, that the ptomaine poisoning from eating unsound food does not constitute a death solely by external, violent and accidental means within the meaning of the policy, and cites Martin v. Inter-State Business Men’s Acc. Ass’n, 187 Iowa 869, 174 N. W. 577, as authority on this point, but such case appears to be contrary to the weight of authority. It is stated in 5 Couch Enc. of Insurance Law, § 1141, p. 4003: “There are also numerous cases of death or disability incident to the partaking of food or drink and resulting either from poisoning or from disease. In the case of death or disability resulting from the mechanical action of food or drink, the cases are largely agreed that it was by accident or the result of accidental means. And the authorities agree that death directly from poisoning following the unintentional eating of bad but apparently wholesome food is effected by accident, or is the result of accidental means, unless causes of such a character are expressly excepted.” See also 1 C. J., § 78, p. 431, and note 14 thereto, and Vance on Insurance, § 232, p. 566.

It is contended here that under the provisions of the policy there must be a visible wound or contusion on the body in order to recover thereunder for accidental death, but paragraph F provides if the injury causes immediate, total and continuous disability, it is classed as ail accident by tbe policy, or if there is a wound or contusion, it is classed as an accident and not as a disease, etc. The insured here was shown to have gone to his lunch in a cafe across the street from where he stopped with the car in which he was riding with another man, who saw him eating in the cafe, and that he felt sick shortly and had to be taken home, was vomiting violently and almost continuously, and was continuously disabled from then until his death occurred, which was pronounced by the doctor as from the effects of ptomaine poisoning. This places his death within the provisions of the policy, without regard to whether there was any visible contusion or wound on the exterior of the body. The disjunctive conjunction “or” separates the sentence, and either of the two causes provided would be sufficient to bring the insured within the terms of the policy for accidental death, both not being required. U. S. Casualty Co. v. Griffis, 186 Ind. 126, 114 N. E. 83, L. R. A. 1917E, 485.

The testimony shows appellee notified the agent who delivered the policy, Collins, and talked with him about the death of the insured and the payment of the policy, and that he told her that Mr. Naylor was the agent of the company that paid the claims and to see him. ’ That she saw Mr. Naylor, and he denied that there was any liability on the part of the company to the insured, saying he had not been a member long enough. This was a, denial of liability and a waiver of written proof of loss, and there was no error in instruction No. 5, objected to, telling the jury that, if they found that defendant refused to pay anything on the policy for the reason that the premium had not been paid, then it could find that the company was estopped from objecting that the proofs of loss were not furnished in the proper time. Inter-Ocean Casualty Co. v. Copeland, 184 Ark. 648, 43 S. W. (2d) 65; Old American Ins. Co. v. Wexman, 160 Ark. 571, 255 S. W. 6.

Neither was error committed in allowing the introduction in testimony of the copy of the certificate of death of the insured recorded in the State Health Department. Such certificates are required to be made and filed in that office, and the statute provides that copies thereof duly certified should be received in evidence in any court of the State with like effect as the original thereof. Act 283 of 1921, p. 308; Castle’s Supp. 1927, § 4133a. See also Marsh v. Erwin, 155 Ark. 371, 244 S. W. 441; 22 C. J., § 914, p. 801.

It is finally insisted that the court erred in assessing’ the 12 per cent, penalty and $150 attorney’s fee. The plaintiff moved the court for an order assessing the statutory penalty and a reasonable attorney’s fee, and the record recites that the court, being well and sufficiently advised, doth grant said motion and doth fix $150 as a reasonable attorney’s fee, same to be taxed as costs. This court has concluded $100 would be a reasonable attorney’s fee under the circumstances, and that the judgment should be modified accordingly, reducing the amount to that sum, and, as modified, it will be affirmed.


author: Mehaffy, J.

text:
    Atlas Life Insurance Company v. Wells.
    4-3123
    Opinion delivered October 9, 1933.

      H. M. Barney, for appellant.

      James D. Head, for appellee.
   Mehaffy, J.

On July 9, 1921, the appellant, Atlas Life Insurance Company of Tulsa, Oklahoma, issued to the appellee, Billie D. Wells, its policy insuring the life of appellee for $5,000. The policy contained the following provisions:

“And the company agrees to pay to the insured fifty dollars monthly during the lifetime of the insured, if the insured becomes wholly and permanently disabled, before age 60, and to waive the payment of premiums thereafter becoming due, subject to all the terms and conditions contained in section A hereof:
‘ ‘ Section A. Permanent and Total Disability. After one full premium shall have been paid upon this policy and before default in the payment of any subsequent premium, if the insured shall furnish the company with due proof that he has since such payment and before having attained the age of sixty years become wholly disabled by bodily injuries or disease, not occasioned by military or naval service or participation in aeronautic or submarine expeditions or operations, and will be presumably thereby permanently, continuously and wholly prevented from engaging in any occupation or employment whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days, then,
“1. Waiver of Premium. Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on each anniversary waive payment of the premium for the ensuing insurance year. ’ ’
‘ ‘2. Life Income of Insured. Six months after the anniversary of the policy next succeeding the receipt of such proof, the company will begin to pay to the insured the monthly income stated on the first page of this policy, which income will be continued during the lifetime and continued disability of the insured. Interest on any indebtedness on this policy shall be deducted from each monthly income payment. The premiums so waived and the disability income so paid shall not be deducted from the amount payable at death nor shall they impair the loan or surrender values, if any, under this policy.”

The complaint in this suit was filed on August 18, 1932. It was alleged that on February 17, 1932, when the policy w&s in force and effect, and before appellee reached the age of sixty years, and after one full annual premium had. been paid thereon, and when there was no default in the payment of any subsequent premium due on said policy, appellee was wholly and permanently disabled by bodily injuries described in the complaint, and that by said injuries he was permanently, continuously and wholly prevented from engaging in any occupation whatsoever for remuneration, profit or gain, and such disability has existed more than sixty days; that the injuries are permanent and incurable. It was alleged that due proof of loss was furnished the appellant on July 9, 1932.

Appellant filed a demurrer alleging that the complaint failed to state a cause of action, and that the complaint shows upon its face that no cause of action has accrued, and also that the complaint shows upon its face that suit has been prematurely brought. The demurrer was overruled, and appellant excepted.

The appellant then filed answer denying the material allegations in the complaint, and pleading the provisions of the policy above set out. The appellant also filed a motion to dismiss because said suit had been prematurely brought.

There was a verdict and judgment in favor of appellee for $50 per month from the date of injury, with six per cent, interest, penalty ánd attorney’s fees. A motion for new trial was filed and overruled, and the case is here on appeal.

The evidence as to appellee’s total disability being in conflict, it was a question of fact for the jury, and the jury’s verdict was against the appellant. There was substantial evidence to support the verdict. The jury’s finding of fact on conflicting evidence, if there is any substantial evidence to support the verdict, will not be disturbed by this court.

In numerous cases decided by this court, we have discussed the question of total disability and reviewed the authorities, and we do not deem it necessary to review them here. Among the cases discussing this question and reviewing the authorities are: Missouri State Life Ins. Co. v. Holt, 186 Ark. 672, 55 S. W. (2d) 788; Mutual Benefit Health & Acc. Ass’n v. Bird, 185 Ark. 445, 47 S. W. (2d) 812; Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Missouri State Life Ins. Co. v. Johnson, 186 Ark. 518, 54 S. W. (2d) 407; Guardian Life Ins. Co. v. Johnson, 186 Ark. 1019, 57 S. W. (2d) 555; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; Mutual Life Ins. Co. v. Marsh, 186 Ark. 61, 56 S. W. (2d) 433.

Our conclusion is that there was ample evidence to support the finding of the jury as to total disability.

This is not a suit for a breach of contract, but it is a suit based on the contract. It is insisted by the appellant that the complaint shows on its face that it was prematurely brought.

The complaint was filed August 13, 1932, and appellee based his cause of action on the policy, alleging that on February 17, 1932, he received the injuries that rendered him' permanently, continuously and wholly disabled. Appellee alleged that on July 9, 1932, he furnished the appellant proof of loss. It will be observed that the proof of loss was furnished on July 9, and the suit was begun August 13, 1932. The policy provides: “Six months after the anniversary of the policy next succeeding the receipt of such proof, the company will begin to pay to the insured the monthly income stated on the first page of this policy, which income will be continued during the lifetime and continued disability of the insured. Interest on any indebtedness on this policy shall be deducted from each monthly income payment. The premiums so waived and the disability income so paid shall not be deducted from the amount payable at death nor shall they impair the loan or surrender values, if any, under this policy.”

The promise of the insurance company was to pay, beginning six months after the anniversary of the policy next succeeding the receipt of proof. No cause of action therefore accrued until the six months expired, and this suit was begun less than two months after the proof of loss was made. It was therefore prematurely brought.

“By the weight of authority, it is ground for abatement, that the action was prematurely brought, even though the right of action has matured before trial; as, in most jurisdictions, where an action is brought before maturity on a note or other debt; where the time for payment of a note or other debt has been extended by agreement, and an action is brought before expiration of the period of the extension; where an action is brought before the happening of an event upon the happening of which the right to commence the action is to accrue; and in many other like eases.” 1 C. J., 107, 108.
“Appellee raised in the pleading her objection that the action was prematurely brought; and, if the evidence sustained the plea, the action should have been abated, even though the right of action had matured before the trial.” Jones v. Dyer, 92 Ark. 460, 123 S. W. 757; Ferguson v. Carr, 85 Ark. 246, 107 S. W. 1177; Rogers v. Wise, 106 Ark. 310, 153 S. W. 253.
“Where the policy provided that the-loss should not be payable until 60 days after satisfactory proofs of loss were received, and the company objected to proofs of loss for specific valid reasons, and the insured furnished supplemental proofs, a suit brought 49 days after the supplemental proofs were furnished was premature.” Cooley’s Briefs on Insurance, vol. 7, p. 6782; Marino v. Hartford Fire Ins. Co., 227 Penn. 220, 75 Atl. 1037.

It is contended by the appellant that the policy had lapsed, and that therefore no cause of action existed. There was no premium due either at the time of the injury or at the time proof of loss was made.

Liability attached when the disability occurred and proof of loss was made. Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 52 S. Ct. 230; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335.

The rights of the. parties had become fixed at a time no premium was due. While the cause of action had not accrued, yet the liability existed, and all premiums that became due after the time fixed for payment under the disability clause in the policy are, by the express terms of the policy, waived, and are not to be. deducted in any settlement. Premiums that became due after the liability attached, but before the time fixed in the policy for a waiver of the premiums, are not waived, and, of course, are to he deducted, if they have not been paid.

Our conclusion is that the only error in the case is that it was prematurely brought, and for that reason it must be reversed and remanded with directions to grant the motion to abate and dismiss the case without prejudice.

Smith and McHaney, JJ., concur.


text:
    New York Life Insurance Company v. Farrell.
    4-3128.
    Opinion delivered October 9, 1933.

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

      W. W. Sharp and Lee & Moore, for appellee.
   Mehaffy, J.

In June, 1919, the New York Life Insurance Company issued to the appellee its policy No. 6,513,376 in the amount of $5,000, and also its policy No. 6,513,377 for the same amount, and each policy provided that, should appellee become totally and permanently disabled before reaching the age of sixty years, it would waive the payment of premiums thereafter falling due, and pay to the appellee one-tenth of the face amount of said policies annually during his lifetime. This suit is brought to recover under the total disability clause of these policies.

It was alleged in the complaint that in September, 1922, appellee became totally and permanently disabled. Suit was for the sum of $3,000 on each policy.

The appellant answered denying the allegations of the complaint, and pleading the following provisions of the policies as a defense: “Whenever the company receives due proof, before default in the payment of premiums, that the insured, before the anniversary of the policy on which the insured’s age at nearest birthday is 60 years and subsequent to the delivery hereof, has become wholly disabled by bodily injury or disease, so that he is and will be, presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days, the permanent loss of the sight of both eyes, or the severance of both hands or of both feet, or of one entire hand and one entire foot, to be considered a total and permanent disability without prejudice to other causes of disability, then

“1. Waiver of Premium. — Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on each anniversary waive payment of the premium for the ensuing insurance year, and, in any settlement of the policy, the company will not deduct the premiums so waived. The loan and surrender values provided for under sections 3 and 4 shall be calculated on the basis employed in said sections, the same as if the waived premiums had been paid as they became due.
“2. Life Income to Insured. — One year after the anniversary of the policy next succeeding the receipt of such proof, the company will pay the insured a sum equal to one-tenth of the face of the policy and a like sum on each anniversary thereafter during the life time and continued disability of the insured. Such income payments shall not reduce the sum payable in any settlement of the policy. The policy must be returned to the company for indorsement thereon of each income payment. If there be any indebtedness on the policy, the interest thereon may be deducted from each income payment. ’ ’

The appellant also stated that appellee did not claim benefits under said policies, and did not make proof of his alleged disability until November, 1931.

The court, on its own motion, for the purpose of trial only, consolidated the two eases, a separate suit having been brought on each policy. After the court’s order consolidating the cases, appellant filed petition and bond for removal to the federal court, which petition was overruled, and appellant excepted.

There was a trial by jury and a verdict and judgment in each case for $3,000. Motion for a new trial was filed and overruled, and the case is here on appeal.

Appellant’s first contention is that the court erred in overruling its petition for removal to the federal court. There were two separate suits, each one for $3,000. The court, without the suggestion of either party, but on its own motion, for the purpose of trial only, consolidated the two cases. That meant nothing more than the taking of evidence in the two cases at the same time. There was no consolidation for any other purpose, and there was a separate verdict, and separate judgment in each case.

This question was settled against the contention of the appellant in the case of St. L. S. F. R. Co. v. Oxford, 174 Ark. 966, 298 S. W. 207. Appellant calls attention, however, to the case of Marshall v. Holmes, 141 U. S. 589, 12 S. Ct. 62. That case has no application, because it was a single suit by the plaintiff against the defendant to set aside several judgments, and to restrain parties from executing the judgments. Neither judgment was for a sufficient amount to remove it to the Federal court, but the aggregate was more than $3,000. It was a single suit charging that each and all the judgments were obtained by false testimony and forged documents, and it was in fact a single suit involving more than $3,000.

Appellant also calls attention to the case of Yates v. Whyel Coal Co., 221 Fed. 603. In that case the court said: “The requisite jurisdictional amount is controlled, not by State legislation as defendant would have it appear, but by the federal law, and is determined by the aggregate sum for which judgment is sought, and not by the amount named in each cause of action.” The plaintiff in that case had pleaded as a single cause of action the entire loss claimed to have been sustained for the several months covered by the contract. While there were several claims against the company, they were all combined in one suit, and the amount in controversy was, of course, the amount claimed in the suit.

The next case relied on by the appellant is McDaniel v. Traylor, 196 U. S. 415, 25 S. Ct. 369. This was also a suit in Federal court to set aside, as fraudulently obtained, certain judgments which aggregated $3,000, but no one of the judgments was for that amount. Here there was a single suit, and the amount in controversy exceeded $3,000.

The next and only other case relied on by appellants is Field v. Barber Asphalt Co., 194 U. S. 618, 24 S. Ct. 784. In that case the court said: “The bill of complaint contained allegations sufficient to make a case of alleged violation of constitutional rights.” There is nothing in any of the cases relied on by appellant that would justify or authorize a removal to the Federal court.

It is next contended by the appellant that the court erred in refusing to direct a verdict in its favor. It contends that this request should have been granted on account of appellee’s unreasonable delay in notifying the appellant of his claim for the total and permanent disability benefits. Numerous authorities are cited, and it is earnestly contended that the delay made it impossible for appellant to make investigation, and determine whether appellee was totally and permanently disabled. None of these authorities are applicable here because the policy itself expressly provides that commencing with the anniversary of the policy next succeeding the receipt of such proof the company will waive, etc. Since there can be no recovery except for claims arising after the proof of loss, whenever proof of loss is made, the company can then investigate, and, under the terms of the policy, it becomes immaterial to determine appellee’s condition immediately after the injury, if he is in fact disabled when the proof of loss is made.

This court has frequently decided what constitutes total and permanent disability. Among the cases discussing this question are the following: Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Missouri State Life Ins. Co. v. Johnson, 186 Ark. 519; Guardian Life Ins. Co. v. Johnson, 186 Ark. 1019; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Travelers’ Pro. Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; Mutual Life Ins. Co. v. Marsh, 186 Ark. 61, 56 S. W. (2d) 433.

As to whether the party is totally and permanently disabled is a question of fact for the jury, and the jury decided this issue against the appellant, and there was ample evidence to support their verdict.

It is next contended by appellant that the verdicts rendered by the jury were excessive. "We agree with the appellant in this contention.

The court gave instruction No. 2 requested by the appellee, which reads as follows: “If you find from a preponderance of the testimony that the plaintiff became totally and permanently disabled within the meaning of the policy before he reached the age of sixty years, then he would be entitled to recover the sum of $500 per year, and the annual premium paid, on each of the policies, for that period of time which you find he was disabled, not to exceed the sum of $3,000 on each policy.”

This instruction was erroneous and should not have been given. The provisions of the policies are set out above, and each one provides that commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will waive payment, etc.

It is perfectly plain from this provision of the policy, that it waives premiums only commencing with the anniversary of the policy next after proof of loss is made, and it will be observed from the second paragraph above quoted from the policy that one year after the anniversary of the policy next succeeding proof of loss the company will pay. It was therefore improper to instruct the jury that the payments continued throughout the time of appellee’s disability. The provisions of the policy providing for payment are plain and unambiguous. The liability attached when the disability occurred and proof of loss was made. The company, however, did not promise to pay from the time the disability occurred, but from the time fixed in the policy itself.

In construing the provisions of a policy similar to the policies involved here, the Supreme Court of the United States said: “Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof. The provision to that effect is wholly free from the ambiguity which the court thought existed in the Marshall policy. It is true that where the terms of a policy are of doubtful meaning, that construction most favorable to the insured will be adopted. This canon of construction is both reasonable and just, since the words of the policy are chosen by the insurance company; but it furnished no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings.” Bergholm, v. Peoria Life Ins. Co., 284 U. S. 489, 52 S. Ct. 230.

Appellee calls attention to numerous cases where a recovery was permitted from the date of the disability, but these cases were suits for breach of contract. The case at bar, however, is not a suit for breach of contract, but a suit on the policy, and the policy expressly provides when payments shall begin. The court therefore erred in giving the instruction above quoted, and for this error the ease must be reversed.

All the questions of fact had been determined against the appellant, and there is nothing to be done but to determine the amount that appellee is entitled to recover under the contract.

The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment for the amount found to be due according to the terms of the policies as herein construed.


author: McHaney, J.

text:
    River Valley Gas Company v. Improvement Districts Nos. 1 and 2.
    4-3121
    Opinion delivered October 9, 1933.

      Harry Neelly and Hardin & Barton, for appellant.

      Cochran & Arnett and Robert J. White, for appellee.
   McHaney, J.

This is an appeal from judgments in favor of appellees against appellant for $2,400 and $2,150, respectively. Appellees are street improvement districts in the city of Paris, Arkansas. Each had paved certain streets in said city. After the paving was completed in each district a.franchise was granted by the city of Paris to appellant’s assignor, and appellant through its contractor constructed a gas distributing system in said city under said franchise. In doing so it made a number of cuts in the pavement in the streets in each district which were repaired and placed hack in as good condition as when originally constructed. These were separate suits to recover the penalty provided in § 5736, Crawford & Moses’ Digest, which reads as follows: “Before any street is paved, the commissioners of the improvement district may give notice to waterworks companies, gas companies and other public service corporations, of their intention to pave such street, and shall in such notice fix a reasonable time in which such public service corporations shall make excavations, for the purpose of laying down the service pipes and conduits to the property line; and thereafter it shall be unlawful for such public service corporations, or for any individual to make any excavations in said streets, except upon condition of restoring said streets to their condition before such excavation is made, and paying to the commissioners of said district, or, in case of their discharge, to the city or town, twenty-five dollars for each excavation. The said sum of twenty-five dollars shall be paid before the work of excavation is begun, and, if such work of excavation is begun without payment thereof, the commissioners of the district, or, in case of their discharge, the city or town, may recover the sum of fifty dollars of the party undertaking such excavations, together with all costs and a reasonable attorney’s fee to be taxed by the court.”

We think this statute has no application to the facts in this ease. The object of this statute as clearly indicated by its express language is to give opportunity to utility companies operating in any city to lay service pipes and conduits before constructing the pavement. Manifestly a utility company not operating in the citv at the time of the construction of the pavement could not be notified of the- laying thereof, and could not lay down any service pipes or conduits before the pavement was constructed. The proof in this case shows that the appellant was not even in existence at the time the streets were laid, and the franchise granted its assignor by the city of Paris was subsequent thereto. The statute is penal in its nature, and must be strictly construed. The penalties imposed by it must be limited to those that were in existence at the time, and who received notice of the construction of the pavement, and, after having received such notice and having been given a reasonable time in which to make the excavations to lay their service pipes and conduits, ignored such notice and neglected and failed to avail themselves of the opportunity thus given to make their improvements before the laying of the pavement.

The court therefore erred in granting a directed verdict in favor of appellees, and in refusing to grant appellant’s request for a directed verdict in its favor at the conclusion of the testimony for appellees. The judgment will be reversed, and the cause dismissed.


text:
    Mutual Life Insurance Company v. Wilcoxon.
    4-3129
    Opinion delivered October 9, 1933.

      Frederick L. Allen and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Fred A. Isgrig and Harry Robinson, for appellee.
   McHaney, J.

This is a suit by appellee as beneficiary of a life insurance policy issued to her husband, Jesse R. Wilcoxon, against appellant, in which it is alleged that the insured disappeared from Corpus Christi, Texas, on June 11, 1931, “under such circumstances as to warrant the conclusion that he is dead.” Mr. Wilcoxon formerly resided at Hamburg, Arkansas, and during the boom period he accumulated quite a substantial fortune, selling out his interests in Arkansas, and removing from thence to the Eio Grande Valley in Texas, where he made investments in real estate. For a time after removing to Texas he seemed to prosper, but during the slump in values in 1929 and 1930 he became bankrupt. Not only did he lose his money, but there were large deficiency judgments against him. After the loss of his property he engaged in other business in Harlingen, Texas, without much success, and in June, 1931, he obtained employment as a traveling salesman for a milling company in Oklahoma, and, in order to be near the center of his territory, on June 10, 1931, he and appellee removed to Corpus Christi, Texas, and on the next day he disappeared and has not been heard from since that time.

This suit was brought in April, 1932, and the trial occurred in November following, about a year and a half after the date of his disappearance. The case was tried before a jury which resulted in a verdict and judgment against appellant for the amount of the policy.

For a reversal of the judgment against it, appellant first urges that the evidence was insufficient to support the verdict and judgment, and that the court erred in refusing to direct a verdict in its favor. We cannot sustain this assignment. Of course, there is no presumption that Mr. Wilcoxon is dead either under our statute (§ 4111, Crawford & Moses’ Digest) or under the common law. Appellee based her action upon proof of death, independent of any presumption. The proof in this case is wholly circumstantial and is somewhat in conflict as to whether he has been seen since his disappearance on June 11, 1931. Briefly stated, the evidence in this regard is as follows: All the witnesses agree that Mr. Wilcoxon was an honest man and a good citizen; that he was highly esteemed by, held the confidence and the good will of, all who knew him; that he had been prosperous in business, accumulating a substantial fortune in cash, all of which had been lost during the depression and consequent slump in values; that he was a married man, living happily with his wife, 'the appellee, to whom he was very much attached, as well as his home, his friends and possessions; that he was a person of good habits and fine traits of character; that, after he lost his fortune, his health was impaired, became nervous, low spirited, and of changed appearance; that he had disappeared once or twice before for short periods of time, and upon his return he was ill and went to bed. He was shown to have bought poison from one drug store and capsules from another, his wife finding two capsules apparently filled with poison in his pocket; that the day before his disappearance his two automobiles were taken away from him by his creditors, leaving him nothing in which to make his territory in the new position he had obtained, and that upon the next day he disappeared. Upon his failure to return, his wife notified the police officials at Corpus Christi, who assisted her in a thorough search at that time. Later, she had 800 posters made giving a description of him as well as printing his picture thereon, and these were widely posted and scattered throughout the State of Texas, being sent to each sheriff in the State of Texas as well as immigration officials on the border between Texas and Mexico.- She wrote appellant and other insurance companies who had issued policies on the life of her husband notifying them of her husband’s disappearance. She furnished appellant and its investigator with all the information she had, giving it the names of his relatives and their post office addresses. She furnished them with a picture and a specimen of his handwriting and informed the company of every rumor she had heard regarding her husband’s existence.

Appellant introduced the testimony of three witnesses tending to show that they had seen Mr. Wilcoxon shortly after the date of his disappearance. The court submitted the question to the jury, and by its verdict it has found that Mr. Wilcoxon is dead. We think the circumstances testified to were sufficient to take the case to the jury.

The facts and. circumstances in this case are quite similar to those in Tisdale v. Conn. Mutual Life Ins. Co., 26 Iowa 170, 96 Am. Dec. 136. In that case the trial court had instructed the jury that the death of the missing person could not be presumed from an absence of less than seven years, except upon evidence of exposure to danger which probably resulted in death. The Supreme Court of Iowa held the instruction erroneous and said: “Any facts or circumstances relating to the character, habits, condition, affections, attachments, prosperity and objects in life, which easily control the conduct of men, and are the motives of their actions, are competent evidence from which may be inferred the death of one absent and unheard from, whatever has been the duration of such absence.”

We therefore hold that the evidence in this case was sufficient to take the case to the jury, and to justify it in finding that Mr. Wilcoxon is dead.

It is finally argued that the court erred in refusing to give appellant’s requested instructions Nos. 8 and 8-A. Instruction No. 8 follows: “In attempting to determine whether or not the said Jesse R. Wilcoxon committed suicide, you would be authorized to take into consideration all of the proved facts and circumstances which have been testified to in this case. Before you would be justified in finding that he did commit suicide, there must be evidence from which a conclusion would be reasonable and probable, and not merely speculative or conjectural. If you find from a consideration of all the evidence in this case that it is merely speculative or conjectural as to whether the said Jesse Wilcoxon committed suicide, your verdict should be for the defendant.” The concluding sentence in that instruction makes it erroneous, as it requires the jury to find for appellant if it finds that Wilcoxon did not commit suicide, whereas appellant would be liable if it found him to be dead either from natural causes or by murder. Instruction No. 8-A, relating to death by murder, is erroneous in the same respect. The two instructions are identical with the exception that death by murder is substituted for death by suicide. The question for the jury to determine was whether Wilcoxon was dead. If dead, then the manner of his death became immaterial. The fact that evidence was introduced tending to show the probability of suicide did not justify the instruction as asked. The court correctly refused said instructions.

No error appearing, the judgment is affirmed.


author: Johnson, C. J.,

text:
    French v. Browning.
    4-3134
    Opinion delivered October 16, 1933.

      O. T. Ward, for appellant.

      Wm. F. Kirsch and Maurice Cathey, for appellee.
   Johnson, C. J.,

(after stating the facts). But one question is presented on this appeal for determination, namely, was the assignment of the National Cottonseed Products Corporation mortgage by French to Burns fraudulent and void?

The chancery court of Clay County found that his assignment was fraudulent and void, and this judgment should be affirmed, unless the chancellor’s findings are contrary to the clear preponderance of the testimony. Mente & Company, Inc. v. Westbrook, 181 Ark. 96, 24 S. W. (2d) 976.

This court has held that the intent to defraud creditors may be presumed from an act necessarily resulting in such hinderance. Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. (2d) 462.

Again, this court said in the last ease cited that the testimony of a party to an action who is interested in the result will not be regarded as undisputed in determining the legal significance of the evidence.

It would serve no useful purpose to detail the testimony presented to the chancellor. It suffices to give only a short statement thereof. French testified that Bums paid him more than $2,000 in cash as consideration for the assignment. Burns testified to practically the same statement of facts. Other testimony, however, shows that Burns was a renter and had been for a number of years ; that he owned no real estate and but little personal property, that at numerous times during the past several years he was forced to borrow very small and insignificant sums of money from the banks in the vicinity; that he had been a renter on French’s farm for a number of years. On the other hand, the testimony shows that French was substantial in his dealings; that he carried very substantial balances in the banks in that vicinity; that he was a man of some means and no necessity appears for his negotiations with Burns. French and Burns were examined and cross-examined time and again in the. presence of the court, and the contradictions and inconsisténcies which appear from their testimony were entirely sufficient to warrant the trial court in disbelieving their testimony.

After carefully reviewing the transcript of the testimony, we cannot say that the chancellor’s findings of fact were contrary to the clear preponderance of the testimony.

Decree affirmed.


author: Smith, J.

text:
    Nichols v. State.
    Crim. 3854
    Opinion delivered October 16, 1933.

      Isaac McClellan, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Smith, J.

This appeal is from the judgment of the Grant Circuit Court sentencing appellant to a term of one year in the penitentiary, upon a conviction for involuntary manslaughter, alleged to have been committed by striking and running over one Grady Porter with an automobile.

One of the errors assigned for the reversal of the judgment is that the testimony is not sufficient to sustain the verdict. This assignment may be disposed of by saying that the testimony shows that appellant drove his car rapidly down a street in the town of Sheridan, striking Porter, who was walking with Albert Roberts along the edge of the street. There does not appear to have been a sidewalk at the place of collision. Roberts testified: “I was about two or three feet from the edge of the street, and he (Porter) was on my left side, about two or three feet further out towards the center of the street.” He further testified that he did not know the car was approaching until it struck Porter, as no signal of its approach was given. The car knocked Porter eighteen or twenty feet, and, without diminution of speed, ran over him and killed him. After running over Porter, the car was driven down the street a few hundred yards further, when it ran into a ditch and was wrecked. Appellant testified that he knew nothing about striking Porter or wrecking the car until the morning after, when this information was communicated to him in the jail where he had been confined. The testimony clearly shows that appellant was helplessly drunk. It may be said therefore that the testimony sufficiently sustains the verdict.

It is assigned as error that the grand jury which returned the indictment had not been impaneled as provided by law, and this is the most serious question in the case. It appears that the court convened on February 20th, at which time the grand jury was impaneled, and that the court, after being continuously in session until February 28th, adjourned on that day to May 8th. On February 22d the following order was entered in regard to the grand jury:

“On the 22d day of February, 1933, after serving three days, the grand jury made a report that they had finished their work and desired to be discharged.
“ ‘And after hearing said report, it is by the court considered, ordered and adjudged, that this report be and the same is accepted, and the grand jury be and is hereby discharged from further duty, subject, however, to the call of the court at any time.’ Ordered that court adjourn until tomorrow morning.”

During the interval between the regular and the adjourned sessions of the court, to-wit, on April 29, 1933, the killing of Porter occurred in the manner stated above. When the court convened on May 8th pursuant to adjournment, the presiding judge directed the sheriff to summon a special grand jury, and, upon appellant’s arraignment, he questioned the authority of the special grand jury to return the indictment. His motion to quash the indictment was overruled.

We think there was no error in this ruling. It is true, of course, as appellant insists, that there cannot be two grand juries, each having power to investigate violations of the law and to return indictments therefor. But upon the finding that the regular grand jury “had finished their work and desired to be discharged,” it was ordered that “the grand jury be and is hereby discharged from further duty, subject, however, to the call of the court at any time.” No such call was made, and the court, interpreting its own order, treated it as a final discharge of the grand jury. The regular grand jury having been discharged, the special grand jury was summoned and impaneled pursuant to express statutory authprity. Section 3004, Crawford & Moses’ Digest.

Objection was made to the introduction of an ordinance of the town of Sheridan fixing a maximum speed limit of fifteen miles pgr hour while driving upon the streets thereof; hut we think no error was committed in permitting this ordinance to be read in evidence.

The ordinance was not conclusive that appellant was doing a lawful act in an improper manner, but it was evidence of that fact. In the case of Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, we considered the effect of testimony showing the infliction of an injury by one who, at the time of the injury, was violating a city ordinance, and, after reviewing many cases there cited, we said that the rule supported by the weight of authority and the better reason was that proof of the violation of an ordinance may be shown as tending to establish the allegation that the injury was occasioned by negligence. So here, the existence of the ordinance and the proof of its violation were facts to be considered in determining whether appellant was engaged “in the prosecution of a lawful act done without due caution and circumspection.” Section 2356, Crawford & Moses’ Digest.

What we have said disposes of the objections made to instructions numbered 7 and 8, which present this view of the law and were given over, appellant’s objections.

Appellant asked instructions numbered 1 and 4, which the court refused to give. These instructions are as follows:

“No. 1. You are instructed that if you find from the evidence in this case, beyond a reasonable doubt, that the defendant was so intoxicated at the time he struck the deceased with an automobile that he did not know he had hit a man, and at the time .was on the right side of the road, then he would not be guilty of negligence or carelessness in the operation of the car, unless you further find beyond a reasonable doubt that he did it wilfully and without due regard for the lives of others, and you will so find.”
“No. 4. You are instructed that drunkenness is no excuse for crime, yet if a person is so intoxicated to lose his faculties, both in body and mind, and not comprehend what he was doing, then he would in that case have no wilful intent to commit crime, and, if you believe beyond a reasonable doubt from all the evidence, that the defendant was so drunk that he did not know or have control of himself and that the accident which resulted in the death of Grady Porter was unavoidable, then you will find the defendant not guilty.”

It will be observed that these instructions, if given, would have required a finding that appellant had acted wilfully, whereas this is not required to constitute the offense of involuntary manslaughter. It was said, in the case of Bennett v. State, 161 Ark. 501, 257 S. W. 372, that: “Involuntary manslaughter is, as its name implies, an involuntary killing done without any intent to kill, but in the commission of some unlawful act, or in the improper performance of some lawful act. Tharp v. State, 99 Ark. 188, 137 S. W. 1097; Trotter v. State, 148 Ark. 466, 231 S. W. 177. See also White v. State, 164 Ark. 517, 262 S. W. 338.

No error appearing, the judgment must be affirmed, and it is so ordered.


text:
    State ex rel. Lee v. McMillin.
    4-3135
    Opinion delivered October 16, 1933.

      A. D. Whitehead, for appellant.

      John C. Sheffield, for appellee.
   Smith, J.

Appellant filed a petition in the Phillips Chancery Court for a writ of habeas corpus to recover the possession and custody of his minor child, Betty Joe Lee. The petitioner alleged that a similar proceeding had been had in the chancery court of Davidson County, Tennessee, wherein the custody of the child had been awarded to him, but that its custodian, the child’s aunt, Mrs. Maybelle McMillin, had disobeyed the court’s order and had brought the child into this State. Duly authenticated copies of the proceedings of the Davidson County, Tennessee, Chancery Court were exhibited with the petition. Pending the hearing* of this petition Mrs. McMillin, the respondent, executed the following bond:

“BOND
“We acknowledge ourselves indebted to J. C. Barlow, sheriff of Phillips County, Arkansas, in the sum of $500, conditioned as follows, to-wit:
“Whereas, Hon. A. L. Hutchins, chancellor, has directed that the minor, Betty Joe Lee, be presented before the chancellor at Forrest City, Arkansas, at 10:00 a. m., June 4, 1931. Now, if the said Maybelle McMillin shall present the said Betty Joe before the chancellor at the time and place aforesaid, for the further orders of the said court, then this obligation shall be null and void, otherwise to remain in full force and effect.
“Witness our hands this the 3d day of June, 1931.
(Signed) “Maybelle McMillin,
(Signed) “Pat Keeshan,
(Signed) “W. T. Greer.”

The Phillips Chancery Court entered an interlocutory decree on June 4, 1931, which directed that the custody of the child be delivered to petitioner, its father, on condition that he execute a bond in the sum of $300, conditioned that he present the child at the courthouse in Helena at 9 a. m. Monday, July 27, 1931, for final orders in the case. This bond was never executed and the child was never delivered to him.

A decree was entered July 27, 1931, which contained the following recitals: Petitioner’s wife, the mother of the child, died September 9, 1929, at which time petitioner turned the child over to its aunt, his wife’s sister, with the understanding that she would return the child to him when he was prepared to take care of it. The petitioner made monthly contributions to the support of the child, and on October 16,1930, married again, and petitioner and this wife, who are found to be proper persons to have possession of the child, desire its custody.

It was decreed that the custody of the child be awarded to its father, conditioned that the respondent be permitted to visit the child at such times as are most convenient to her. The clerk of the court was ordered to issue a writ of possession commanding the sheriff to deliver the child to its father. This order was not obeyed, and a motion was filed in the name of the State, on the relation of Lee, for judgment on the bond set out above.

Upon this motion a decree was entered on November 23, 1931, which contains the following recitals:

“It appearing to the satisfaction of the court that the said respondent and her cognizors aforesaid have heretofore, to-wit: On the 4th day of June, A. D. 1931, made default in carrying out the terms of said bond and the orders of the court on the 4th day of June, 1931, wherein the court ordered the respondent, Mrs. Maybelle McMillin, to retain said child in her possession until noon, June 5, 1931, with instructions to have said child examined by two reputable physicians, namely, Dr. W. C. Russworm and Dr. W. H. Orr, to determine whether or not said child, Betty Joe Lee, was in fit physical condition to make the change to Akron, Ohio, with her father, the relator, William E. Lee, and in case said physicians found said child to be in physical condition to make said journey, then the court commanded the respondent to deliver said child to the relator on or before noon of June 5, 1931. The court further finds that on the afternoon of June 4th, or the morning of June 5th, the respondent disappeared beyond the borders of this State with said child in disobedience and contrary to the orders of this court. The court, being well and sufficiently advised as to the law and facts in this case, doth find that the respondent and her bondsmen have made default in carrying out the orders of the court and the terms of said bond, and said bond is by the court forfeited.”

Upon this finding it was ordered that “the State of Arkansas do have and recover of and from the said Mrs. Maybelle McMillin, W. T. Greer and Pat Keeshan the sum of $500, the penalty of said cognizance, and that a writ of scire facias issue requiring the said Mrs. Maybelle McMillin, W. T. Greer, and Pat Keeshan to appear at the bar of this court on January 21, 1932, at 9 o’clock a. m., and show cause, if any they can or have, why a final judgment should not be entered ag'ainst them. ’ ’

Process issued as ordered upon this decree, and the respondents filed a special demurrer and a response. On February 15, 1933, the court rendered a final decree, from which is this appeal. The decree recites that: “This cause is submitted to the court on the writ of scire facias issued out of this court on the 28th day of November, 1931, the. demurrer to the scire facias herein, the special demurrer to the said scire facias, and the response to the scire facias served on respondents on November 28, 1931, together with argument of counsel, and the court, being well and sufficiently advised in the premises, finds that the complaint of the plaintiffs should be dismissed.”

It was decreed that “the scire facias issued out of this court on the 28th day of November, 1931, is hereby quashed and that the decree forfeiting the said bond, dated November 23,1931, is set aside and held for naught, and that the court is without equity to enforce said decree and the terms of said bond.”

The recital that the court is without equity to enforce said decree is obviously a clerical misprision, the correct reading being, no doubt, that the court was without authority or jurisdiction to enforce the terms of the bond.

The respondents insist that this decree should be affirmed for the. reason that the question for decision is a mixed one of law and fact, and that, as the record contains only the pleadings without any testimony, it must be conclusively presumed that testimony was offered which supported the action of the court.

We do not concur in this view for two reasons: (a) That the cause, was in fact heard upon the pleadings only, which are in the record before us, together with the argument of counsel; and (bj however heard, the decree was based upon -the finding that the court was without authority or jurisdiction to enforce the bond; and we do not concur in this statement of the law. In our opinion, the chancery court had the jurisdiction to determine whether there was liability upon the bond which should be enforced.

The practice is not unusual in habeas corpus cases involving the custody of children to require the custodian to execute a bond conditioned that the child be held subject to the orders and disposition of the court, the execution of the bond being made the condition upon which the custody of the child may be retained. Willis v. Bell, 86 Ark. 473, 111 S. W. 808; Andrews v. Andrews, 117 Ark. 90, 173 S. W. 850.

Having the jurisdiction to require the execution of such a bond, the court necessarily had the jurisdiction to enforce it in case of a breach thereof.

The decree of. the court below will therefore be reversed, and the cause will be remanded, with directions to determine whether final judgment should be rendered against the principal in the bond and the sureties therein.


text:
    Missouri Pacific Railroad Company v. Hancock.
    4-3108
    Opinion delivered October 16, 1933.

      Thos. B. Pryor and W. L. Curtis, for appellant.

      Thomas P. Holt and D. H. Howell, for appellee.
   Humphreys, J.

These cases were consolidated for the purpose of trial with the result that appellee Hancock recovered judgment for $250 against appellant and appellees Buchanans recovered $500 for the Buchanan estate, from which is this appeal.

The testimony in the cases was sufficient to warrant the jury in finding that appellant knew that Archie Hancock, who was injured, and his companion, Willis Buchanan, who was killed in a train wreck near Van Burén, were in a box car on the train without permission; and in finding that the train crew or some of them knew that a hot box developed on one of the trucks of a car near the one the boys were riding- in, and that the crew knew that it was very dangerous to operate a train with a hot box, and contrary to the rules of appellant to do so.

Instancing the sufficiency of the testimony to warrant the jury in so finding, reference is made to that part of the record which reflects that a brakeman discovered the boys in the car and talked to them concerning the movement of the train and when it would arrive in Van Burén; and to that part of the record which reflects that signals were given by a number of persons that the train had a hot box and the signal back from one of the train crew, and the stop signal which was given by the depot agent at Alma. This testimony warranted a submission of the cause to the jury under the doctrine of discovered peril. That doctrine is to the effect that a duty under the law rests upon the railroad company to use ordinary care not to injure even a trespasser when his peril is discovered or known.

All the instructions given to the jury correctly defined this doctrine except No. 10 given at the request of appellee.. This instruction imposed the duty upon appellant to use ordinary care to prevent the injury if its agent ‘‘should have known of said burning hot box.” This was a misstatement of the law of discovered peril and constituted reversible error.

On account of the error indicated, the judgments are reversed, and the causes are remanded for a new trial.

McHaney and Butler, JJ., agree that the case should be reversed, but are of the opinion it should be dismissed, as the discovered peril doctrine has no application to the facts in this case.


author: Kirby, J.,

text:
    Lumpkin v. Askins.
    4-3090
    Opinion delivered October 16, 1933.

      Edwin W. Pickthorne and Will G. Akers, for appellant.

      Walter L. Pope, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that the chancellor erred in decreeing a restoration of the will and also in confirming the title of Mrs. Williams to the property given her by the testator during his lifetime. Appellant also contends that the chancellor erred in not granting a new trial because of newly-discovered evidence.

The statute provides the procedure for the restoration of lost or destroyed wills and vests the jurisdiction in the chancery court. Section 10,545, Crawford & Moses’ Digest; Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27; Rose v. Hunnicutt, 166 Ark. 134, 265 S. W. 651.

The chancellor, it is true, in making his findings expressed a doubt as to whether the proof justified the finding that the will relied upon by the plaintiff was in existence at the date of the death of Mr. Askins, but there is no presumption that the will was destroyed by the testator with the intention of revoking it, the proof not showing that he retained the custody of the will or had access thereto, notwithstanding it could not be found after his death. • There was no proof to justify a finding that the testator had possession of the will after he executed it and left it with his attorney, although it was shown that he could have gotten it by asking for it. The testimony showed that the will had been duly executed, and, if not in existence at the death of the testator, that it had been fraudulently destroyed in his lifetime, and its provisions were clearly established and proved by two witnesses as well as that it was properly executed and attested by the witnesses as required by law.

If such presumption could arise from the testimony of the intentional revocation of the will by the testator, it was overcome in this case by the proof that the will was placed, in the desk of the partner of the member of the law firm who drew it, to which the testator had no access, and, by his testimony, that it was never called for by the testator or delivered to him.

A careful examination of the whole record discloses that the findings of the chancellor are not contrary to the weight of the evidence, but supported by it in his decision on both matters.

The testator could make a valid parol gift of the property to Mrs. Williams, and the evidence amply justifies the finding that he did so and delivered, possession of the property to her at the time, which she has ever since retained, although it is true that he promised to and indicated later that he had conveyed the title thereto by will. Mrs. Williams stated, however, that on the last day of his life when he realized his condition that he handed her the key to his trunk, stating that all the papers in which she was interested would be found therein and directed her to get them. She failed to get access to the trunk and the .papers because appellants, the Lumpkins, in whose house the trunk was, would not permit her to do so; and the fact that she thought that Askins had not only conveyed the property to her, the home where she lived, but his other property as well, which he had already indicated would be done, does not lessen the effect of the testimony showing the delivery of the property to her under the express intention to give it to her. Young v. Crawford, 82 Ark. 33, 100 S. W. 87; Causey v. Wolfe, 135 Ark. 9, 204 S. W. 977; Akins v. Heiden, 177 Ark. 392, 7 S. W. (2d) 15; Speck v. Dodson, 178 Ark. 549, 11 S. W. (2d) 456; St. Louis, I. M. & S. Ry. Co. v. Hall, 71 Ark. 302, 74 S. W. 293; Berg v. Moreau, 199 Mo. 416, 97 S. W. 901, 9 L. R. A. (N. S.) 157.

No error was committed because of the refusal to grant a new trial on account of newly-discovered evidence. No proper diligence was shown in procuring the alleged newly-discovered evidence when the necessity therefor fully appeared from the denials in the response to the motion showing the appellants were fully informed, before the beginning of the trial as well as during the introduction of the testimony, of what the issues were and the necessity for such testimony. The testimony proposed by the new witnesses was altogether cumulative in its nature, and there was no abuse of discretion on the part of the chancellor in refusing to grant the new trial. On the whole case we find no error in the record, and the decree is affirmed.


author: Kirby, J. McHaney, J.

text:
    Donald v. Heigel Lumber Company.
    4-3138
    Opinion delivered October 16, 1933.

      Edw. Gordon, Reynolds & Reynolds and E. A. Mitchell, for appellant.

      George F. Hartje, for appellees.
   Kirby, J.

Appellees, partners operating a retail lumber business in the city of Conway, Faulkner County, Arkansas, have been engaged in business there for a number of years. They erected a filling station on some property they owned in the town of Plumerville, Arkansas, about the year 1930, and leased it to an oil company •on a rental basis of one cent per gallon of gasoline sold at said station with a guarantee from said company that the rental would not be less than $10 per month. The oil company subleased said station to Charles Sams, who continued to operate same.

This station was situated upon highway No. 64, as same then ran through the town of Plumerville. About 1931 said highway No. 64 was changed from its old location so as to run through the town of Plumerville, and Sams wanted to move the station over on the highway No. 64 as re-located. Tubby Mitchell, who was the oil company’s local representative in Conway County, and Charles Sams, the sublessee, arranged with J. J. Heigel of the appellee company to move the station over on the new highway, and place same upon property purchased by them and deeded to appellees. Heigel consented to the station being moved over to the new location, “provided same would be done without any cost to the appellees.” Instead of moving the station or building, appellants Mitchell and Sams had the old station torn down and erected an entirely new and different station upon appellees’ property on the highway as re-located near Plumerville. Lumber and materials were purchased by Tubby Mitchell and charged to him. In fact, one of appellants, E. E. Mitchell, is the father of Tubby Mitchell, who was never the agent of the appellee; and he and Sams were not the contractors. The appellees never at any time agreed to pay for moving the filling station, nor consented that any part of the rental should be used to pay for same. The change was made entirely for the lessee’s and sublessee’s benefit and not for the benefit of appellees, and was agreed to be done without any cost to them.

The premises upon which the filling station was first erected was leased to the oil company for a period of five years at a rental of one cent per gallon for each gallon of gasoline sold at the station with a guarantee of not less than $10 per month, and the title of the property was in appellees. The title to the land upon which the filling station was later moved was vested in appellees in fee simple. Appellees consented to the moving of the filling station only for the benefit of the lessee and the sub-lessee, conditioned that the removal thereof could only be made at the expense of appellants and without any cost to appellees.

A lessor does not subject the fee of the property upon which the improvement is made to a mechanics’ lien merely by consenting that the lessee can make improvements thereon. This was definitely settled in the case of Hawkins v. Faubel, 182 Ark. 304, 31 S. W. (2d) 401, where this court said:

“We now decide the question reserved in the case of Whitcomb v. Gans, supra, and we hold that the lessor does not make his property subject to a lien merely by consenting for the lessee to make improvements. This view accords with reasons upon which the decisions were based in the following cases: Langston v. Matthews & Lawton, 117 Ark. 628, 173 S. W. 397; Daly v. Arkadelphia Milling Co., 126 Ark. 305, 189 S. W. 1035; Davis v. Osceola Lbr. Co., 168 Ark. 584, 270 S. W. 960; Fine v. Dyke Bros. Lbr. Co., 175 Ark. 572, 300 S. W. 375, 58 A. L. R. 907; Morrilton Lbr. Co. v. Groom, 176 Ark. 520, 3 S. W. (2d) 293. This view also accords with the'general rule where there is no statute making the owner liable who merely consents that the improvements shall be made.”

It is not contended that appellants at any time ever had any conversation or agreement with appellees relative to making the change of location of the station to the new highway, but rely upon the fact that the appellees consented to the removal of the filling station from its old location on their property to other property owned by them on the new highway on condition that appellees would not have to bear any costs of the moving. Neither Tubby Mitchell nor Sams was the agent of appellees, and appellant Donald testified that he received the job as the lowest bidder upon his bid to Mr. Sams. That the contract was put up for a bid, and he was the lowest bidder, and Mr. Mitchell O. K. ’d it, and we went to work, and he said he would pay it; said he had no dealings with Mr. Heigel about the matter. Upon the completion of the building, Donald, the contractor, demanded payment therefor from Mitchell, who said that the reason he did not pay him was that he didn’t have the money.

Mitchell admitted that he and Sams were responsible for the entire amount due on the contract with Donald. Upon cross-examination he stated that Heigel told him he would permit them to move the building only on condition that they would have the deed for the new site made to the lumber company, and the building removed without expense to them. Sams never at any time discussed the removal of the building from the old site to the new with Mr. Heigel. The agreement to move the building was made by Mitchell and Heigel.

There was no agency or authority on the part "of Mitchell or Sams to represent the appellees in any contract for removal of the building to the new location, and the contractor’s or materialman’s lien would not be effective against the fee of the land under the circumstances, a contract not being made with appellees or their agents, and the owners granted the permission to make the removal of the station to the new location only upon condition that it was to be done without expense to them.

No error was committed therefore in the decree of the chancellor, which is affirmed.

McHaney, J.

I dissent on the ground that appellants should be decreed a lien on the building only, to share ratably with appellees for the amount of its material that entered into the building.


text:
    Singer Sewing Machine Company v. Cole.
    4-3124
    Opinion delivered October 16, 1933.

      Appellant pro se.

      Donham & Fulk, for appellee.
   Mehaffy, J.

This is an action in replevin, begun in the Little Rock Municipal Court, for the recovery of an electric sewing machine.

The appellant sold the sewing machine to appellee for $210, taking an old machine of appellee’s for $30, and $10 in money, the balance of the $210 to be paid at the rate of $5 per month. Title of the machine was to remain in appellant, until the full consideration had been paid. Appellee made two payments, and refused to make additional payments, and also refused to surrender the machine.

Appellee filed answer alleging that the execution of the contract was induced by fraudulent representations of appellant’s agent in making the sale. She alleged that the appellant’s agent represented to her that the appellant ,was offering to a few selected women, the opportunity to enroll in a class of advanced sewing, designing and drafting, which was to be taught in Little Rock by a representative of appellant; that the price of the course was $150, and that no one could enter the class unless they purchased one of appellant’s machines; that relying on these statements, believing them to be true, she entered into the contract for the purchase of the sewing machine; that she thereafter went to the office of appellant in Little Rock to secure the instructions, and learned that the school was not as represented by appellant’s agent, and was nothing more than an elementary class in dressmaking and sewing. She further stated that appellant breached the contract by its failure to carry out the terms; that the contract was induced by fraud, and she was entitled to have it canceled, and entitled to the return of her old machine. She prayed for a dismissal of the complaint, and for possession of her old machine.

The appellee, at the time she purchased the machine, signed an instrument promising to pay the purchase price at the rate of $5 per month. The instrument also retained title in the appellant until paid for in full. There was also added, after the signature of appellee, the following: “Also school free to daughter, Francis. Hem. Attch. free after completion of course.” Also on the margin was the following: “This note specifies all the conditions of this sale, and no other will be recognized.” The attorneys for the parties in municipal court, signed the following stipulation:

“Expressly reserving and saving to each of the parties hereto all right to except to and interpose objections to the competency, relevancy, legality and legal effect of the facts stated, it is agreed by and between the Singer Sewing Machine Company, by its attorney, Jno. S. Grate-wood, and Mrs. Eula Mae Cole, by her attorneys, Owens & Ehrman, that the following facts would be proved if testimony were offered upon hearing of the above-styled cause:•
“That on the 3rd day of June, 1932, the defendant, Mrs. Eula Mae Cole, was solicited by one Marvin O. Dawson, the then agent of the plaintiff, Singer Sewing Machine Company, who represented that he was the representative of the educational department of the Singer Sewing Machine Company, and that the company was offering to a few select women of Little Rock and North Little Rock the opportunity of enrolling in a class of advanced sewing, designing and drafting to be taught by an expert who would be brought from New York by the Singer Sewing Machine Company; that the class or course of instruction had never been before taught in Little Rock; that the usual price charged for the course was $150; that upon completion of the course the defendant, Eula Mae Cole, would be so trained as would enable her to support her family in case her husband lost employment; that the large firms in New York were looking for women with the training this company was offering, and that he could place fifty women in responsible positions as designers of women’s clothes; that no women, however, could enroll or take the course of instruction unless she purchased one of the Singer Sewing machines; that the purchaser of a machine would receive the course free.
“That, by being induced by and relying upon the promises and representations of the plaintiff, by its said agent, the defendant purchased a machine for the price and consideration of $210, of which $10 was paid in cash and $30 was credited upon the remainder as represented by an old machine of defendant’s, and at the same time executed and delivered to the plaintiff a sales agreement contract, reciting said consideration and said credits and providing that the balance of $170 would be payable at the rate of $5 per month, and that title to said machine should remain in the plaintiff, Sewing Machine Company, until the full consideration was paid; that the contract attached to the complaint is the contract signed and executed by the defendant; that sometime after the purchase and delivery of said machine the defendant went to plaintiff’s office at 924 Main Street, Little Rock, and applied for the course of instruction, but found that the school of instruction conducted there was not as represented to her by the plaintiff’s said agent, and that no course of designing and drafting was being offered by plaintiff, but only a course in less advanced sewing was being offered; that upon learning this fact the defendant demanded that plaintiff give the course as represented to her would be given by plaintiff’s said agent; that plaintiff had been and was then offering a course of instruction in sewing at its place of business in Little Rock, but at no time did it offer to give such instruction as was represented by its agent; that defendant paid the installment due in July and August and then refused to make further payments; that there was no defects, flaw or misrepresentation as to the kind or quality of the machine purchased, and no objection thereto has been found that same was not as was represented, or that same was not worth the price asked for it.”

There was a judgment in favor of appellant in the municipal court, and an appeal prosecuted by appellee, and in the circuit court judgment was rendered in favor of appellee. The appellee offered testimony tending to prove the allegations of her answer. Judgment was entered for the appellee, motion for new trial filed and overruled, and the case is here on appeal.

It is first contended that the court erred in permitting appellee to introduce testimony varying from and inconsistent with the statement of facts agreed to in the stipulation above set out. Attention is called to Webster v. Goldsby, 130 Ark. 141, 197 S. W. 286. In that case the court quoted with approval the following statement from 1 R. C. L. 778: “Where parties to a case agree to submit the same for decision upon an agreed statement of facts, and nothing is said in the agreement to the contrary, each party is absolutely bound and concluded by the statements of fact thus agreed to, so far as the trial in which the stipulation is made is concerned; and where the agreement is not expressly limited to use in the trial in which it is made, it is admissible in evidence as an admission in any other trial or litigation between the same parties, where the same issues are involved, but it is not absolutely binding and conclusive upon the parties in other litigation.”

The court also said in the above case that it was error to permit the jury to consider the stipulation, along with all other evidence in the case, in determining what the agreement between the parties was. The evidence offered in that case, however, tended to contradict the recitals of the stipulation, and the court held that it was improper to admit evidence contradicting the recitals of such stipulation. The stipulation in the instant case does not purport to contain all the facts, but the parties simply agree that the facts set out in the stipulation would be proved if testimony were offered upon the hearing. We therefore think that the statement in the stipulation that the following facts would be proved is equivalent to an agreement that the following facts are true, and we think the parties are bound by the agreement. It does not, however, prevent either party from introducing other evidence which does not contradict the stipulation.

The authorities quoted from, and especially R. C. L., are discussing what is called an agreed case, and that means that all the facts are contained in the agreement. It is stated in 1 R. C. L. 777: “The agreed case should contain a clear statement of the facts agreed upon, without ambiguity or material omission. All the facts upon which the controversy depends, necessary to give ground for a conclusion of law, should be stated, otherwise the court cannot pronounce judgment, and the proceedings will be dismissed. It ought affirmatively to appear that the case is submitted to the court for an opinion of the law."

It is also stated in the same volume, page 778, that where the parties to a case agree to submit the same for decision upon an agreed statement of facts, and nothing is said in the agreement to the contrary, each party is absolutely bound and concluded by the statement of facts thus agreed to.

In this case we think the parties are bound by the statements in the stipulation, and cannot introduce evidence to contradict it, but we do not think that it purports to contain all the facts, and it does not therefore prevent either party from introducing other evidence which does not contradict the stipulation.

It appears from the record that oral evidence was taken in the municipal court. When the case came on for trial in the municipal court, the record shows that all parties announced ready, witnesses were sworn and testified, and judgment -was entered in favor of the appellant. What the evidence was in the municipal court, is not shown by the record.

When evidence was offered in the circuit court, the appellant objected, first, because the parties had agreed as to the facts on which the case would be tried, and that they were bound by this stipulation, and, second, appellant objected to the introduction of oral testimony to vary or contradict the plain, unambiguous terms of the written contract. His objection was overruled, exceptions saved, and the oral testimony was admitted.

The answer alleges that fraudulent representations were made, which induced appellee to sign the note. Parol evidence is admissible to show that a written sales contract was procured by false representations relied upon by the buyer, and upon which the buyer was entitled to rely. The testimony offered in this case tending to show that false representations were made and relied on by the appellee was competent. Shaver v. Clark County Bank, 182 Ark. 198, 31 S. W. (2d) 132; New Rome Sewing Machine Co. v. Westmoreland, 183 Ark. 769, 38 S. W. (2d) 314.

We think the court was correct in holding that the writing failed to express all the essential terms of the agreement. Notation on the stipulation with reference to the daughter is incomplete and ambiguous.

In a suit in replevin, the plaintiff must show both title to the property and right to possession. Any evidence on the part of the defendant that tends to show either that plaintiff has no title, or that he is not entitled to possession is competent, and, under our statute, the appellee was entitled to show by way of set-off or counterclaim any facts that showed fraud in the execution of contract, and was entitled to show that she had been damaged by a breach of the contract.

The appellee alleged fraudulent representations inducing the making of the contract, but she did not ask for damages because of the breach of the contract; she simply prayed in her answer for a dismissal of the complaint and for possession of her old machine; she did not ask for possession of the new machine. We think, therefore, that the court erred in entering .judgment in her favor for the new machine, because the contract provided expressly that appellant retain title, and, if she had failed to carry out her part of the contract, it was entitled to possession. Her defense was a breach of the contract and false representations, and she had a right under this pleading, not only to show a breach of the contract, but to show whether she was damaged thereby, and the extent of her damages, if any.

She testifies that the price for the instructions which were to be given at the school was $150. The evidence, however, does not show the extent of her damages by reason of breach of the contract.

The judgment is therefore reversed, and the cause remanded for a new trial, with permission for appellee to offer evidence showing whether she was damaged, and, if so, how much.