author: Mehaffy, J.

text:
    Mutual Benefit Health & Accident Association v. Bird.
    Opinion delivered March 21, 1932.

      Malcolm W. Gannaway, for appellant.

      W. A. Bates, Sam T. Poe, Tom Poe and Donald Poe, for appellee.
   Mehaffy, J.

This suit was originally filed by appellee against appellant for $175 with interest, penalty and attorney’s fees.

Appellee filed an amendment to his complaint in which he asked judgment for $2,675 together with 12 per cent, penalty and $400 attorney’s fees. He alleged that the appellant, in consideration of the payment to it by the appellee, of an annual premium of $40, delivered to appellee its policy of accident insurance, attaching a copy of the policy to his complaint. He further alleged that on January 5, while said policy was in full force and effect, appellee was accidentally injured in an automobile accident, wherein two cars ran together, thereby inflicting injuries to his head, hips, back, chest and forehead, and breaking and crushing ribs, and causing internal injuries, which have totally and permanently injured him; that as. a result of the injuries he has been totally and permanently injured from January 5, 1931, and will continue so.

He further alleged a performance of all the conditions of said policy on his part, and that he gave appellant due notice and proof of his injuries, and made demand for payment, which appellant refused to pay, and asked judgment against the appellant for the amount alleged to be due under the policy.

Appellant filed answer in which it denied all the material allegations in the complaint, and alleged that at the time of the accident there was no policy of accident insurance in force.

One of the clauses in the policy reads as follows: “If such injuries as described in the insuring clause shall wholly and continuously disable the insured for one day or more, and so long as the insured lives and suffers said total loss of time, the association will pay a monthly Indemnity at the rate of eighty ($80) dollars.”

The appellee testified that he was 58 years old, and that his occupation was and had been for some time, that of running and working in a filling station at Waldron; prior to that time he had been a blacksmith; that his policy was issued to him in 1924, and was in force at the time of his accident and injury. All premiums had been paid since the policy was delivered to him. He paid $12 when the policy was delivered, and $10 every quarter thereafter; early in 1931 he was injured in an automobile accident at Waldron; that he was confined to his home on account of the injuries sustained for about six weeks, and was treated by Dr. Duncan; that since the accident he had been unable to fix or repair heavy casings or tires, or to grease cars; that before the accident he could do this work; when he lifts anything heavy or pulls with his right arm. it hurts his side; two or three ribs and his breast bone were broken on the right side; he spit up 'blood for a week, and does not sleep or lie on his rig'ht side, as he could before the injury.

Some of the ribs were caved in, and this was shown to the jury. A copy of the policy was introduced in evidence. Dr. Duncan had treated him since January 26, 1931.

Mr. Harris and a boy named Chandler, appellee and his son worked at the filling station; appellee’s son was the proprietor; Mr. Harris does the heavy work. Immediately after the injury he told his son to notify the company.

Mack Bird, son of appellee, testified that he was the cashier of the bank of Waldron and had been paying his father’s premiums for seven or eight years;'that on December 30,1930, he mailed a check for $10 to appellant; the check was mailed in a long envelope, with the Bank of Waldron printed thereon; that it was addressed to the appellant at Omaha, Nebraska. It was drawn on the bank at which witness worked, and had been paid and canceled. His father was injured on January 5.

He testified that in September or October, 1930, he paid the premium to appellant’s collector at Waldron; he sent a letter to the company with the check on December 30, 1930. He did not have a copy of the letter. He testified that he did not mail the cheek in the envelope attached as an exhibit to the deposition of Grace Welch, but that he mailed a notice of the accident in an envelope similar to the one attached to her deposition. He mailed the notice of the accident the day after his father was injured.

The check sent on December 30, to Little Bock, was deposited in Omaha, Nebraska, and paid by the Bank of Waldron, and did not show that it ever went to any bank in Little Rock.

T. R. Harrison testified that he sold policies and collected premiums for appellant, and that sometimes he would remit to appellant by his own check or by a cashier’s check, charging 10 per cent. Appellant would send witness a list of policyholders in Waldron twelve or fifteen days before premiums were due; that he collected $10 every quarter from appellee on the policy sued on; that he wrote the policy, and that the application was dated January 29, 1924. He said if the premium due January 1, 1931, was not paid until January 5, 6 or 8, the policy hadlapsed.

Dr. Duncan was introduced and testified as to appellant’s injuries, and also introduced a statement made to the company. Dr. Bevil also testified about the injuries to appellee.

Grace Welch, a witness for the appellant, testified that she was mail clerk for the appellant in its home office in Omaha, Nebraska, and had been for six years; that all premiums which were paid direct to said office by mail were brought to her; that she received a premium on January B, 1931, in the amount of $10 from appellee. She introduced an envelope in which she said the check came, and she testified also that a reinstatement blank came in the same envelope; that the reinstatement blank showed premium paid on January 6, 1931. She testified that there was no other policy issued to appellee, and that appellee’s policy had lapsed on October 1, 1930, for nonpayment of premium due on that date, and that it was not reinstated until January 8, 1931.

The deposition of C. E. Forbes, witness for appellant, was introduced and in said deposition he testified that the policy had lapsed. He also introduced a letter in which he said that appellee had been notified that his policy had lapsed. This witness also testified that the appellee had no other policy of insurance with appellant.

The deposition of Thelma Webber was introduced. She testified that she was a stenographer and bookkeeper for appellant in the office at Little Bock, Arkansas, and received all checks and remittances from policyholders which were sent to the Little Bock office; that the Little Bock office received a premium on July 4, 1930, and that no other premium was received until April 1, 1931; that the records at Little Bock showed that the policy was in force until October 1, 1930, and that it was reinstated on January 6, 1931. She had a card showing appellee’s payments, and this card constituted all the records in her office with reference thereto. There was no correspondence between the Little Bock office and the Omaha office with reference to appellee’s claim. The only record she had in her office showing remittances of appellee on his policy, was that contained on the card which she exhibited, and it was attached to her deposition.

She also testified that T. B. Harrison was appellant’s collector and furnished by the home office with a list of policyholders whose premiums were due, and that Harrison, after collecting, would remit to the Little Bock office; that the home office sent out notice of premiums due, and that her office notified policyholders of the lapsing of their policies; she did not remember whether she had sent a lapse notice to appellee or not. Her records did not show how the premium was paid on January 6.

Alva Hall testified that he lived in Waldron, was connected with the Chevrolet Company who sold Chevrolets, and waited on the public in servicing, selling, greasing and oiling ears, and running a general garage and repair business; that about two hours before he testified, Mr. Grannaway brought a Cadillac or Packard car, and witness took the right front tire therefrom and weighed it; that it weighed 54 pounds.

Numerous instructions were given by the court, and there was a verdict and judgment for appellee in the sum of $2,675, 12 per cent penalty, and attorney’s fees. This appeal is prosecuted to reverse said judgment.

Appellant states that it defends the suit on two grounds: first, that the policy sued on had lapsed, and was not in force on January 5, 1931, the date of the injury; and second, that the appellee was not totally and permanently injured.

It was contended by the appellant that the policy lapsed on October 1, 1930, because of nonpayment of dues, but the appellant concedes that the finding of the jury against appellant on this point is conclusive. There is therefore no necessity to call attention to or discuss the evidence on this question.

Appellant however contends that the premium due January 1, was not paid until January 8, and that the policy lapsed because of the failure to pay the premium due January 1, 1931, and was therefore not in force on January 5, at the time of appellee’s injury.

Mack Bird, a witness for appellee, testified that he had been sending the premiums for his father for seven or eight years, and that on December 30, 1930, he sent a check to the company for $10; that the check was mailed on the night of December 30, in a long envelope of the Bank of Waldron, and that he wrote a letter.

The check dated December 30, was introduced in evidence and showed that it was deposited in the bank at Omaha, on January 8. The witness testified that he mailed it to the office at Little Rock. Witnesses for appellant testify that the check for the January premium was not received until after the injury.

C. E. Forbes, assistant secretary of the company at Omaha, Nebraska, testifies that the policy was reinstated on January 6. Of course, it could not have been reinstated if appellant’s theory is correct, until the check and reinstatement application was received.

Grace Welch, the mail clerk at the home office in Omaha, Nebraska, testified that all premiums that came to that office by mail were brought to her desk, opened, and a record made of them, and that she received the premium on January 8, 1931.

The evidence of the appellee shows that on the 6th, the day after the injury, a notice of the injury was sent, and Grace Welch introduced an envelope in which she says was inclosed the check for the premium and the reinstatement application, but which the appellee’s witnesses say was the envelope in which the notice of the injury was sent.

The two witnesses for appellant disagree as to the time when the premium was received, and their testimony is in conflict with the testimony of the appellee that the premium was paid on December 30, 1930. It is undisputed however that the check was dated December 30, 1930, and it is also undisputed that notice of the. injury was mailed to the office at Omaha.

The evidence being in conflict as to whether the premium was paid or whether the policy had lapsed, this was a question of fact for the jury, and at the request of the appellant the court gave the following instruction: “If you find from the evidence that premiums on the policy sued on did. not reach the defendant’s office in Omaha, Nebraska, or its Little Rock office, on or before noon of the first of January, 1931, that the policy lapsed at that time, and the plaintiff cannot recover for his alleged injuries, unless he has shown by a preponderance of the evidence that said premium was so received before plaintiff’s alleged injury of January 5, 1931.”

The question therefore whether the policy was lapsed was submitted to the jury under an instruction requested by the appellant, and the jury’s finding on this question is conclusive. There was substantial evidence to-support the verdict. The jury are the judges of the weight of the evidence and the credibility of the witnesses.

The next question, and the most difficult one, is whether the appellee was wholly and continuously disabled. The undisputed evidence is that appellee was 58 years old; that, .before he went to work for his son in-the filling station, he was a blacksmith; and the undisputed evidence also shows that, while he did some light work at the filling station for his son, he did not receive any salary or wages, and he testifies that he was unable to do any heavy work; that his -ribs and breast bone were broken, and that it caused him pain and suffering to attempt to do any lifting or any heavy work.

Dr. Duncan testified that appellee had two broken ribs, and there might have been more than two; that he was nervous, and also testified that the breast bone was fractured; that he spit blood for a time, and Dr. Bevil testified that he found the sixth rib had been fractured and was bent down, and made a kind of depression, and it was pointed out by Dr. Bevil to the jury where and ■how appellee was injured. He testified at length as to appellee’s condition, and that the injuries were permanent, and it seemed very reasonable that as a result of the injuries he was incapacitated from doing his work in any way. He also testified that appellee would never get any better.

The evidence showed that his rib was bent, his breast bone broken; that these injuries would cause him pain and suffering, and would disable him from performing the work that he had theretofore done. Of course, he is not entirely helpless, and after his injury endeavored to do some work, but his condition was such that he could not do the heavy work without constant pain.

Total disability does not mean that he is unable to do anything.

The general rule and that adopted by this court is stated in Kerr on Insurance, p. 385, as follows:

“Total disability must, from the necessity of the case, be a relative matter, and must depend largely upon the • occupation and employment in which the party insured is engaged. One who labors with his hand might be so disabled by a severe injury to one hand as not to be able to labor at all at his usual occupation,- whereas a merchant or prefessional man might, by the same injury, be only disabled from prosecuting some kinds of business pertaining to his occupation. Total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. Total disability exists although the insured is able to perform a few occasional acts, if he is unable to do any substantial portion of tbe work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his business, or that his injuries were of such a character and degree that common care and prudence required him to desist from his labors so long as was reasonably necessary to effect a speedy cure.”

A careful reading of the evidence in this case shows that appellee’s injuries were of such a character and degree as to wholly disable him from doing all the substantial and material acts necessary to be done in the prosecution of his business, and that common care and prudence would require a man in his condition to desist from the kind of labor he had performed prior to his injury. '

This court, in a decision of the Mo. State Life Ins. Co. v. Snow, ante p. 335, quoted with approval the rule above set out, stating that it had been followed many times since by this court, and stated: “Of course, such a provision in a policy does not require that the insured shall be absolutely helpless or insane, but there must be such disability as renders him unable to perform all the substantial and material acts in the prosecution of a gainful occupation.”

The clause as to total disability in the case last referred to stated that the disability must be such as to prevent the insured then and at all times thereafter from engaging in any gainful occupation.

The disability clause in the policy here involved states that he shall be wholly and continuously disabled, or for so long as he suffers said total loss of time.

Appellant calls attention and quotes from Aetna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 336. The court said in that case: “Appellant’s contention for reversal of the judgment is that the undisputed evidence showed appellee had not become wholly, continuously and permanently disabled. We think there is substantial testimony in the record tending to show that appellee was totally" and .permanently disabled, according to Mr; Kerr’s definition of total disability when used in indemnity insurance policies.”

The rule announced in Kerr on Insurance is quoted with approval in that case. Industrial Mut. Ind. Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029.

Appellant next quotes from Smith v. Supreme Lodge of Order of Select Friends, 62 Kan. 75, 61 Pac. 416, and tliat court said, among other things: “Whether an injury constitutes a total disability is ordinarily a question for the jury,” but the court also stated in that particular case from the facts alleged and the well known requirements of plaintiff’s occupation, it is clear that he is not totally and permanently disabled from carrying it on.

In the above case the insured was a pharmacist, and suffered an accidental gun-shot wound in the left arm, and it became necessary to amputate the arm at the shoulder joint. The policy in that case provided, among other things, that the loss of one hand and permanent crippling of the other would constitute total and permanent disability. The insured suffered the loss of one hand, but there was no injury to the other hand. His right hand was uninjured, and the court said to hold that that was a total disability under the policy would be to alter the contract.

The next case relied on by appellant is Lobdill v. Laboring Men’s Mutual Aid Association, 69 Minn. 14, 71 N. W. 696, 38 L. R. A. 537, 65 Am. St. Rep. 542. The court in that case said that the cases which have placed a construction upon the term “total disability” might seem to be divided in two' classes, vis: those which construe- it liberally in favor of the insured, and those which construe it strictly against him. The court also said in that case, in speaking of the acts that the insured performed, that the frequency and nature of acts would be for the consideration of the jury in determining whether he was totally disabled, and that the evidence in the particular case justified the jury in finding that he was, for the full 17 weeks, wholly disabled within the meaning of the policy.

The next case relied on by appellant is Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665, 133 So. 707. In that case the court said: “We have had occasion to consider total disability or total disablement in accident policies.” In U. S. Casualty Co. v. Perryman, 203 Ala. 212, 82 So. 462, there was a sprain of thé knee joint. ■ “The insured did not at the time think it serious, and proceeded in good faith to do his usual work in part, but, becoming worse, he did become wholly disabled for a time, and it appeared that, with due regard to his own care, he should not have worked from the beginning. We held such evidence would support a finding of total disability from the beginning, and that entering upon his work, although it may have aggravated the trouble, being in good faith, worked no estoppel against him.”

The court, in the same case, also said: “Total disability may exist, though it is physically possible for insured to perform occasional acts as part of his employment or business.”

In the instant case, the appellee did not think at first that he was totally and permanently disabled, and he undertook to do some work, but this would not work an estoppel or disentitle him to recover if the evidence was sufficient to justify the jury in finding that he was totally disabled.

The next case relied on is Marchant v. N. Y. Life Ins. Co., 42 Ga. App. 11, 155 S. E. 221. The court in that case said: “The fact that the plaintiff attempted for a season to carry on this line of employment before ascertaining his disability to do so, and refraining from such employment, should not prevent a recovery for benefits thereafter accruing under provisions of the policies; and this is true even though such employment had been his only occupation.”

The next case relied on is Bachman v. Travelers’ Ins. Co., 78 N. H. 100, 97 Atl. 223. In that case the court, after calling attention to the evidence, said: “With this evidence in the case, it was a question of fact whether the plaintiff did or did not have substantial and valuable earning capacity during that time. ’ ’

Total disability does not mean absolute helplessness. If construed in that sense, .the policy would be worthless; it would not mean anything. A man might be totally disabled in the sense that this term is used in insurance policies, although he was able to go about, go to places of business, and perform light work occasionally. He might be able to do these things and still be totally disabled in the sense that he could not wait on the trade in such a manner as to retain it, and, if one is so disabled that he cannot perform the substantial and material acts in the prosecution of his occupation, he is totally disabled.

Appellant calls attention to the following Arkansas cases which discuss the question here involved and adopt the rule above set out: Ætna Life Ins. Co. v. Phifer, 160 Ark. 103, 254 S. W. 335; Industrial Mutual Ind. Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S) 635, 21 Ann. Cas. 1029; Brotherhood of Locomotive Firemen & Enginemen v. Aday, 97 Ark. 425, 134 S. W. 928, 34 L. R. A. (N. S.) 126; Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S. W. 750; American Life & Acc. Assn. v. Walton, 133 Ark. 348, 202 S. W. 20; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. 310.

In the last case the court said: “His business was such that he could not profitably conduct it by merely supervising it and hiring others to perform the' work. * * * His loss in this respect was the very object in taking out the insurance. Hence, when the character of the business, together with the attendant circumstances, is considered, we are of the opinion that reasonable minds might reach the conclusion that the insured was totally and permanently disabled within the meaning of the policy as above defined, and that the jury was warranted in finding a verdict in his favor.”

In this case there was substantial evidence tending to show that appellee could not perform the work without great pain and suffering, and some of the work he could not do at all, and we think the evidence was such as to make it a question of fact for the jury, and the jury’s finding- is conclusive here.

At the request of the appellee, the court gave an instruction, which was not objected to, defining total disability, and, under the instructions not'objected to, the jury found for the appellee.

We find no error, and the judgment is affirmed.


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Mooney v. Tillery.
    Opinion delivered March 21, 1932.

      B'usbee, Pugh & Harrison, for appellant.

      Witt & Witt, for appellee.
   Mehaeey, J.

The appellant, Ed B. Mooney, was engaged in the general construction business in the city of Hot Springs, and owned and operated a number of automobile trucks and other vehicles. The appellant, Floyd Cockrell, was employed by Mooney as a driver of an automobile truck.

On June 28,1931, Floyd Cockrell was driving a truck of E’d B. Mooney, on the Little Bock-Hot -Springs Highway, five or six miles from Hot Springs, and was driving in the direction of the city of Hot Springs.

W. T. Tillery was driving an automobile in the opposite direction. There was a collision, and Andy Lee Wilson, who was riding with Tillery, was killed, and Tillery’s car was demolished.

There was a judgment in favor of Tillery for $350, a judgment in favor of the estate of Andy Lee Wilson for $6,000, and a judgment in favor of J. H. Wilson in his own right, for $1,500'. This appeal is prosecuted to reverse these .judgments.

The evidence was in conflict as to whose negligence caused the collision, and the verdict of the jury on that question is conclusive. Appellants do not contend that there was not sufficient evidence to sustain the verdict as to negligence. They contend, however, first, that the evidence is not sufficient to sustain a verdict for $6,000 for the benefit of the estate, on account of the pain and suffering- endured by deceased.

' ' Appellants concede that there was evidence sufficient to justify a verdict for pain and suffering, but it is contended that the evidence as to pain and suffering- was not sufficient to justify a verdict in the sum of $6,000.

• Witnesses testified that Andy Wilson groaned several times, twisted his body and shoulders, and was suffering pain. Some of appellants’ witnesses testified that he was not conscious, but, as conceded by appellants, it was a question for the jury, and their finding- is conclusive as to pain and suffering.

The time, however, which he suffered was very short because the evidence showed that he died within thirty minutes or an hour after his injury. Considering- the character of the injury and the short time that he lived after the injury, we have reached the conclusion that $6,000 is excessive,, and that the evidence is not sufficient to sustain a verdict for more than $3,500 for pain and suffering, and the judgment in favor' of the estate for $6,000 is therefore reduced to $3,500.

It is next contended that instruction No. 3, given at the request of the appellee, was erroneous. Instruction No. 3 reads as follows: “If you believe, from a preponderance of the evidence in this case, that the plaintiff, J. H. Wilson, as father and administrator of the estate of Andy Lee Wilson, deceased, and Homer Tillery, are entitled to recover, then, in assessing the damages dne J. H. Wilson, as administrator, yon should take into consideration the conscious pain and suffering endured by the deceased, Andy Wilson, from the time of the collision, or injury, until the time he died, if any such pain and suffering has been shown by the evidence. In assessing the damages due to J. H. Wilson as the father of said Andy Wilson, you should take into consideration the pecuniary loss suffered by the father of the deceased, if any has been shown by the evidence, resulting from the death of the said Andy Wilson. In estimating this loss, it is proper for you to consider the age of the deceased at the time he was killed, the probable duration of his life if he had not been killed, the probable duration of his father’s life, his health, habits, occupation, the value of his services to his father, and the probable value of his services he would have rendered in the future.”

One objection to instruction No. 3 was that there was no proof that the deceased, Andy Wilson, contributed any sum to his father, or that he would in the future contribute any sum to his father.

J. H. Wilson, father of the deceased, testified that his son helped him in his crop the biggest part of the time. He was 22 years old, and made his home with his father. He helped in the farming, plowing corn, breaking land, chopping cotton, getting wood in the winter time, and things like that. He testified that his son helped support him, and gave him some small sums of money, and bought some clothes'for his mother, and he did not charge anything for the work he did for his father.

There was therefore some substantial evidence to support the verdict in favor of the father, and no evidence contradicting it.

Appellant calls attention to 8 R. C. L., § 40, p. 477, and that section states the rule to be that any one who is injured in Ms person may recover for loss or diminution of Ms earning capacity, but it is also stated in said section, “nor will recovery by an infant for prospective loss of earnings, after he has reached his majority, be precluded by the fact that he has never earned anything, and that no one can tell with certainty what his future earning capacity will be.”

Of course, it would be impossible to tell what contributions would be made by a son to his father, but it may be shown to a reasonable certainty what his future contributions would be.

The next case to which attention is called by the appellant is Hines v. Johnson, 145 Ark. 592, 224 S. W. 989. We do not think the principles announced in that case have any application to the facts in this case. The court held in that case that, where damages are claimed for the death of a child incapable of earning anything or rendering services of any value, the value of its probable future services to the parent during its minority is a matter of conjecture, and may be determined by the jury without the testimony of witnesses. The court also held in that case that the surviving father was the next of kin, and that he could recover, but that the mother could not, for the loss of the child’s services.

Appellant also calls attention to the case of Interurban Ry. Co. v. Trainer, 150 Ark. 19, 233 S. W. 816. In that case it was held that the measure of damages to a parent was the pecuniary value of the services during minority, and that, since the parent was entitled to the services of the minor child, the law presumes that the parent has incurred and suffered pecuniary loss and damage in the death of an infant, even before it has arrived at an age to render services of pecuniary value.

But this court has held that, where the evidence shows contributions to the parent by the son, and where the evidence would justify the finding of the jury that he would contribute in the future, and that the father had a reasonable expectation of receiving contributions in the future, this evidence would justify recovery. Fordyce v. McCants, 55 Ark. 384, 18 S. W. 371; St. L., Memphis & S. E. Rd. Co. v. Garner, 76 Ark. 555, 89 S. W. 550.

The deceased in this case was 22 years old, lived with his parents, worked on the farm for them, did not receive from them any compensation for his work, and the jury returned a verdict for $1,500. There was substantial evidence to sustain the verdict, and we do not think $1,500 was excessive.

“Legal liability alone is not the test of the injury in respect of which damages may be recovered; but the reasonable expectation of pecuniary advantage by the relative remaining alive may be taken into account. It is not essential to the recovery of substantial damages by the father of an adult son that the latter had accumulated property, or given pecuniary aid to the former after attaining his majority, other facts being proved which justify the conclusion of substantial loss.” Sutherland on Damages, § 1273.

“In case of the killing of an adult child, who is at the time actually rendering services, recovery may be had even in all jurisdictions. * * * A reasonable probability of pecuniary advantage from the continuance of life mnst be shown; if it is shown, the parent may recover, if not, there can be no recovery. So, where at and before the time of his death the deceased was not contributing to his parent’s support, there can be no recovery.” Sedgwick on Damages, voh 2, p. 1117.

The verdict in favor of the appellee for $6,000 for pain and suffering is reduced to $3,500, and affirmed for that amount. We find no other error, and the judgment is in all other respects affirmed.


author: Butler, J.

text:
    Ridge v. Miller.
    Opinion delivered March 21, 1932.

      W. J. Dungan, for appellant.

      Ross Mathis, for appellee.
   Butler, J.

This appeal is from a decree of the Wood-ruff Chancery Court dissolving a temporary injunction by which the appellee, Edgar Miller, as county treasurer, was temporarily restrained from paying certain warrants duly issued by the school board of district No. 22, in payment for services rendered in transporting the children of that district to and from school, and warrants issued to pay a part of a teacher’s salary.

The agreed statement of facts presented to the trial court were that (1) on November 24, 1930, R. H. Curtis began to transport certain pupils of the district to the school, and on the 29th day of that month the board of directors adopted a resolution authorizing a lease by the district of the truck of Curtis and his employment to drive the same; that Curtis transported an average of twenty or more pupils of the district each school day, using his truck from the date he first began until and including May 27,1931. Warrants were issued to him for his services and use of his truck. Of these warrants, $216.80 was for services rendered by Curtis after March 25, 1931. It was agreed that the services rendered were worth the sums represented by the warrants, and that the said Curtis was a member and president of the board of directors of the school district on November 24, 1930, and until and including May 27, 1931.

(2) That Mrs. Dorothy Patterson was regularly employed as a teacher during the school term, ending in May, 1931, and performed her duties in person except for a period of ten days during the month of February. On four of these days her infant child was ill; on two days she was ill herself, and on four days her mother was sick. With the knowledge and permission of the superintendent of schools of the district, she employed as a substitute teacher a pupil of the school in the 10th grade, who held a second grade teacher’s certificate; that the said substitute taught Mrs. Patterson’s classes during the said ten days, and for her services was paid $15 by Mrs. Patterson, that sum being arrived at by agreement between Mrs. Patterson, the substitute teacher and the superintendent. Mrs. Patterson was issued warrants in full compensation of the amount that would have been due her under her contract.

1. It is conceded by the appellant that Curtis was entitled to be paid the value of his services from November 24 until March 25, 1931, but that he should not be paid for his services rendered thereafter, because on \ that date act No. 169 of the General Assembly was approved, which act, by § 102, provided:

‘ ‘ The board of directors of all school districts in the State are authorized to purchase vehicles and otherwise provide means for transporting pupils to and from the school, when necessary. To this end it may hire or purchase such school wagons, buses, or other vehicles, and hire persons to operate them, or make such other arrangements as it may deem best, affording safe and convenient transportation to the pupils; and the board may pay for all such property or services out of the funds of the district. Provided, that any contract with any member of the school board for the transportation of children or to drive a bus shall be null and void. ’ ’

This court, in the early case of Lindsay v. Rottaken, 32 Ark. 619, recognized the rule that any act which is forbidden by the common or statutory law cannot be the foundation of a valid contract, nor can anything auxiliary to, or promotive of, such act be such.

In Spearman v. Texarkana, 58 Ark. 348, 24 S. W. 883, 22 L. R. A. 855, a distinction was recognized between contracts which are against public policy merely on account of the personal relation of the contractor to the other parties in interest and those which are void because the thing contracted for is against public policy. In the latter class the parties acquire no rights which can be enforced either at law or in equity, but in the former class, it of itself being lawful and beneficial, it would seem unjust to allow the party who may be entitled to avoid it to retain the benefits without any compensation at all. In the application of these principles, this court held in the case of Smith v. Dandridge, 98 Ark. 38, 135 S. W. 800, 34 L. R. A. (N. S.) 129, Ann. Cas. 1912D, 1130, that, as a general rule, it is unlawful for a school director to enter into a contract with the school district in which he has a personal and individual interest, because his relation to the district is of a confidential and fiduciary nature, and therefore public policy forbids that he place himself in a position where his own personal interest might conflict with that of the school district which he must represent. This disability, however, arises not because the thing contracted for is of itself illegal or immoral, but because of the personal relation to the district which requires that he should not suffer himself to be placed in a position which might render his personal interest antagonistic to. that of the district; but, following the rule recognized in Spearman v. Texarkama, supra, and in Frick v. Brinkley, 61 Ark. 397, 33 S. W. 527, it was held that, where a contract such as the one then under consideration was not affected with any intrinsic immorality or unlawfulness, when services were rendered and accepted under the contract, on principles of natural justice and right just compensation'therefor ought to be made.

In the instant case, it is admitted that no fraud was practiced in the procurement of the contract; that the ends proposed thereby were necessary and beneficial, and that the services rendered were worth the amount for which allowance had been made and the warrants issued; and it is appellee’s contention that, on the principle of natural justice recognized in the cases, supra, the decree of the trial court should he upheld.

The rule insisted by the appellee, 'Curtis, runs counter to the general rule that, where a contract is expressly prohibited by law and the statute in terms declares the contract null and void, no recovery can be had, and the taxpayer, where money has been paid under the same, may maintain an action for its recovery when the officers charged with that duty neglect or refuse to perform it. ■ Martin v. Hodge, 47 Ark. 378, 1 S. W. 694; Wood v. Stewart, 81 Ark. 48, 98 S. W. 711; People’s Savings Bank v. Big Rock Stone & Construction Co., 81 Ark. 599, 99 S. W. 836; Eager v. Jonesboro, Lake City & Eastern Exp. Co., 103 Ark. 288, 147 S. W. 60; Tallman v. Lewis, 124 Ark. 6, 186 S. W. 296.

In People’s Savings Bank v. Big Rock, etc., Co., supra, under a statute (then § 5644 of Kirby’s Digest, now § 7716, Crawford & Moses’ Digest) which forbade the board of public affairs of a city to make any contract with any person associated in business or related to any member of the board or city council, and providing that every such contract should be null and void, it was held that a bank, of which the mayor of a city was a stockholder and president, could not take an assignment of the claim of a contractor against the city for the price of work performed by him for it. In that case, both the mayor and bank officials appeared to have acted in entire good faith, and to have intended what they did for the benefit of the city, but, because of the statute which declared such contracts null and void, no benefit might accrue to the bank, since to enforce the contract would be for “the law to aid in its own undoing.”

In the case of Tallman v. Lewis, supra, a contract was made between a board of improvement of a drainage district and one of its commissioners, and under which the services contracted for were performed and were reasonably worth the amount of the compensation allowed and collected by the commissioner. A suit was instituted by a taxpayer to recover the sums paid the commissioner, who insisted on the trial and on appeal to this court that, under the rule in Spearman v. Texarkana, Frick v. Brinkley and Smith v. Dandridge, supra, he should he allowed to retain the compensation on a quantum meruit. The statute under which the hoard of improvement of the drainage district acted did not in express terms declare contracts between the board and its members null and void, but required the .commissioners to make oath that they would not directly or indirectly be interested in any contract made by the'board. Under that state of case, we held that it amounted to an express prohibition, and that to permit a recovery upon rights growing out of such contract would in effect abrogate the statute. A statement from the case of Bank of United States v. Owens, 2 Peters 527, was there quoted with approval: “No court of justice can in its nature he made the handmaid of iniquity. Courts are instituted to carry into effect the laws of a country. How7 can they become auxiliary to the consummation of violations of law? There can be no civil right where there can be no legal remedy, and there can be no leg’al remedy for that which is of itself illegal.”

In the instant case, by the act of March 25, 1931, supra, it w7as expressly provided that “any contract wdth any member of the school board for the transportation of children, or to drive a bus, shall be null and void. ’ ’ It will be seen therefore that on and after that date the contract and the performance of it was in direct violation of the plain terms of the statute, regardless of how7 necessary and beneficial the service was to the district.

It is insisted, however, that the facts in this case distinguish it from the cases above cited, since the contract in its inception and its performance by 'Curtis was not in violation of any statutory inhibition, and therefore his services, after March 25,1931, would be referable to the time when he began to perform such services, and he ought still to recover under a quantum meruit. We cannot accept the conclusion reached by the appellee. It must be remembered that whatever right to compensation Curtis had could not be based upon the contract, for, in its very inception, it was illegal on sound grounds of public policy, and Ms right to compensation was not referable to the contract, but to the services rendered.

It seems to be the general rule that, where a contract is lawful when made and a law afterwards rendered the performance of it unlawful, the contract is to be considered at an end, and, as the statute puts an end to the contract, there can be no legal recovery, even where the services under it are performed, as it is contrary to the policy of the law to permit a party to recover for the performance of his own illegal acts. American Merc. Exch. v. Blount, 102 Me. 128, 66 Atl. 212; Endsley v. Hollingsworth, 170 Ala. 396, 54 So. 95; Odlin v. Penn. Ins. Co., 18 Fed. Cas. No. 10,433; Buffalo East Side R. Co. v. Buffalo Street R. Co., 111 N. Y. 132, 19 N. E. 63. In the last case the court said: “The fact that the agreement was made prior to the passage of the act is of no consequence. The parties to the agreement should not be deemed to have intended to cover acts which' then or thereafter, within the life of the agreement, might be declared by law to be criminal. ’ ’

There are some decisions which express the view that, where a contract is valid and not against the then existing public policy when entered into, no subsequent act of the Legislature can render it invalid, on the principle that, if a contract conformed to public policy when made, a change in that policy will not avoid it. But our research has disclosed no decision holding that, where a contract is in its inception contrary to public policy, although the subject-matter is not in itself wicked or immoral, services performed under it may be recovered for on a quantum meruit rendered after a time when, by legislative enactment, such contract is declared to be null and void. It is difficult to perceive, upon consideration of the general rule last stated, how upon any state of a case this doctrine can be sustained, for to do so would call upon courts to render nugatory a positive prohibition of a statute. This cannot be done, and appellee’s contention must fall. On the principle announced in Smith v. Dandridge, and its companion cases, the warrants issued to Curtis for his services performed prior to March 25, 1931, are the valid evidence of a just debt, and should be paid; but for the services rendered after the enact‘ment of the statute of March 25, 1931, the prayer of the appellant for an injunction, perpetually restraining the treasurer from paying the warrants evidencing those services, should be granted.

II.

On that branch of the case seeking the injunction against the payment of Mrs. Patterson’s warrants, we are of the opinion that the contention of the appellant is without merit. The reasonable inference may be drawn from the testimony that she performed her duties as teacher during the school term, except for occasional times, amounting in the aggregate to ten days, during the month of February. During these times, however, she procured a substitute teacher satisfactory to her superiors, and paid for such services with her own money. It is of no consequence what she paid this assistant per day, and the record on the whole reflects that she substantially complied with her contract, and her warrants should be paid.

It follows from the views expressed that the decree of the chancellor must be reversed, and the case remanded, with directions that a decree be entered in accordance with this opinion.


author: Hart, C. J.,

text:
    Commercial Casualty Insurance Company v. McCulley.
    Opinion delivered March 28, 1932.

      O. A. Featherston, for appellant.
    P. L. Smith, for appellee.
   Hart, C. J.,

(after stating the facts). It is earnestly insisted by counsel for the defendant that there is no liability under the terms of the policy because the plaintiff was thrown from the platform of the train on which he was riding, and because a part of his injuries were sustained by being struck by a passing automobile after the train had jerked him onto the adjacent highway.

We have copied clauses 1 and 14 under which liability is claimed in our statement of facts, and need not repeat them here. We think that a reasonable construction of the clauses referred to show liability upon the part of the- company. The plaintiff was a passenger riding in a ear of an interurban railway provided for passenger service. He had paid his passage, and, when the train stopped, walked out on the platform to observe the country. He was an able-bodied man and had a right to do this. It will be observed that he was on the platform of the car when he was thrown off by the car being started with a sudden jerk. This brought him within the terms of the policy. It did not make any difference that a part of his injuries were received by being struck by a passing automobile after he had been thrown from the platform of the car onto the adjacent highway. The proximate, cause of his injury was being thrown from the platform of the car by the sudden starting of it. Ætna Casualty & Surety Company v. Sengel, 183 Ark. 151, 35 S. W. (2d) 67.

It is next insisted that the allowance of $100' attorney’s fee was excessive. The plaintiff recovered the sum of $250. The case was tried by the circuit court sitting as a jury. It had already been tried in the justice court. The circuit court could tell from the conduct of the parties that the case would be appealed to the Supreme Court on the merits. The record shows that a motion for a new trial was filed by the company on the same day on which the case was tried, and this indicated that the court knew beforehand that the case would be appealed to the Supreme Court on the merits. While a fee of $100 is liberal for the amount recovered, we cannot say that, under the circumstances, the court abused its discretion in allowing it. If the defendant had offered to pay the amount of the judgment, then the court should have allowed a more modest fee. The statute does not make the liability of the company depend upon its refusal to pay the loss or its good faith in contesting the matter. The statute becomes a part of the contract of insurance and the fee is costs to reimburse the plaintiff for expense incurred in enforcing the contract. American Liberty Insurance Company v. Washington, 183 Ark. 497, 36 S. W. (2d) 963.

, We find no reversible error in the record, and the judgment will therefore be affirmed.


author: Smith, J.

text:
    Missouri Pacific Railroad Company v. Richardson.
    Opinion delivered March 28, 1932.

      Thos. B. Pryor and H. L. Ponder, for appellant.

      Jolm E. Miller and G. E. Tingling, for appellee.
   Smith, J.

Appellee recovered a substantial judgment to compensate an injury -which he sustained as he was walking across the .tracks of the defendant railroad company in Bald Knob, along Elm Street, which crossed the tracks, when he stepped on a small rock or piece of gravel, which caused his ankle to turn and twist his knee in such a manner as to break the cartilage in his knee cap.

We copy from the record his statement as to the manner in which he'was injured: “When I got there (at the crossing), there was a gravel train, a work extra, that was on the crossing, and they had cut, I suppose, the Main Street crossing at the old depot. After they cleared the crossing probably six or eight feet, I started across. The work train had gone in on the passing track and let the Memphis train go out on the north Y, and let it connect to the coaches going south. They were spreading ballast, I think, between Bradford and Oliphant. The work extra train began to cut the crossing and let the traffic over, and the various vehicles that had been tied up there started across. I started across, and I stepped over the first pile of 'gravel that they strowed' there, and I stepped over it, which was about eighteen inches from the rail. I got over that with my left foot, and I stepped with my right foot to get over, and .just as I started to make that step this work extra stopped. When they stopped, it created a noise, and, of course, I looked up to see what the noise was, and the car started back. I was standing between the rails, and, before I could get back and when I stepped over, I stepped on this rock.”

Appellee described the rock upon which his foot turned as “a liver shape or a kidney shape gravel, a large sized gravel.” He stated that “on the outside of the road (where he was injured) there was quite a stretch of them (gravel).” He also testified that the railroad company was using the gravel in raising its tracks* and that dump cars of two kinds were employed. One was a “center dump car,” which so opened that the gravel which it contained would be spread in the center of the track between the rails. The other was a “side dump car,” which so opened as to spread the gravel it contained on the outside of the rails.

He was asked: “How long had there been rock on that crossing?” And he answered: “At various times there would be a little in spots there, but that evening (the day of the injury) was the only time I ever seen that amount of rock there.” He was asked: “How large was this particular gravel?” and he answered: “Something like as big as my fist.”

He was interrogated in regard to a written statement he had signed relating to his injury, and, on his motion, this writing was introduced in evidence. This statement contained the recital that “This rock, in size, was something like a three-inch rock, such as would fall off a gravel train,” and the further statement that “I remember that I saw these rocks scattered along before I reached there, but the particular rock that caused my ankle to turn had rolled off a little ways from the bunch.”

Appellee had previously been employed by the railroad company for seventeen years in the bridge and building department, and was thoroughly familiar with the work in connection with which the gravel was being used.

A witness introduced by appellee testified that some of the gravel were as large as eggs, and he had noticed them along the track for a week or ten days before appellee was injured.

The cause was submitted to the jury under instructions which declared it to be the duty of the railroad company to maintain its crossing in a safe condition for use by the public. The duty of railroads in this respect has been frequently defined in numerous decisions of this court, and no useful purpose would be served by reviewing them, as the instructions appear to conform to the law thus announced.

We are of the opinion, however, that appellee’s injury was a mere accident for which the railroad company should not be held liable. The work in which the railroad company was engaged — that of spreading ballast— was both proper and necessary, and was in progress at the time of appellee’s injury, and the probability that a pedestrian would be injured by the presence of one of these small stones appears to us to be too remote to predicate a cause of action thereon.

It has been frequently stated by this and other courts that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. St. Louis, K. & S. E. R. R. Co. v. Fultz, 91 Ark. 260, 120 S. W. 984; Ultima Thule Ry. Co. v. Benton, 86 Ark. 289, 110 S. W. 1037; Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S. W. 473; St. Louis, I. M. & S. Ry. Co. v. Copeland, 113 Ark. 60, 167 S. W. 71; Miller v. M. P. Ry. Co., 9 La. App. 477, 121 So. 241; Meeks v. Graysonia, N. & A. R. R. Co., 168 Ark. 966, 272 S. W. 360.

If it be said that the jury was warranted in finding that it was negligence for the railroad company to permit particles of gravel to fall from its train, we are, nevertheless, of the opinion, that the probable injury of appellee was not a consequence which ought to have been foreseen, and there is no liability unless the testimony suffices to sustain a finding that such a consequence should have been anticipated.

In the case of Lee v. Central Railroad & Banking Co., 86 Ga. 231, 12 S. E. 307, it was said by the Supreme Court of Georgia: “It cannot be incumbent on railroad companies, or any one else, in such a world as this, to keep the whole face of the earth on which servants and employees are to execute their functions clear of every object that may cause an employee to slip up or be thrown down. Such a rule would require that farmers should keep their premises clear of corncobs; for a cob, when stepped upon, may roll under the foot and produce a fall. So of small stones, and sometimes sticks or other rubbish. ’ ’

In the case of Atchison, T. & S. F. Ry. Co. v. Calhoun, 213 U. S. 9, 29 S. Ct. 321, the Supreme Court of the United States quoted from Pollock on Torts, 8th ed., 41, as follows: “If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.”

We conclude therefore that appellee’s injury was the result of a mere accident for which the railroad company should not be held liable.

The judgment must therefore be reversed, and, as the case has been fully developed, it will be dismissed. It is so ordered.


text:
    North British & Mercantile Insurance Company v. Equitable Building & Loan Association.
    Opinion delivered March 28, 1932.

      Verne McMillen, for appellant.

      J. A. Watkins, for appellee.
   Smith, J.

Joe Selz owned a house and lot in MeG-ehee, which he mortgaged to- the Equitable Building & Loan Association, hereinafter referred to as the association. He sold the property to Daugherty, who took out a fire insurance policy in the sum of $2,500, payable to the mortgagee, the association, as its interest might appear. The history of the title to this property is not clear, but it appears that Selz was indebted to a bank in McGlehee which failed, and, when the assets of the bank were sold by the State Bank Commissioner, they included the equity of Selz in this property, which was sold to Boscher, subject to the mortgage to the association, and Boscher, for the consideration of $50, executed a quitclaim deed to the property to Mrs. "White.

Daugherty assigned the insurance policy to Boscher, who appears not to have assigned it to Mrs. White. The insurer was not advised of these transfers of the property and assignments of the policy covering it.

Default was made in the payments due the association, and a suit to foreclose its mortgage had been brought, in which all the parties above named were made defendants, and on October 25, 1930, while this suit was pending, the insured property was damaged by fire.

The association advised the insurance company of the fire, and the insurer referred the claim therefor to Scott, its adjuster, for settlement.

Several letters were exchanged and conversations had between Scott and the attorney for the association. In one of these conversations Scott expressed the opinion that the fire damage amounted from $2,200 to $2,250', but the attorney insisted that the damage was greater than the face of the policy. When this difference of opinion arose, Scott asked the attorney to have an estimate of the damage prepared. The insurer appears to have been within its contractual rights in making the demand of proof of loss. The estimate was made, and the report thereon showed a fire damage greater that the face of the policy. This proof of loss was furnished within the sixty days allowed by the policy for making settlement thereof. The insurance company does not appear thereafter ever to have denied its liability for the full amount of the policy, and appears to have been concerned only in so making payment as to discharge its liability to all claimants under the policy.

As we understand the record before us, Scott offered to make a draft payable to the association, and to all persons who had at any time owned the title to the insured property after the issuance of the insurance policy, but this was not satisfactory to the attorney. On January 2, 1931, the attorney wrote Scott a letter, which recited substantially the facts hereinabove set forth in regard to the title. It was stated in this letter that “the indebtedness of the association is far in excess of the amount of the insurance, and I hope that your insurance company will find it proper to make a check to the building association without mentioning the names of the other parties, as that would cause us to have to bring suit in order to get rid of them. I see no reason why it should be necessary to place their names on the check, as they have no interest whatever.”

Scott answered this letter under date of January 5, 1931, and the liability of the insurance company for the face of the policy was conceded and its intention to pay declared. This letter refers to the foreclosure proceeding at the time of the fire, and suggests action be taken to protect the insurance company against the claims of all parties to this proceeding. Scott, for the insurance company, expressly waived any defense against liability arising out of changes of ownership of which the com.pany had not been advised, and, by way of settlement, made the following proposition: “We can secure possibly the signatures of Mr. Roscher and Mrs. White to a draft after its issuance, but we will also have to secure their signature to a proof of loss before the draft can be issued, unless you go into court and secure a judgment and an order of the court for this money to be paid over to the Equitable Building & Loan Association. Your further advices in regard to this matter will be greatly appreciated.” There appears in the record a letter from the attorney for Mrs. White in which demand was made for $100 of the insurance money.

The attorney for the association testified that he regarded the statement of Scott that the fire damage was less than the face of the policy as a denial of liability, and that he felt under no obligation to secure the indorsements of Roscher and Mrs. White to the draft, and he thereafter brought suit in Desha County, where the insured property was located, for the face of the policy, with interest, penalty and attorney’s fee. Thereafter the insurance company proposed to file, and did file, in the Pulaski Chancery Court an interpleader’s bill, in which all persons herein named were made parties, and it was prayed that all parties be required to make proof of any interest claimed in the proceeds of the insurance policy. This bill appears to have been filed by consent, and for the reason that the matter could be disposed of at an earlier date than would be done by prosecuting the suit in Desha .County. Upon filing the interpleader’s bill in Pulaski County, the suit in Desha County was dismissed. The association filed an answer to this interpleader’s bill, in which it claimed the entire policy and prayed an assessment of penalty, interest and attorney’s fee. The amount of the policy was paid into court, and it was ordered that the same be paid to the association, and, in addition, a penalty and attorney’s fee was also allowed, together with interest, and this appeal is from the allowance of the penalty and attorney’s fee.

We think, under the facts stated, that it was error to assess a penalty and attorney’s fee. The statute allowing a penalty and attorney’s fee was not intended to cover cases such as this. There was no failure to pay within the meaning of the statute. The insurer had the right to demand proof of loss, although the adjuster had expressed the opinion that the loss was less than the face of the policy. When this proof was made, and the loss was shown to be greater than the face of the policy, the insurer admitted its full liability and offered to pay, and demanded only that it be protected in its payment against all persons claiming an interest in the policy. This demand was not unreasonable. There was a foreclosure suit pending at the time of the loss by fire, in which it was alleged that the parties thereto had or claimed such interests in the property as required them to be made parties to the foreclosure proceeding. The insurer offered, without suit, to make a check payable to all these parties for the full amount of the policy, or to pay that amount into a court before which all parties were present, and to expedite the settlement thus proposed it later brought, at its own expense, a suit for that purpose, and paid into the court the full amount of its liability. The principles announced in the cases of North State Fire Ins. Co. v. Dillard, 88 Ark. 473, 115 S. W. 154; Federal Union Surety Co. v. Flemister, 95 Ark. 389, 130 S. W. 574; and Massachusetts Bonding Ins. Co. v. Home Life & Acc. Co., 119 Ark. 102, 178 S. W. 314, apply.

Under the circumstances herein stated no penalty or attorney’s fee should have been assessed, and that portion of the decree is reversed, and that cause of action is dismissed, and the costs of this appeal will be assessed against appellee.


author: Humphreys, J.

text:
    Sadler v. Fireman's Fund Insurance Company.
    Opinion delivered March 28, 1932.

      Edward Gordon, for appellant.

      John E. Coates, Jr., for appellee.
   Humphreys, J.

Appellants brought this suit against appellee in the chancery court of Logan County, Boone-ville District, to reform fire insurance policy No. 12371, issued by it to A. L. George on October 15,1930, covering improvements on lots 20 to 26, inclusive, in block 32, in the town of Magazine, Arkansas, so as to include a loss payable clause to appellants, executors of the estate of W. V. Higgins, deceased, to whom A. L. George mortgaged said property on March 1, 1927, to secure a loan of $1,000 and interest; and to recover out of the proceeds of said policy said mortgage indebtedness with interest, the statutory penalty of twelve per centum, and a reasonable attorney’s fee. It was alleged in the complaint that the understanding between the parties was that said policy should contain a loss payable clause to appellants, executors of the estate of W. V. Higgins, deceased; and that A. L. George, as agent of appellee, negligently failed to write said policy in accordance with the agreement, understanding, and intention of the parties. It was also alleged that the improvements on the lots were totally destroyed by fire on the 30th day of November, 1930.

An answer was filed denying the material allegations of the complaint.

The cause was submitted on the pleading’s and testimony, resulting’ in a dismissal of the complaint.

The record reflects .that A. L. George borrowed the sum alleged from W. A. Higgins and executed him a mortgage on said property to secure same, and furnished him a fire insurance policy in appellee’s company which expired one year thereafter; that renewal policies were issued each year and kept in the custody of A. L. George, who told appellants that the policies contained the clause agreed upon, when in fact none of them did; that A. L. George was a soliciting agent only of appellee and with - out authority to write policies; that the extent of his authority was to solicit insurance-, send applications received to appellee’s general agent, Coates & Baines, at Little Bock, Arkansas, and to deliver the policies when issued and sent to him by the general agent, and to collect the premiums thereon; and also reflects by the weight of the evidence that A. L. George agreed to procure a policy from appellee containing a loss payable clause to appellants as their interest might appear, and that he claimed to have done so in his conversation with them; and that the improvements on said lots were totally destroyed by fire on the 30th day of November, 1930, and that the amount due under the insurance policy was paid to A. L. George, by appellee, on the 26th day of December, 1930, and by him paid to Coates & Baines in settlement of premiums he had collected on other policies.

Appellants contend for a reversal of the decree and their right to a reformation of the policy and of recovery thereunder upon the knowledge of A. L. George of the existence of the mortgage and his agreement to protect appellants as their interest might appear in the policy numbered and referred to above. This position would be tenable, had A. L. George been given authority to agree upon the terms and write policies for appellee, but no such authority was conferred upon him directly or indirectly by appellee. The undisputed evidence showed that A. L. George was merely a soliciting agent of appellee. It has been uniformly held by this court that a soliciting agent has no authority to agree upon terms to be inserted in policies or to change or modify or waive terms contained therein, and that the knowledge of a soliciting agent cannot be imputed to the company he represents. American Insurance Company v. Hampton, 54 Ark. 75, 14 S. W. 1092; Mutual Life Insurance Company v. Abbey, 76 Ark. 328, 88 S. W. 950; American Insurance Co. v. Hornbarger, 85 Ark. 337, 108 S. W. 213; Pacific Mutual Life Insurance Company v. Carter, 92 Ark. 378, 123 S. W. 384; Inter-Southern Life Insurance Company v. Holzhauer, 177 Ark. 927, 9 S. W. (2d) 26. Under the au- • thorities cited, appellee was not bound by the knowledge of A. L. George, its soliciting agent, nor by his agreement to insert in the policy a loss payable clause in favor of appellants.

No error appearing, the decree is affirmed.


text:
    United States Fidelity & Guaranty Company v. State use Arkansas Fertilizer Company.
    Opinion delivered March 28, 1932.

      John W. Stayton, for appellant.

      Culbert L. Pearce, for appellee.
   Humphreys, J.

Appellee, a creditor of the estate of S. A. Gregory, deceased, brought this suit in the name of the 'State of Arkansas for its use and benefit in the circuit court of Jackson 'County against Arthur Gregory, as administrator of said estate, and his bondsmen, the appellants herein, to recover $248.16 surcharged against the administrator’s account in the probate court, for failure to pay said amount to the administrator in succession. It was alleged in the complaint that appellee’s claim in the full amount of $509.62 was allowed and declared a fourth-class claim hy the probate court on September 3, 1921; that, on account of the indebtedness of said estate being greater than the assets, said administrator reported to the court that he could pay only 42 per cent, of claims allowed in said class, and that he was thereupon authorized and directed hy the court to pay such dividend on the claim's allowed, and to obtain and file receipts therefor; that he filed his first and final report on November 3, 1923, showing payment of the 42 per cent, dividend to all the creditors whose claims had been allowed, except appellee; that on January 2, 1924, appellee filed exceptions to the report, which were sustained, and said settlement was surcharged with $248.16 as the amount due it.

To this complaint a general demurrer was filed hy appellants, which was overruled, and, appellants saving their exceptions and standing upon their demurrer and refusing to plead further, judgment was rendered against them for the amount of the dividend, from which is this appeal.

Appéllant’s contention is that the court erred in overruling the demurrer since the complaint was fatally defective, because it did not allege that, after surcharging the settlement, the probate court ordered the administrator to pay over to the use of appellee or to the administrator in succession the sum so found due from him. Appellant overlooks the allegation in the complaint that theretofore an order had been made hy the probate court ordering the administrator to pay the creditors, including appellee, 42 per cent, of its original claim, which original claim had been allowed in the full amount of $509.62. The surcharge was the exact amount of the 42 per cent, which the court had authorized and directed the administrator to pay said appellee on September 3, 1921. It was unnecessary to repeat this order, as no change had been made in the amount hy the surcharge. This court ruled in the case of Statham v. Brooke, 140 Ark. 187, 215 S. W. 581, that an order of distribution or an order to pay over, and a failure to comply with, the order by an executor or administrator is what constitutes a breach of the administrator’s or executor’s bond, and fixes the liability on the bondsmen.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    LaSalle Fire Insurance Company v. Jenkins.
    Opinion delivered March 28, 1932.

      Buzbee, Pugh & Harrison, for appellant.

      Sam E. Montgomery and Verne McMillen, for appellee.
   Kirby, J.

The only question for determination here is whether the statute allowing recovery of penalty and attorney’s fee for loss under a fire insurance policy is applicable to the case at bar, in which an automobile was destroyed by fire, the policy herein insuring said automobile against damage or loss by fire.

Suit was brought for damages for destruction by fire of an automobile belonging to appellee, which had been insured by appellant company, and judgment was rendered for the amount sued for with a 12 per cent, penalty and an attorney’s fee of $100.

It is contended for reversal that the statute has no application to such a loss as that complained of here, but only to nsnal losses by fire under ordinary fire insurance policies, and that this is rather automobile insurance than regular fire insurance.

The statute, § 6155, Crawford & Moses’ Digest, provides: “In all cases where loss occurs, and the fire, life, health, or accident insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve per cent, damages upon the amount of such loss, together with all reasonable attorney’s fees for the prosecution and collection of said loss; said attorney’s fees to be taxed by the court where the same is heard on original action, by appeal or otherwise, and to be taxed up as a part of the costs therein and collected as other costs are, or may be, by law collected. ’ ’

The appellant, the LaSalle Fire Insurance Company, is obviously a fire insurance company in name, and certainly its policy insures against the perils specified therein, defined as follows:

“F. Fire, Lightning and Transportation:
“ (a) Fire, arising from any cause whatsoever; and lightning. ”

The penalty and attorneys’ fees are allowed to be recovered under the statute where the fire, life or accident insurance company liable therefor fails to pay after a loss occurs and demand made within the time specified in the policy. No form of policy for fire insurance is specified in our statutes, and, even though the company issuing the policy was not named a fire insurance company, it would be none the less a fire insurance company if it issued policies of fire insurance upon property insuring against loss by fire, etc., and, as such, came within the provision of the statute, without regard to whether it wrote fire insurance exclusively or whether writing fire insurance was its principal business. In other words, if it insures property against loss by fire, it is a fire insurance company within the meaning of said statute.

The statute has been held uot to apply to the recovery of a loss by cyclone in Home Fire Ins. Co. v. Stancell, 94 Ark. 578, 127 S. W. 966, or for loss by theft of an automobile under a policy issued by a fire insurance company in National Union Fire Ins. Co. v. Crabtree, 151 Ark. 561, 237 S. W. 97. In National Union Fire Ins. Co. v. Henry, 181 Ark. 637, 27 S. W. (2d) 786, the recovery of penalty and attorney’s fees, •where the suit was brought on “tornado policy,” was denied.

The statute is highly penal, and should not be held to apply to any loss or company that is not therein expressly named, as already said by this court. But this hazard was expressly insured against by a fire insurance company, and the loss having occurred and not having been paid within the time specified in the policy after demand made therefor, the company was liable, of course, to the payment of the penalty and attorneys’ fees prescribed by the statute.

The Arizona case relied on in appellant’s brief, Penn. Fire Ins. Co. v. Johnson, 28 Ariz. 448, 237 Pac. 635, holding otherwise, does not seem to be- based on sound reasoning and construed a statute of that State in conjunction with a specified form of policy provided for by law, and is without value in determining the question here.

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


author: -Mehaffy, J.

text:
    Metz v. Melton Coal Company.
    Opinion delivered March 28, 1932.

      Starbird $ Starbird, for appellant.

      Pryor $ Pryor, for appellee.
   -Mehaffy, J.

On April 12, 1928, a decree was rendered by the chancellor in vacation, and was filed with the clerk of the Franklin Chancery Court on April 16, 1928. The decree was in favor of the defendant, appellant here. At the same term of court there was an application filed to set aside the decree rendered by the chancellor on April 12th.

On April 6th, the chancellor had set the’ case for trial on the 12th and directed notice to be served on the plaintiff, or his attorneys. Mr. 'Grant, attorney for the defendant, wrote to Mr. Williams, attorney for plaintiff, at Ozark. Mr. Williams had lived at Ozark, but had moved from there, and testified that he never received the letter.

The chancellor heard the evidence of the defendant on the 12th, and rendered a default judgment.

Mr. G-rant, having written to the attorney for the plaintiff, the court supposed that the notice had been received, and proceeded to hear the evidence of the defendant, and rendered judgment for the defendant and against the plaintiff for $450, and the application was to set aside this default judgment.

The parties entered into the following stipulations:

“Stipulation.
“It is agreed and stipulated by and between G-. L. G-rant, attorney for defendant, Carl Metz, and Pryor, Miles & Pryor, attorneys for Melton Coal Company, plaintiff, that the application to set aside default judgment filed by the plaintiff herein, upon motion of the defendant, be continued until the next term of the court, or to be heard in vacation upon a date to be agreed upon by the parties, and that no execution, garnishment or other process is to be issued upon the judgment rendered in favor of the defendant in the above cause against the plaintiff until after the hearing of the application to set aside judgment filed by the plaintiff herein, said continuance to be granted upon the motion of the defendant in the above court on account of the absence from the State of the attorney for the defendant.
“Witness our hands, this 7th day of July, 1928.
“Pryor, Miles & Pryor,
“Attorneys for Plaintiff.
“G-. L. Grant,
“Attorney for Defendant.
“Filed July 9, 1928. .Vint Addy, Clerk.”
‘ ‘ Stipulation.
“It is stipulated by and between plaintiff and defendant in this case that the motion to set aside the default judgment in this case may be continued, and that it may be heard by agreement at chambers in Fort Smith, if the chancellor will hear it there, and that all right to question the right of the chancellor to set the judgment aside because it had become final is waived. In other words, the parties here agree to waive any question of the intervention of the term of court.
“Pryor, Miles & Pryor,
“Attorneys for Plaintiff.
“G. L. Grant,
“Attorney for Defendant.
“Filed December 3-, 1928. Vint Addy, Clerk.”
Stipulation.
“It is hereby stipulated and agreed between the parties to this suit and their attorneys that this cause may be submitted at this term of the court and the evidence introduced before tbe chancellor in vacation at Fort Smith at any time before the............day of.............................., 1929, and a decree entered by him after hearing said evidence.
“This the 8th day of July, 1929.
“Pryor, Miles & Pryor,
“Attorneys for Plaintiff.
“G. L. Grant,
“Attorney for Defendant.
“Filed July 8, 1929. J. E.' Yates, Clerk.”
‘ ‘ Stipulation.
“It is agreed and stipulated by and between Pryor, Miles & Pryor, attorneys for the plaintiff, and G. L. Grant, attorney for the defendant, that the above cause may be submitted to the Honorable J. V. Bourland, Chancellor, at chambers, in the city of Fort Smith, Arkansas, on December 14, 1929, in accordance with the stipulation herein entered by and between the parties hereto.
“Witness our hands on this the 30th day of November, 1929.
“Pryor, Miles & Pryor,
“Attorneys for the Plaintiff.
“ G. L. Grant,
“Attorney for the Defendant.
“Filed December 2, 1929. J. E. Yates, Clerk.”

These stipulations were filed in the Franklin Chancery Court. The Honorable J. V. Bourland was chancellor at the time the default decree was entered, and the Honorable C. M. Wofford succeeded Judge Bourland, and was chancellor at the time the decree was entered setting aside the default judgment. The decree setting aside the default judgment was rendered on September 17, 1931.

The decree recited that, the parties having agreed in open court to finish the trial before the chancellor at chambers, in Van Burén, Arkansas, the plaintiff appeared by its solicitors, J. P. Clayton and Pryor & Pryor, and, the defendant appearing by his solicitors, Starbird & Starbird, the trial proceeded upon oral testimony, and the chancellor, having heard the oral and documentary evidence, and the whole record, as well as the argument of counsel, and being fully advised in the premises, doth find for the plaintiff, and doth further find that the .judgment rendered herein on April 12, 1928, ought' to be set aside and held for naught, and the plaintiff allowed a trial in the case.

The original case was set for a hearing before the chancellor in vacation on April 6, but the place of the hearing was not designated, and the plaintiff’s attorney did not know that the time had been fixed.

On April 6th, the defendant’s attorney appeared, but the plaintiff’s attorney did not appear, and the chancellor ordered the case set down for hearing on April 12th, and directed that the plaintiff’s attorney be notified.

-. At the beginning of the case Mr. Williams was attorney for plaintiff, and Mr. Partain was attorney for defendant. On April 6, the time set for the hearing, Mr. Grant appeared for the defendant, and he wrote and mailed a letter to Mr. Williams, attorney for the plaintiff, at Ozark. Mr. Williams had lived at Ozark, but had moved to Clarksville, and he testified he had never received the letter from Mr. Grant, and never heard of it until after judgment and execution. Pryor, Miles & Pryor became attorneys for the plaintiff, and Starbird & Starbird, attorneys for the defendant.

Judgment by default was rendered on April 12, against the plaintiff for $450, and was filed with the clerk on April 16. At the same term of court that the judgment was rendered and filed, the attorneys for the plaintiff filed an application to set aside the default judgment, and the stipulations above set out were entered into and filed in court.

Appellant first contends that the decree of the chancellor setting aside the default judgment is not supported by a preponderance of the evidence. It is true that the record entry shows that the case was set down for April 6th, but it wa.s not tried on April 6th, but was postponed by the chancellor until the 12th, and notice directed to be given the plaintiff’s attorney. The evidence shows that Mr. Grant wrote a letter to plaintiff’s attorney, advising him that the case would be tried on the 12th, but the evidence does not show, and the court did not find, that Mr. Williams ever received this notice.

It is contended that the evidence on the part of the defendant is positive, and that on the part of the plaintiff is negative. The evidence on the part of the plaintiff, however, is as positive as the evidence for the defendant.

It is next contended by the appellant that the proceeding to vacate the judgment is not authorized by law; that the proceeding should have been by a complaint verified by affidavit, as provided for in §§ 6292 and 6293 of Crawford & Moses’ Digest.

This is not a proceeding under above sections of the digest, but is a motion or application filed at the same term of court the judgment was rendered, to set aside' a default judgment.

It has been settled by numerous decisions of this court that a motion to set aside a default judgment at the judgment term is not an independent action, and, when set aside, does not determine the rights of the parties. It leaves the case in the condition it was before the default .judgment was rendered, with an opportunity to try the case upon its merits. Democrat P. & L. Co. v. Van Buren County, 184 Ark. 972, 43 S. W. 1075; Hawkeye Tire & Rubber Co. v. McFarlin, 146 Ark. 491, 225 S. W. 632; Wells-Fargo & Co. v. W. B. Baker Lumber Co., 107 Ark. 415, 155 S. W. 122.

This court has many times held that the trial court may, during the term, vacate its judgment, and that it might do so without notice.

This judgment, however, setting aside the default judgment, was not rendered at the same term of court. The application to set it aside was filed in the same term of court, and it was agreed that it might be tried thereafter in vacation.

In a case note in GO Ana. St. Rep., 639-640, it is stated: “After the lapse of the term at which the judgment is rendered, the power of the court to vacate it on motion is much more restricted than during the term, though we believe no rule can be formulated which will everywhere be recognized as correct, prescribing the precise limits of this power. * * * So during the term notice of an application to vacate a judgment may be given, and it may be granted afterward. There is some conflict of authority upon the subject, but we believe that where a motion is made to vacate a judgment, or notice of such motion is given, within the time in which the court has power to grant it, it is not indispensable that it be disposed of within the term, and therefore that an order vacating a judgment after the term or after the time specified in some statute is neither erroneous nor void, if the motion therefor was made in due time.” Authorities are cited in the case note, supporting the rule above announced.

It is true that this court has many times held that a judgment rendered at one term of court cannot be set aside at a future term of court, and the case again determined, and it cannot be set aside at a future term by consent of parties, where the court is not authorized to act in the absence of such consent, because consent cannot confer jurisdiction.

Our statute, however, expressly provides that a chancellor may deliver opinions and may make and sign decrees in vacation in causes taken under advisement by him at a term of the court, and he may do this by the consent of the parties or their solicitors of record, and when this is done the decree has the same force and effect as if done in term time, and appeals may be taken from decrees rendered in vacation. Crawford & Moses’ Digest, § 2190.

This section has been construed by this court, and it has been expressly held that this section authorizes the setting aside of a decree after the term where the application is made during the term. This court said, in construing the above section: “The court had .jurisdiction to hear and determine the second petition of the appellees to set aside the sale of June 12,1925. Although a former petition to that effect had been filed and overruled, this second petition was filed at an adjourned day of the same term of court and on the last day of the adjourned term. The issue was joined by the appellees on this petition, and a hearing thereon was had by consent in vacation. The decree from which this appeal comes so recites. Authority for such procedure is found in § 2190 of Crawford & Moses’ Digest. See also Bickle v. Turner, 133 Ark. 536, 202 S. W. 703; Davis v. Sparks, 135 Ark. 412, 205 S. W. 803. The court had not adjourned sine die at the time the second petition to vacate the sale was filed, and, even though such petition was filed on the last day of the adjourned term, that was sufficient to give the court jurisdiction to hear and determine the issue joined on such petition, and the statute above confers upon the chancellor authority to try causes by consent of parties and to render decrees in vacation.” Wofford v. Young, 173 Ark. 802, 293 S. W. 725.

The application in the instant case was filed at the same term of court, the issue was joined by appellant on this petition, and a hearing thereon was had by consent in vacation. The section above referred to says that the decree in such cases shall have the same force and effect as if made, entered, and recorded in term time.

If this decree had been entered in term time, when the application was filed, it would have left the case in the condition it was before the default judgment was rendered, April 12, with an opportunity to try the case upon its merits, and since, under our statute, the decree rendered in vacation has the same effect, the setting aside of the default judgment by the chancellor left the parties in the same situation they were in before any .judgment was ever rendered. They can therefore proceed with the trial of the case as if no judgment had been rendered on April 12,1928, and, as we held in Democrat P. & L. Co. v. Van Buren County, supra, no appeal could be taken from this judgment.

The decree of the chancery court is affirmed.


author: McHaney, J.

text:
    Cook v. Barber.
    Opinion delivered March 28, 1932.

      Culbert L. Pearce, for appellant.

      John E. Miller and C. E. Tingling, for appellee.
   McHaney, J.

On March 23, 1931, appellant sued appellee in unlawful detainer, alleging that she was the owner and entitled to immediate possession of a certain house and lot in McRae, Arkansas; that appellee rightfully entered into the possession of said lot under an oral rental contract with her and her husband, but wrongfully refused to pay the rent or surrender possession,, and that she is holding over without authority and with force; that due notice and demand in writing had been made for the possession thereof, which was refused; and that the rental value was $15 per month. She prayfed judgment for $50 damages and $15 per month for rent from February 1, 1931. At the same time appellant filed bond to obtain immediate possession, which was approved, and writ of possession was issued and served. Appellee filed bond for a like sum to retain possession, with R. L. Ernest as surety, which was approved and accepted. Thereafter appellee filed an answer, denying all the material allegations of the complaint, but alleged in addition that she had rented the property from appellant and her husband and had paid the rent in advance to June, 1931, at which time she had vacated the property. On July 24, 1931, appellant filed an amended complaint, in which she alleged, in addition to the matters set out in the original complaint, that she had left her household and kitchen furniture in the building rented by appellee for her use, and that, while the property was in her possession same was destroyed by fire. She prayed damages, in addition to the rent, in the sum of $375 for the personal property destroyed by fire.

On a trial the jury found in appellant’s favor for the sum of $260 damages to the personal property and $40 for rent. No judgment was entered on the overruling of the motion for a new trial, but thereafter, on September 5, 1931, the court entered a judgment nunc pro tunc against appellee in the sum of $260' for damages to the personal property and $40 for rent, making a total of $300, but against her bondsman for the sum of $40 only, the amount of the .judgment for rent, and refused to enter judgment against him for the $260 damages to the personal property. Appellant excepted to the refusal of the court to enter judgment against the bond in the sum of $260, and has appealed from that judgment.

Appellant filed no motion for a new trial, and there is no bill of exceptions in the record. The only question presented is the liability of Mr. Ernest as surety on appellee’s bond to retain possession for the destruction of the personal property by fire while in her possession. Said bond is conditioned as provided by law as follows: “Now, if the said Opal F. Cook shall recover judgment for the possession of said property in said action, and the said Lynn Barber shall deliver possession thereof to said Opal F. Cook, and shall satisfy any judgment rendered against her therein, then this bond to be void; otherwise, to remain in full force and effect.”

We think the court correctly construed the bond not to be bound for the payment of the judgment rendered in excess of the rent. While it provides that he “shall satisfy any judgment rendered against her therein,” this means that he shall satisfy any judgment covering the rental value of the property and any damages accruing to appellant by virtue of the unlawful possession. There would be no more reason for holding the bond liable for the destruction of the personal property than there would be for the destruction of the house. The statute, § 4847, Crawford & Moses’ Digest, does not contemplate that the bond shall be liable for the destruction of the property by act of Grod or other cause not due to the negligence of the principal. Moreover, the bond was given long before the property was destroyed and was not in the contemplation of the parties. Compare Lacy v. London, 89 Ark. 250, 116 S. W. 207; Brooks v. Buie, 71 Ark. 44, 70 S. W. 464.

In Turner v. Vaughan, 152 Ark. 475, 238 S. W. 1059, we said: “We find no authority for holding that mere wrongful occupancy of premises infers liability for injury that may occur from any causes during the period of such occupancy. There must be some relation between the wrongful detention and the loss or injury which occurred during that period. Unless the loss occurs through some negligent or wilful act or omission of the wrongdoer, there is no causal connection between the wrongful act and the injuries to constitute one the proximate cause of the other. It has been held that in actions of ejectment for the wrongful detention of property only such damages to the freehold itself are recoverable which amount to waste.”

So here there must be some relation between the wrongful detention and the damages appellant may recover therefor. No such relation is shown to exist in this case, and appellant was not entitled to recover against the bond for such damages. We do not mean to say that the judgment against appellee was 'proper, as she has not appealed, but appellant is in no position to complain because she obtained relief to which she might not be entitled.

We find no error, and the judgment is affirmed.


text:
    Century Life Insurance Company v. Brooks.
    Opinion delivered March 28, 1932.

      J. D. Shackleford, for appellant.

      Felix L. Smith, for appellee.
   Butler, J.

Suit was brought in the municipal court of Hot Springs by the appellee against the appellant to recover on two insurance policies issued by the appellant on the life of Elnore Brooks, appellee being the beneficiary named in the policies. The appellee recovered judgment in that court on June 17,1931, and on the same day the appellant filed its motion and bond for an appeal to the circuit court. The transcript of the proceedings in the municipal court was not lodged in the circuit court until October 30, 1931. A motion to dismiss the appeal was filed, and, upon hearing, the court sustained the motion and dismissed the appeal. The action of the court in this respect is here for review.

The suit was brought in the municipal court under act No. 2 of the Acts of 1917, creating the municipal court in and for Garland County, which act, by § 7, provided that appeals from the municipal court should be taken and the transcripts of appeal lodged in the office of the clerk of the circuit court within thirty days after judgment was rendered, and not thereafter; and by § 8 of said act, the general laws relating to procedure in justices of the peace courts, not inconsistent with the provisions of the act or of the general laws, should apply to proceedings in the municipal court.

One of the prerequisites for an appeal is that the applicant, or some person for him, shall make and file an affidavit that the appeal is not táken for the purpose of delay, hut that justice maybe done him. No such affidavit was made, and the court properly. dismissed the appeal. Merrill v. Johnson, 19 Ark. 647; Middleton v. Clardy, 166 Ark. 342.

The judgment is affirmed.