text:
    Great Atlantic & Pacific Tea Company v. Gwilliams.
    4-3579 and 4-3580
    Opinion delivered November 19, 1934.

      King, Mahaffey, Wheeler S Bryson, for appellant.

      Garrigam & Monroe, for appellees.
   Baker, J.

These two cases were consolidated for the purpose of trial, resulting in judgments for the plaintiff, Norma Jean Gwilliams, a minor, by Eva Gwilliams, her next friend, and the plaintiff, Bobby Joyce Gwilliams, a minor, by R. L. Gwilliams, her next friend, and from these judgments in favor of plaintiffs, defendant, the Great Atlantic & Pacific Tea Company has appealed. A very short statement of the pleadings will suffice in these cases, as the facts will be set forth somewhat at length. The reason for so doing is that the sole question to be determined in each case is whether the facts, as proved, are such as to justify the judgments rendered.

The complaint in each case alleges that the servants and employees in charge of the retail grocery store at Hope sold to R. T. Gwilliams, the grandfather of the two children, some cheese; that at the time of the purchase, Gwilliams asked for a pound of cheese that would be fresh, wholesome and nutritious, when in fact such cheese was, at the time of the sale, spoiled, contaminated and poison, and wholly unfit for human consumption, and that the servants and employees knew at the time of the sale of the cheese, or should have known, in the exercise of ordinary care that said cheese was spoiled, contaminated and unfit for human consumption; that it was not fresh, wholesome and nutritious as represented; that the appellant failed to exercise ordinary care in properly keeping and preserving the cheese.

That the two appellees, who ate some of the cheese, suffered from ptomaine poisoning for weeks, and that the health of each of them was permanently impaired, etc.

The evidence offered was to the effect that R. T. Gwilliams, his wife, his daughter, Eva Gwilliams, and her daughter, Norma Jean Gwilliams, about sixteen months old, drove from their home, about five miles, to Hope, at which place just before leaving for their home, R. T. Gwilliams purchased from the appellant a pound of cheese; that Mr. Gwilliams asked Mr. Daniels, who sold him the cheese, if he had some good cheese, and that the latter replied, “Yes, I have some good cheese”; that he then told Mr. Daniels to cut off a pound, which was wrapped by Daniels in paper; that Daniels cut the cheese with a butcher knife; that the purchase was made about 12 o ’clock on Monday. Gwilliams and his family ate some of the cheese on the road to their home. Norma Jean Gwilliams, about sixteen months old, was given some of the cheese. After reaching the home Bobby Joyce Gwilliams, another grandchild, about three years old, who lived a short distance away, came to the house of the grandfather about 3 o’clock in the afternoon, and the two children ate what was then left of the cheese; that about 6 o’clock in the afternoon Bobby Joyce Gwilliams was taken ill; was picked up by the grandmother, and was apparently very sick. Her father came for her and took her home fifteen or twenty minutes later. The other child, Norma Jean Gwilliams, was taken ill, and just as they were about to eat supper she commenced to vomit, as had the older child, Bobby Joyce. An examination of the vomit disclosed undigested portions or small particles of the cheese. Dr. Hilton was sent for and came about' two hours later and treated the children. They soon recovered from the violence of the attack. The wife and daughter ate some of the cheese and complained that it made their throats sore. The children have not been well since they ate the cheese, have not grown, although it has been a year since the cheese was eaten by them. Prior to that time they were healthy and strong. The health of both has been impaired. Gwilliams further testified on cross-examination that he lived about five and one-lialf miles from Hope; that he got to Hope about 10 o ’clock and went in a wagon; that they had breakfast that morning before they left home; doesn’t remember what the baby, Norma Jean, had for breakfast; was in Hope about two hours before the purchase of the cheese. His wife had bought some crackers, only ate them when he bought the cheese. He saw the cheese and paid little attention to it. It looked all right. Didn’t know about it being fresh because they didn’t examine it. The piece of cheese was cut from a larger piece weighing five or six pounds. At the time the cheese was given to the baby, he didn’t suppose he paid any attention to it, he was driving and didn’t look around. His wife ate a little bit, and he ate a little bit himself as they were going home; that he ate some crackers; that when he got home he had dinner, didn’t recollect what they had; didn’t think the baby ate that day; that it was still nursing and ate very little at any time; that Bobby Joyce had eaten dinner at home before she came there; it was about 3 o ’clock when the children ate the cheese at witness’ home. They were on the back gallery or in the kitchen. Perhaps they went out in the yard before they ate it. They were given what they wanted of it; didn’t know how much Norma Jean ate, but saw her eat it, but she had a very little bit on the way home from Hope; wasn’t certain whether or not she ate dinner.

Mrs. Etta Gwilliams testified that she was the grandmother of the children, and also testified substantially to the same facts that her husband had related, stating, however, somewhat more definitely the fact that the small child, Norma Jean, ate a very small portion of the cheese on the way home, and that they arrived there about 2:30 or 3 o’clock; that the cheese was eaten because of the fact that they knew they would get hungry before they got home; that Bobby Joyce and Norma Jean both ate of the cheese after they reached home. The witness cut a piece or two and divided it for the children, and they ate it. There was not a great deal left when they got home. She' further testified that they did not have crackers, but she had bought two packages of light bread rolls or biscuits; that Norma Jean ate a little of this bread before they reached home; that she unwrapped the cheese, and didn’t see anything wrong with it. If she had, she would not have eaten it. It looked nice and tasted all right, though she said she paid but little attention to it; that at the time she divided the cheese for the children, she unwrapped it, and there was not a great deal of it left; that she split a big piece of cheese in two and gave a piece to each child. The piece given to the little baby was not very large.- Bobby Joyce did not eat dinner at their house, because she had eaten her dinner at home. The witness testified that she herself had eaten somewhat more of the cheese than the others, and at about 3 o’clock her mouth felt like it was scalded, and that she got sick at her stomach.

Eva Gwilliams testified that she was the mother of Norma Jean, and that they left Hope between 11 and 12' o’clock, or about noon; that her father had bought the cheese, and they all ate of the cheese as they were going home; that they made the trip in a wagon. She said they began tasting the cheese right after they got out of town; that she fed her baby, but didn’t feed it very much, just a little piece. It didn’t eat very much. She also said that they did not eat when they got home, or until they fixed supper, but that the children ate some of the cheese. She testified further that she was made sick; that her throat got sore, and that she ate only a small piece of the cheese. Oh the trip home they didn’t have any knife to cut the cheese with, but broke it off with their fingers and ate it; that the cheese looked all right and tasted like other cheese; that she never ate anything but nice fresh cheese, and that this cheese looked nice and fresh; that she wouldn’t have given it to the baby if it hadn’t looked that way; that they gave to the babies three crackers apiece, and they ate the crackers with the cheese; that she and her mother got sick about the same time.

Dr. Hilton, the physician who was called to treat the children, testified that he found the children to be nauseated and vomiting and suffering from dizziness, that they had turned purple and looked and acted like they had symptoms of the cramps; that after the little girl had vomited she would drop off in a comatose or sleepy condition; that her heart was irregular; that he didn’t make a chemical examination of the substances seen by him which the children had vomited; that all he saw was film or phlegm with little pieces of cheese; that the children’s mouths and throats were corroded; that this condition was attributable to poison; that it was his opinion that the cause of this corroded condition was ptomaine poison caused from the cheese, if-that was all that was eaten.

Dr. Martindale also testified that he treated the children; that they had been taken sick, and some days later they were brought to his office; that he examined them and found that they had sore mouths and tongues; that their throats were irritated and tender, gums swollen and throat very sore; stomachs bloated. It was his opinion that ptomaine poison caused the condition. He also said that cheese was not the best food for very young people, but, if good, cheese was not apt to set up irritation of the stomach, such as these children suffered.

Dr. Joe Ellis Tyson, on behalf of the appellant, testified that young people are unable to assimilate cheese; that the digestive secretions are not able to break it down; that this fact brings on the vomiting and symptoms similar to those from which the children suffered, except that he does not say that this would cause the corroded condition of the mouth and gums, as testified by Dr. Hilton. He testified further that he would not necessarily attribute a condition of that kind to anything being wrong with the cheese. He did testify that ptomaine poison is due to the intake of decomposed food protein. If some of it should get on cheese, it would poison.

Mr. Daniels testified that he was with the Atlantic & Pacific Company, and that he remembered the occasion of selling Mr. Gwilliamsi cheese, about the 17th of April. His attention was first called to it four or five days later when Mr. Gwilliams made complaint to him about it. This cheese was cut from a hoop of the Wisconsin Daisy Cheese. He had been selling this cheese ever since he had been with the company, about three years. They sold about three times as much of that as they did the other varieties of cheese; that the amount, however, would vary with the season of the year. Ordinarily about the spring of the year they would handle about four hoops a week. This was sent to their place from Dallas by commercial track. The cheese came in a wooden hoop or box; that the cake of cheese had a covering on it. There was a very thin piece of wood which was on the top and bottom inside the box, then there was cheese cloth. The cake of cheese was entirely inclosed with the cloth; that the particular hoop from which Mr. Gwilliams bought his cheese came to the store Thursday before the sale, which occurred on Monday following. When cheese was received, it first went into the big cooler, and then to the serving counter or display case; that the display case had several doors to it, with packing around the doors to hold the refrigeration; that the temperature maintained in it, and in the big box was from 34 to 36, or 37 degrees. They kept meat in the display case. Some of it was cut up ready to serve. It was kept both ways. They kept beef, pork and cured meat and cold meat, and on week-ends they kept fish in it; that he got this hoop of cheese out of the big box and commenced to sell off of it on Monday. It had been kept in the other box until Monday. He took the cheese out of the hoop and cut it half in two, and then quartered it, and usually put three pieces back in the big cooler, or the big box, and a quarter in the display counter. He had had experience with cheese, and this was all right, as far as he could tell. It appeared to be in proper condition. He thought he sold to Mr. Gwilliams from the first quarter placed in the counter. He looked at the piece he cut off. It looked and appeared to be all right, did not see anything wrong with it. It looked like the cheese he sold every day. All of it looks very much alike. He kept the knives and display case, and other places clean. On Monday the big box, the large cooler box, was washed, hooks inside of the box were washed each Monday. The rest of the market was washed from day to day through the week. The big box was washed one day a week. The display counter was washed on Saturday night after closing business, and at such times through the week as was found necessary; thought he had always had the reputation of keeping the place clean. They considered it the best part of the business, and had comments on the cleanliness of the market; tried at all times to keep the market clean; that they did not keep any putrefied or spoiled meat in the display case, or any other place. As to knives, they were washed, towels were kept in the market to keep the knives clean; that he cut this piece of cheese for Mr. Gwilliams with a knife, and, going by their habit in things like that, they usually wipe the knife whenever they get ready to use it; that he had not been cutting any spoiled meat with that knife, or cutting anything that was putrid in any way; tried to keep their hands and persons perfectly clean, and when he handled this cheese his hands were clean. He continued to sell that whole block of cheese; sold the whole hoop to his regular customers, and he had quite a few customers there in the city of Hope and surrounding' country. He had no complaint about the cheese, except what Mr. Gwilliams was alleged to have made.

On cross-examination, he repeated much he had already stated, and in addition some other facts. He had cut some meat with that knife. He put the cheese on the meat block, and cut the cheese on the meat block, and put it in the case; kept a light on the inside of the case; that he kept steak in there, and fish on the week-end; they kept practically everything in there, except ground meat. Perhaps would not have remembered the particular sale if Mr. Gwilliams had not come back and called his attention to it. The cheese had been shipped to Hope by commercial truck covered by tarpaulin with no refrigeration.

The completeness of this statement as to all detail is made necessary for the reason that these two suits were prosecuted upon the theory that the appellant had been guilty of negligence, by reason of which the injuries or illness of the children followed.

The appellant earnestly contended that the appellees in these cases have failed to discharge the burden placed upon them to prove negligence resulting in the alleged injuries. No question is raised as to the competency of any evidence or as to any error in the instructions, except that appellant contends that the court should have directed the verdict for the appellant.

For the purpose of this opinion we treat the facts as being sufficient to show that the children suffered from ptomaine poison, occasioned by active putrefactive agencies. The condition of the children was serious. According to the evidence, a very small bit of this poison may become very violent and active, quickly impairing the health, if not endangering the life, of the unfortunate victim who happens to eat food contaminated by it.

The briefs have been carefully studied, other investigation has been made of authorities. We agree with counsel for appellees as to the correct rule announced in the ease of Heinemann v. Barfield, 136 Ark. 456, 207 S. W. 58, as follows: “The duty which a retail seller of food for immediate consumption owes to his customers is succinctly and correctly stated in Ruling Case Law, as follows: ‘Persons who engage in the business of furnishing food for consumption by man are bound to exercise care and prudence respecting the fitness of the article furnished, and they may be held liable in damages if, by reason of any negligence on their part, corrupt or unwholesome provisions are sold and persons are made ill thereby.’ 11 R. O. L. 1118, and cases cited in note. Actionable negligence in such cases is the failure to exercise such care as a man of ordinary prudence would exercise under the same circumstances to prevent injury and damage to his customers by the sale of articles which he knows are bought by them for immediate use as food.”

The theory now is that, in the handling or sale of standard packaged goods, inspection is not required, expected, or anticipated of the dealer. Such inspections could not be made, in most instances without destroying or damaging package protective coverings.

In the case of Coca-Cola Bottling Co. v. Swilling, 186 Ark. 1149, 1153, 57 S. W. (2d) 1029, this court said: “ ‘The retailer owes to the consumer the duty to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of the care, skill and experience of dealers in such products generally. This is the measure of the retailer’s duty, and, if he has discharged it, he should not be mulcted in damages because injuries may be produced by unwholesomeness of the goods. As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter. ’ The annotated cases cited in the notes to the text quoted appear to sustain the text.”

The retail dealer is not a guarantor, and this case is not founded upon that theory, but he is charged with the exercise of ordinary care to sell sound and wholesome products, meaning that degree of care necessary for the protection of customers against impurities or contamination that might ordinarily be discoverable by any usual or ordinary tests. This cannot mean, however, that the retail dealer must make or apply such tests as would in every case operate to insure absolute safety. Hidden or concealed imperfections or contaminations might require microscopical tests or chemical analysis for their discovery. Under present conditions, such requirement would prove so burdensome that many articles in ordinary use could not be handled by the ordinary dealer, and consumers would be denied the right to buy such products. In other words, such a test, if applied under the ordinary conditions, would be equal to requiring the dealer to become an insurer of the absolute perfection of the commodity sold. The test should not be higher than that commonly or usually practiced by careful dealers under the same conditions and circumstances, which is at least as high as the consumer expects, or has the right to expect of his groceryman or food dealer.

The essential facts in this case are not in dispute. Daniels remembers that Mr. Gwilliams called upon him a few days after the cheese had been sold to him, and made complaint of its unsoundness or unwholesomeness, and this called to his mind the incident of the purchase, and he is practically sure that this was the first piece cut by him from the quarter that he had put in the display counter. He says that he examined it at the time he cut it; that there was nothing wrong with it that was apparent. No doubt he would not have hesitated to send this particular cut of cheese to his own home for consumption by his own family.

It is urged, however, that he cut it upon the meat block where meats were cut, and where fish was probably sometimes cut, and that he used a knife which was sometimes used, or which may have at all times been used, to cut meat; that the contamination might have come from the contact of the cheese with the block, or its contact with the knife. That could be true, but this is within the realm of speculation and conjecture. This contamination might also have come from the paper with which it was wrapped. It is also just as probable that it may have come from contact with the hands of those who later carried it, opened it while upon the road home. Mrs. Grwilliams and her daughter both handled the cheese. They could observe its quality, its purity, its apparent freedom from contamination, and the matter need not be argued that, if it had had any appearance of being contaminated or unwholesome, these good people would not have given this food to the children who suffered from it. They had gone to town in a wagon, had no doubt used their hands in climbing in and out of the wagon. Childrens hands are frequently not clean when not at home under the attentive care of those charged with the duty of their protection, and still, as a matter of speculation or conjecture, it may be that the children’s hands were not wholly free from contaminating- conditions. All of these matters are' set forth, not as being true conditions, which prevailed, but as tending to show the danger of speculation in ordeb to determine, without evidence, the means whereby the cheese had become unsound or unwholesome for human food.

It is argued in the brief of appellees that the cheese had been shipped by commercial truck from Texarkana to Hope, that it may have thus become contaminated. If so, and this fact of such contamination was not discoverable by the exercise of ordinary care, then the negligence was that of another party and not of the appellant here. To hold otherwise would be to hold the appellant as an insurer of the wholesome condition of the food. It will be remembered that tbe appellant was a dealer and not a manufactnrer; that it had handled the same brand of cheese for a long period, and that the cheese had always been found to be wholesome and sound, and that no other part of this same hoop of cheese had been found to be unsound, and the fact that a small particle thereof may have been unwholesome, when that condition was not discoverable in the exercise of ordinary care, would be insufficient to justify a determination by us that plaintiffs need not prove negligence either directly or inferentially by circumstances. Daniel’s statement was not inconsistent or in conflict with other testimony; it was not unbelievable or unreasonable.

Daniel says that the market was kept clean. The knives were clean, and the}*- kept no putrid meats. They kept their hands and persons clean. 'Should he have been believed? Fleming v. L. R. Chamber of Commerce, 137 Ark. 615, 206 S. W. 895; Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397; Toll v. Lewis, 136 Ark. 318, 206 S. W. 442.

Authorities in cases involving negligence of vendors, as distinguished from the implied warranty, are not lacking. This court seems to have followed in all decided cases the weight of these authorities. There must be proof tending to show the negligence alleged before there is a recovery. Negligence, like fraud, is not presumed, but it must be proved, or, at least, facts must be shown from which it may be inferred.

The case of National Cotton Oil Co. v. Young, 74 Ark. 144, 85 S. W. 92, is in point. The facts showed that Young bought a load of cottonseed hulls and a sack of cottonseed meal from the oil company, and he himself loaded the hulls in the wagon with a large fork, direct from the factory. He mixed the meal with the hulls, and fed the mixture to his cows. The cows died shortly afterward. An examination of one of them disclosed nails, pieces of wire and other foreign substances in the throat and stomach. The meal and hulls were examined and similar metallic substances were found in both. Young sued the oil company, relying both upon the implied warranty of the feedstuff, and upon negligence. The question of implied warranty was eliminated by a prior decision of this court, so the ease went to the jury upon the question of negligence.

The jury returned a verdict as follows: “We, the jury, find for the plaintiff, J. E. Young, the sum of one hundred dollars, and believe the foreign matter got into the feed by accident. ’7 This finding was upon evidence adduced by the oil company tending to show that it was impossible for such foreign substances, as found in the feed, to have gotten into it in the process of manufacture, and necessarily that such substance got into the meal and hulls after they were manufactured. The court held that negligence was not established, though some proof was offered from which the jury might have inferred that the foreign matter got into the feedstuff through negligence of the employees of the oil company. The point is that the unfit condition of the feedstuff for consumption by the cattle did not establish negligence.

In a much more recent case, that of Colyar v. Little Rock Bottling Works, 114 Ark. 140, 146, 169 S. W. 810, this court distinguished the case under consideration from the case of O’Neill v. James, 138 Mich. 567, though both cases are based upon the fact that a bottle of soda water or coca-cola exploded by reason of an overcharge of gas, doing injury to the one handling the bottle.

In the case of O’Neill v. James, the proof offered did not show knowledge on the part of the defendant that the bottle which exploded had been improperly charged with gas, while in the case under consideration, proof was offered that the producer or manufacturer had information of the fact that bottles frequently exploded when handled, and he knew, or should have known, of the unsafe condition of the overcharged bottle. In the case of O’Neill v. James, the proof of negligence was the explosion of the bottle. The judgment for plaintiff was reversed. In the Oolyar case it was held that with the evidence, in addition to the fact of the explosion, the case should have gone to the jury. It is argued in appellees’ brief, but not found in the abstract of evidence, that the meat block was contaminated with soured and putrid particles of meat, etc. If this were evidentiary, and not merely conjectural, a different case would be presented.

In the case of Heinemann v. Barfield, 136 Ark. 456, 207 S. W. 58, it was found that flour sold to the plaintiff contained arsenic, and it is also shown that an employee of the appellant had a short time before this sale bought “rough on rats” from a neighboring druggist which, according to the druggist’s statement, contained fifteen or twenty per cent, arsenic, and this had been put out near or around the flour bin, and that the appellant had burned some flour, saying that “the chances are some one else might get poisoned from this same flour.”

In the case of Drury v. Armour & Company, 140 Ark. 371, 216 S. W. 40, and the same case reported again in 146 Ark. 310, 226 S. W. 133, there was proof in regard to the sausage sold that there was a green, slimy piece, as big as one’s thumb, which was wet and soggy, and gave out a bad odor, and that it smelled like it was rotten. This was a condition that should have been discovered in the exercise of ordinary care.

In the case of Safeway Stores, Inc., v. Ingram, 185 Ark. 1175, 51 S. W. (2d) 985, Ingram was made sick by eating a piece of cheese loaf, purchased from appellant. The proof was that this loaf had a tainted taste; that one could tell from the looks of it that it was poison. It was also proved that it had mold upon it, and had the odor of spoiled meat.

In the research we have made we have not been able to find a case, nor have appellees cited one, decided by this court, wherein the injuries suffered were held to be sufficient proof of negligence to justify a recovery. Such a holding would seem to be against the weight of authority.

It follows therefore that both cases should be reversed, and remanded.

It is so ordered.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    Smith v. Leeper.
    4-3599
    Opinion delivered November 19, 1934.

      Oscar T. Jones, for appellant.

      Dene E. Coleman and Chas. F. Cole, for appellee.
   Baker, J.

The appellee in this case, about thirteen years ago, purchased an eighty-acre tract of land in Independence County from Mack T. Smith, the appellant, and agreed to pay the sum of $2,000 therefor, executing eighty-five notes of $20 each. He paid $300 about January 1, 1921, and at that time, or soon thereafter, took a deed and executed a mortgage to secure the deferred payments.

At the time of this purchase both of the parties lived in Chicago, and the appellee says that he had never seen the land; that it was represented to him by the appellant, as an inducement to cause him to purchase the land, as being located upon a good road, when in fact it was not upon any road; that one had to pass through the lands of three different landowners to reach a road or mail route; that he represented the character and quality of the land as being excellent, free from rocks and suited to truck farming, when in fact it was rocky and not well adapted to truck farming, very poor soil; that he further represented that there was certain merchantable timber on the land, sufficient to pay for it, when in fact there was no merchantable timber whatever.

Appellee also charges that Smith represented that all of said land was capable of being placed in cultivation, when in fact there was only a small portion thereof suitable for cultivation; that he represented there was a good house and barn on the property, and that the land was fenced, when in fact there was no barn and no fence and that the house was in a very bad state of repair, and it was necessary to go to a great expense to make it habitable.

A contract was entered into in October, 1920; that the deed and notes were executed in January, 1921. It was some considerable time after that, perhaps a year, before the appellee saw the land, and he at once attempted to rescind the contract, but was persuaded by Smith not to do so, and Smith promised that he would grant him a reduction and make adjustment with him before final settlement would be required in payment for the land.

At the time the suit was filed there was due $400 of the principal sum under the contract, which, together with interest, amounted to about $600. This amount Leeper refused to pay. Smith proceeded to make sale of the land under the power granted in the mortgage and procured Oscar T. Jones to sell the land, at which sale Smith became the purchaser. Leeper brought suit to cancel this sale made under the mortgage, and for damages, and Smith, by way of cross-complaint, asked for the foreclosure of the. mortgage, or deed of trust.

Leeper, in his testimony, said that he saw Smith’s advertisement in The Chicago Daily Netos; that he wanted to buy a place for a home; that he saw Smith and took notes in a memorandum book as to Smith’s statements or representations. Among other things set out in the notes, which Leeper says he took down, is the fact that Smith recited that all of the land could be cultivated, except a small portion, and that there was timber enough on the place to pay for it; could raise vegetables of all kinds, beets and tomatoes one and a half to two pounds; land not rough but gently rolling; spring water, sufficient to irrigate the place; good soil; grow anything you plant; about thirty acres in cultivation; near churches; road and mail route near place; good road out; place fenced; good barn; house the best on south side of the river; other buildings, spring house; had six acres of fine orchard bearing peaches; tenant on the place named Cazort.

Leeper, without investigating but relying upon all of the representations so made, contracted for the land. In this suit he said there was no merchantable timber upon the land; no barn upon it; no fence; no orchard; that the house was in a very bad condition; the soil very poor and not productive; that the property was not worth exceeding $1,000 at a high price.

Other witnesses testified the property to be worth from $400 to $600. Cazort, who lived upon the. place was also a witness. He states that he received a letter from Smith, who advised him he had found a buyer for the place at $2,000 and asked him to make the place as attractive as possible; to meet the purchaser at the depot and take him to the farm late in the afternoon, just in time to get the train out the same day; that he thought the deal would go through and that he would pay Cazort for his trouble, and also that he didn’t want Leeper to get in touch with any real estate men for fear they would try to switch him to some other place; to keep the information aiven him in the letter to himself and to do his best to help make the deal go through and not to say anything to anybody until afterward.

Cazort said that he lived on the place four or five years, one year before Leeper came and four years after he came. He said that the timber on the place was fit for fire wood only; that the barn had been torn down for kindling the year before.

Smith testified that Leeper’s attitude was a shock to him and offered a letter written by Leeper and his wife stating that they had paid the taxes, no advertising-fee, that all the favors and help extended to them seemed like mountains of blessing and were received with real appreciation. Trusted that they might not always be up against it, that instead something may come their way which would make it possible for them to meet their full obligations and duty.. Smith admitted he wrote the letter to Cazort concerning- the purchaser who would come to look at the place.

The chancellor, upon the trial of this cause, found that this was a suit in recoupment for the deceit alleged to have been practiced by Smith upon Leeper. He set aside the sale, wherein the land was sold by Smith and bought by Smith, under the power contained in the mortgage or deed of trust. No question is raised about the correctness of this part of the decree. He found also that Leeper had paid full value for the land and canceled the other or outstanding notes and mortgage and quieted the title in Leeper against Smith; dismissed Smith’s cross-complaint, wherein Smith was seeking to foreclose the mortgage for the balance due upon the remaining portion of the contract or purchase, price.

It is urged upon this appeal that much of the evidence, or, at least, part of it offered by Leeper contradicts the contract. This is not correct, and this contention can arise only upon a misconception of the nature of the. suit. The contract does not say, of course, that there was a barn upon the place, but Smith had lived upon the place at one time, and there was one at that time. It is not in contradiction of the contract for Leeper to testify that there was no barn upon the. place, nor is he prevented from testifying that Smith told him there was a barn there merely because of the fact that no barn is mentioned in the written contract. The fraud or false representations, or deceit, is the gist of Leeper’s contention, and, if he were not permitted to show that the statements made as an inducement to him to enter into the contract were untrue, because of the fact that Smith did, or did not, write these statements into the contract, then the anomalous situation of preventing- a recovery in the case would arise, for the reason that Smith had not only deceived him, but had contracted with him so as to perpetuate and make workable this deceit without relief. Leeper ratified the contract but sought relief in recoupment.

This court has said in several cases that one of the remedies of the victim in the case of deceit is to await the effort to collect the money and then assert his remedy by way of recoupment for damages. Leeper, the appellee, has done this.

It is urged also that Leeper’s claim is stale; that he has not been diligent, but Leeper’s explanation is entirely tenable, at least not unbelievable, that is, to the effect that Smith had insisted that he keep the property, promising that he would adjust the price with him on the last payments. To argue that he should not have waited thereafter would be tantamount to arguing Smith’s lack of honor and good faith. Perhaps he should not have relied upon this promise of Smith’s, but should have proceeded at once with the suit, either to rescind or to recover his damages, but under the circumstances Smith may not properly urge that defense. Smith was making an effort to collect this money, alleged to be due him, by sale of the land under the power contained in the mortgage. Leeper filed his suit to cancel this sale and deed made under it and asked for damages.

Chief Justice Hart, speaking for the court, in the case of Held v. Mansur, 181 Ark. 876, 881, 28 S. W. (2d) 704, said: “In the third place, to avoid a circuity of actions and a multiplicity of suits, he may plead such damages in an action for the purchase money, and is entitled to have the. same recouped against the sum he has paid for the land. Matlock v. Reppy, 47 Ark. 148, 14 S. W. 546; and Danielson v. Skidmore, 125 Ark. 572, 189 S. W. 57. In the same case Chief Justice Hart said further: “Where the vendor knows that the purchaser is wholly ignorant of the valué of the. property, and knows that he is relying upon his representations, the representations do not take the form of a mere expression of opinion, but are in the nature of a statement of fact. The reason is that the vendor knows that the statements he has made are untrue or are made in reckless disregard of the truth, and it cannot be doubted that he knows and believes that such statements will have a material influence upon the purchaser. Carwell v. Dennis, 101 Ark. 603, 143 S. W. 135; Hunt v. Davis, 98 Ark. 44, 135 S. W. 458; Bell v. Fritts, 161 Ark. 371, 256 S. W. 53; Cleveland v. Biggers, 163 Ark. 377, 260 S. W. 432; LaneyPayne Farm Loan Co. v. Greenhaw, 177 Ark. 589, 9 S. W. (2d) 19.”

Smith’s letter to Cazort, attempting to arrange with Cazort to so manage Leeper upon his trip to visit the farm so as to not permit any one to meet or talk with him about the property, indicated pretty clearly his intention to deceive, and he did, in fact, deceive Leeper. Myers v. Martin, 168 Ark. 1028, 272 S. W. 856.

The court held that the remaining notes should be canceled. The brief of appellee suggests that further relief ought to be given Leeper, under the proof in the case, to the effect that the property was worth only five or six hundred dollars. We think, however, that, inasmuch as Leeper had paid of the principal amount $1,600 before he quit paying in order to enforce his remedy, the most he could consistently ask is what the court gave him, that is, relief from the payment of the balance of $400 and interest.

The chancellor’s ruling is supported by the authorities, and seems not to be against a preponderance of the evidence, but is well supported by it.

• It follows therefore that the case should be affirmed, and it is so ordered.


author: McHaney, J.

text:
    Parsons v. Barnett.
    4-3708
    Opinion delivered November 19, 1934.

      W. K. Buddell and 8. 8. Jefferies, for appellant.

      Dene H. Coleman and Wallace Townsend, for appellee.
   McHaney, J.

Appellant, a qualified elector and taxpayer in Batesville 'School District No. 1 of Independence County, brought this action against appellees as the board of directors of said district to enjoin them from issuing refunding bonds in the sum of $110,500 to take up a like sum of outstanding bonds of the district. The complaint filed for this purpose alleged a number of grounds of invalidity of the proceedings taken, to which a demurrer was interposed and sustained. The complaint was dismissed as being without equity, and this appeal followed.

At the annual school election held May 19, 1934, the ballot used gave the electors the choice of voting “for school tax” and “against school tax,” and also for and against “18 mills school tax, including* 6 mills for building fund.” It then provided: “The building fund is for a proposed refunding bond issue of $112,500, and will run for twenty years and whatever number of mills is voted for the building fund will be a continuing levy of that amount on the real and personal property now embraced in this district until said bonds and interest are paid.” The names of four persons as candidates for school directors were also placed on the ballot with instructions to vote for two, and the name of one candidate for State Board of Education.' The county judge canvassed and certified the result of said election, showing, among other things, that a tax of 18 mills had been voted — 12 for school purposes and 6 for building fund. Thereupon, appellees, the directors of said district, had bonds printed of the face, value of $110,500, executed them, as also a deed of trust and pledge securing said bonds by a mortgage on all the property of the district and pledge of the annual revenues derived from a six mill building fund tax for twenty years, or until all the. bonds and interest of the refunding issue of $110,500 are paid. They thereupon gave notice of the sale of said refunding bonds by publication, sale to be to the highest bidder for cash or for exchange, for outstanding bonds, reciting certain conditions and the date of sale, August 30, 1934. ' One bid was received as follows: For $3,000 of 6 per cent, bonds, a surrender would be made of a like sum of bonds issued April 1, 1915; for $40,000 of 5 per cent, bonds a surrender would be made of a like sum of bonds issued January 1, 1923; for $43,000-of 5% per cént.-bonds, a surrender would be made of a like sum of bonds issued August 1, 1926; and for the remainder, $24,500 of 5 per cent, bonds, a surrender would be made of a like sum of bonds issued March 2,1931. One of several conditions of this bid is as follows: “This offer is upon the condition that the district will set aside into a building fund the entire proceeds of the annual building fund tax of six mills which this district voted on May 19, 1934, for the retirement of this bond issue. The said building fund is to be kept solely for the following purposes”; setting them out.

For a reversal of the judgment, appellant first contends that § 1, act No. 28 of the Special Session of 1933, approved September 2, 1933, which amended § 65 of act No. 169, 1931, page 476, is unintelligible because of the following language used in the act: “Hereafter on the proposed issue of bonds by any school district, either for the purpose of borrowing money or to refund any outstanding bonds of said district, the directors shall submit to the electors of the district either at the annual school election or at a special election called for that purpose * * * at which the electors shall vote on the question of the number of mills to be set aside in the building fund to pay the bonds and interest on the proposed issue.” The criticism is that the language employed requires the directors to “submit” something without stating what is submitted. It must be admitted that the sentence is awkwardly drawn, but the whole act leaves no doubt about what they were to submit to the electors. The question to be submitted was the voting of a building fund in the manner and form prescribed in said act 28. Section 65 of act 169, 1931, provided for the voting of a continuing levy for a building fund, but it did not provide that such facts should be printed on the ballot to be used at the election at which the continuing levy was voted. The object of the amendatory act No. 28 was to advise the electors of the fact that a continuing levy for the building fund was to be voted for and the number of years the levy should run. The purpose of the act is therefore clear, and it is not subject to the criticism made of it by. appellant.

It is next said that the notice given of the annual school elections in this and other districts in the county was not a proper notice because not signed by the directors. The notice was signed by the county judge and the county examiner. It correctly stated the nature of the election, the date and hours as fixed by law and that: ‘ ‘ Electors will vote on local district tax, for local school directors and any other question that may be submitted by the local directors.” We do not here decide whether the notice should have been signed by the directors or by the county judge, as such failure, if it be a failure, did not invalidate the election as it is a mere irregularity. Wallace v. K. C. Sou. Ry. Co., 169 Ark. 905, 279 S. W. 1. In that case we quoted from Hogins v. Bullock, 92 Ark. 67, 121 S. W. 1064, which is a quotation from Jones v. State, 153 Ind. 440, 55 N. E. 229, as follows: “All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election or unless it is expressly declared by the statute that the particular act is essential to the validity of an election or that its omission shall render it void.” Therefore the failure to give a proper notice, or a notice signed by the proper officials could not have the effect of voiding the election.

The next argument made for the reversal of the judgment is that the ballot used in the annual election held May 19, 1931, did not comply with the provisions of said act 28. The act provides, with reference to the ballot, the following: “The ballots shall state plainly in the same size type and immediately following the words, ‘for .........mills for building fund,’ that the proposed bonds will run for the number of years agreed upon between the directors and the bond broker, and that whatever number of mills is voted for the building fund will be a continuing levy of that amount on the real and personal property then embraced in said district until said bonds and interest are paid, and that shall be the effect of said election. ’ ’ The ballots had printed on them the matters herein above stated. Instead of printing the information required by the act as above quoted, immediately following the words “for 18 mills school tax, including 6 mills for building fund,” such information was printed below the words “Against 18 mills school tax including 6 mills for building fund.” "We think this is a substantial compliance with the requirements of the act. Said act 28 further provides: ‘ ‘ They shall show on the ballot the proposed levy for school purposes and the part thereof to be voted for and placed in the building fund. The ballots shall show the number of mills to be voted for the building fund.” It is conceded by appellant that the act was literally complied with in the printing of the ballots except that the information regarding the building fund as to its being a continuing levy and the number of years it was to run did not immediately .follow the words, “for 18 mills school tax including 6 mills for building fund. ’ ’ The very purpose of the act was to advise the voter what the effect of his ballot would be. Prior acts made no such requirement regarding the printing of such information on the ballot. Each elector had his choice of voting first, “for or against” the school tax and second, for or against “18 mills school tax, including 6 mills for building fund.”

Another contention made by appellant is that the county judge and the county examiner canvassed and certified the result of the election instead of the county court. It is true that under § 30, act 169, 1931, the duty of certification devolved upon the county board of education, and that by act 247, of 1933, the duties exercised by the county board of education were transferred to the county courts of the respective counties of the State. There is no contention that the county judge and the county examiner did not correctly canvass and certify the result, and no contest thereof was had. We think the mere fact that the county judge instead of the county court certified the result is an irregularity, and that it should not be permitted to invalidate the election. It is also contended that the form of the certificate as to what tax was voted is insufficient to constitute a levy of any tax,' — that it is unintelligible. We cannot agree with this contention. It shows that in district No. 1, which is appellee district, two persons were elected directors to serve for a five and four year term; respectively, and that a 12 mill and a 6 mill tax were voted. Based upon this certificate a 12 mill tax for school purposes was levied and a 6 min tax for building purposes was levied. We think this is sufficiently intelligible to justify the levy made.

It is next contended that the offer to purchase the refunding’ bonds was merely one for the exchange of the bonds outstanding for new or refunding bonds and not for cash, as it is contended the statute requires. Section 65 of act 169, 1931, and act 28 of the special session of 1933 authorize the refunding of outstanding bonds by school districts. It would be a useless procedure to require the holders of the outstanding bonds to pay cash for the refunding bonds and then take the cash back on the surrender of the outstanding bonds, and we do not understand the statute so requires. It is further contended that the electors voted for a bond issue for $112,500, whereas the board finds it necessary to issue only $110,-500 in refunding bonds. Bince the amount to be issued is less than the amount authorized, certainly this is to the advantage of the district and does not prejudice its interests in any way.

The concluding sentence of said act 28 tends to cloud the act with some uncertainty. It is as follows: “In no other case shall the voting of any building fund have the effect to make the same a continuing levy, and it is hereby declared to be the legislative intent that no voting of a building fund by any school district in this State, since the passage of act 169 of the Acts of the. General Assembly of 1931, shall have the effect to be a continuing levy except where money was actually advanced to a school district since the passage of said act and in reliance thereon, but in no other case.” What the Legislature evidently intended was to annul or make void the voting of a building fund which would be a continuing levy since the passage of act 169 of 1931, and prior to the passage of said act 28. No doubt the reason for such action was that the electors in some cases had, during such a period, voted for a building fund, which had the effect of being a continuing levy, without knowing such to be the fact. Said act 28 provides for such information to be printed on the ballot, and it then said that: “In no other case shall the voting of any building fund have the effect to make the same a continuing levy, etc.” We therefore hold that said act 28 authorizes the voting of a continuing levy for a building fund, when the act- is complied with, and- this matter of voting a continuing levy in school districts for building funds has twice been held by this court to be constitutional. Woodruff v. Rural Special School Dist., 170 Ark. 383, 279 S. W. 1037; Ruff v. Womack, 174 Ark. 971, 298 S. W. 222.

We find no error, and the judgment is affirmed.


author: Johnson, C. J.

text:
    Welborn v. Welborn.
    4-3603
    Opinion delivered November 26, 1934.

      J. Loyd Shouse and W. M. Thompson, for appellant.

      W. K. Buddell, for appellee.
   Johnson, C. J.

This is an action for divorce instituted by appellee against appellant in the Independence Chancery Court, the complaint alleging “indignities” in accordance with the mandate of § 3500, Crawford & Moses’ Digest. Appellant answered the complaint by general denial, and by way of cross-complaint prayed a decree in her behalf for separate maintenance, suit money, attorney’s fees and costs.

To sustain the allegations of the complaint, the following testimony was adduced. Murill Welborn testified that she is a daughter of appellee and is thirteen years of age; that she had met appellant upon the streets, and appellant did not speak to her. This occurred before appellant and appellee began living together as husband and wife.

Luther Welborn, a brother of appellee, testified that he assisted appellee in his restaurant business, and that appellant would come in the place of business and raise “cain” with appellee because witness was working there.

Appellee testified in his behalf: That he is thirty-nine years of age and was married to appellant January 11, 1932; that they did not live together as husband and wife until about May 10, 1932, because appellant did not desire to take care-of his children; that they lived togetlier on this occasion only two weeks when appellant moved away because, as she said, she could not get along with the children. Thereafter in June, 1932, appellant brought suit against appellee for maintenance, but this suit was settled and dismissed, and appellant then returned to his home; that appellant objected to his going to see his children and giving them money, and “fussed every time I came home,” and when he sent money to the children appellant would “blow up”; that appellant would “fuss” because appellee would not take her to shows “She told me that she couldn’t come into the shop without some of my ‘darned outfit’ was there; that just before I left there or the morning appellant left she had been fussing ever since Saturday night about me not going out with her and this continued until Wednesday morning when appellant left. ’ ’

Ada Welborn, appellee’s sister, testified that she never saw appellant but one time and never had “any fusses” with her.

In rebuttal Fon Wagner testified that appellant came to his place of business and asked about appellee and stated that “she would have been glad to let him go” if he had settled up with her.

Mrs. Wagner corroborated the testimony of witness, Fon Wagner, and this was all the testimony adduced in appellee’s behalf.

Without stating in detail the testimony on behalf of appellant, it may be said as to all material facts it flatly contradicts that produced for appellee, and in addition recounts a shocking set of facts and circumstances in reference to the conduct of appellee in regard to his marital obligations.

Appellee was awarded a decree of divorce, and this appeal is prosecuted therefrom. Were it conceded, which we do not for the reasons hereinafter expressed, that appellee’s testimony was sufficient to establish cause for divorce, this would fall far short of complying with the prevailing rule in this State that a divorce will not be granted upon the uncorroborated testimony or admissions of either spouse. Rie v. Rie, 34 Ark. 40; Kurtz v. Kurtz, 38 Ark. 119; Scarborough v. Scarborough, 54 Ark. 20, 14 S. W. 1098; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486.

The testimony of appellee’s witnesses heretofore set ont demonstrates its lack of corroborative facts and circumstances, and we have no hesitancy in holding its insufficiency.

Moreover, appellee’s testimony, giving it its most charitable view, relates no facts or circumstances establishing indignities under our statute. True, he testified to certain “fussing,” “blow ups,” etc., and other conclusions but he does not undertake to detail the facts which superinduced these conclusions. Not only this, but appellee’s testimony falls far short of the rule announced by us many, many times, to the effect, that to entitle a complaining spouse to a divorce for indignities, the conduct of the offending spouse must be of such nature as to connote settled hate and a plain manifestation of alienation and estrangement, and must have been followed habitually and continually through such period of time as to show settled hate and malevolence. Rose v. Rose, 9 Ark. 507; Preas v. Preas, 188 Ark. 854, 67 S. W. (2d) 1013.

Manifestly, therefore, the court erred in granting appellee a divorce on the testimony adduced. The trial court also erred in refusing to award appellant separate maintenance and a reasonable attorney’s fee. The testimony in reference to appellee’s ability to provide separate maintenance is to the effect that appellee owned a restaurant business in the city of Harrison which he gave to his brother for the asking; he gave a farm worth several hundred dollars to his sister because she had assisted him; he collected more than two thousand dollars from a fire insurance company which accrued to him because of a fire, and no satisfactory explanation has been made of its disposition. From this we conclude that appellee should be compelled to contribute $25 per month for appellant’s separate maintenance which allowance is made effective as of date of the trial court’s decree. Appellant’s counsel is awarded an attorney’s fee of $50 for his services in this court.

The cause is therefore reversed, and remanded with directions to enter a decree not inconsistent with this opinion.


text:
    Ætna Life Insurance Company v. Langston.
    4-3609
    Opinion delivered November 26, 1934.

      Owens & Ehrman, for appellant.

      Surrey E. Gilliam, for appellee.
   Johnson, C. J.

This action was filed by appellee against appellant on March 8, 1933, seeking a recovery upon a certain insurance policy issued by appellant in favor of appellee on August 2, 1921, the pertinent provisions thereof being: “If the insured becomes wholly, continuously and permanently disabled and will for life be unable to perform any work or conduct any business for compensation or profit, or has met with the irrecoverable loss of the entire sight of both eyes, or the total and permanent loss by removal or disease of the use of -both hands or of both feet, or of such loss of one hand and one foot, and satisfactory evidence of such disability is received at the home office of the company, the company, will, upon the acceptance of such proof, if all premiums previously due have been paid, waive the payment of all premiums falling due thereafter during such disability, and if such disability existed before the insured attained the age of sixty years, the company will immediately pay to the life beneficiary the sum of ten dollars for each thousand dollars of the sum insured and will pay the same sum on the same day of every month thereafter during the lifetime and during such disability of the insured.

“Any premium waived or monthly payment made by the company on account of this provision will not be deducted from any settlement under this policy, and the sum insured and loan and cash surrender value will be for the same amount as if the premiums waived had been paid in cash.

“The foregoing benefits for disability are conditioned upon the representatives of the company .being permitted to examine the insured before the acceptance of proof and during twelve months thereafter. ’ ’

Appellee alleged that prior to his sixtieth birthday and while the policy was in full force and effect he became permanently and totally disabled within the purview of said policy.

Appellant filed an answer to the complaint which denied all the material allegations thereof and affirm a - tively pleaded the five year statutes of limitation in bar of the action; also that no notice had been given by the insured to the insurer of the alleged injury until 1932. Upon the issues thus joined a trial to a jury was had on January 16, 1934, which resulted in a verdict and judgment in favor of appellee for the sum of $1,750.

The testimony was amply sufficient to support the jury’s finding that appellee was totally and permanently injured prior to his sixtieth birthday and at a time when the policy was in full force and effect, but, since this point is not now urged upon us for consideration, we do not detail the testimony in reference thereto.

Appellant urges that appellee’s alleged cause of action is barred 'by §§ 6955 and 6960, Crawford & Moses’ Digest, because as it is argued the suit was not filed within five years after appellee attained his sixtieth birthday, and that the suit was not brought within five years after receipt of his total and permanent disability.

We have never held that suits upon insurance policies similar to the one under consideration must be brought within five years after receipt of total and permanent disability; neither have we ever held that such suits must be brought within five years after the insured attained the birthday designated in the policy as limiting liability thereunder.

In Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2) 912, we stated the applicable rule as follows: “If, therefore, the disability exists and commenced when the contract was in force, it is immaterial how or when proof is made, if within the statutory period, and recovery may be had for the damage sustained, excluding that occurring beyond six months from the time proof is made. As stated in the case of Hope Spoke Co. v. Maryland Cas. Co., supra, the proof of disability is intended to give the insurer an opportunity to investigate the facts affecting the question of its liability and the extent thereof. This end is served when the complaint is filed, and no prejudice can result if, as in the instant case, no claim is made for benefits accruing before the filing of the complaint or the statute (Crawford & Moses’ Digest, § 6155) prescribing a penalty or attorney’s fee is not invoked.”

Again in Missouri State Life Ins. Co. v. Foster, 69 S. W. (2d) 869, we reiterated the rule as follows: “We are definitely committed to the rule that liability attaches under contracts of insurance similar to the one under consideration, upon causation of the injury, and it necessarily follows from this that no subsequent act or acts of the parties can destroy the liability thus created.”

And again in the more recent case of Equitable Life Ins. Society v. Felton, ante p. 318, 72 S. W. (2d) 225, we stated the rule in the following language:

“We have repeatedly held in eases arising under contracts of insurance not dissimilar to the one here involved that liability against the insurer and in favor of the insured attaches and comes into being upon the happening of total and permanent disability. * * * The requirement for proof of loss or notice under this contract being a condition subsequent, suit might be maintained for the liability at any time until barred by the statute of limitations.”

The effect of the rule thus quoted is that, in policies of insurance similar to the one under consideration and which provides a monthly indemnity to the insured for life in the event of total and. permanent disability incurred during the effectiveness of the policy, suits may be instituted, prosecuted and maintained by the beneficiary at any time after receipt of such injury, but the aggregate recovery is limited to a five year period immediately prior to the filing of such suit. When the rule is thus interpreted, it appears that the trial court was correct in determining and submitting this issue. The doctrine thus stated is in full accord with the previous decisions of this court and is certainly not in conflict with our holdings in Smith v. Mutual Life Ins. Co., 188 Ark. 1111, 69 S. W. (2d) 874; Atlas Life Ins. Co. v. Wells, 187 Ark. 979, 63 S. W. (2d) 533.

It is next insisted that no notice was given by appellee to appellant of receipt of the injury complained of. On this point it suffices to say that the policy under consideration does not provide for notice. Moreover, were the following provisions of the policy, “The foregoing benefits for disability are conditioned upon the representatives of the company being permitted to examine the insured before the acceptance of proof and during twelve months thereafter,” construed as one for notice, it would fall clearly within the rule of a condition subsequent and not a condition precedent to recovery, as announced by ns in many cases. Hope Spoke Works Co. v. Maryland Cas. Co., 102 Ark. 1, 143 S. W. 85; Home Indemnity Co. v. Banfield Brothers Packing Co., 188 Ark. 683, 67 S. W. (2d) 203, and cases therein cited. Moreover, appellant was apprised of appellee’s disability in July or August, 1932, and had full opportunity to make such examination and investigation thereof as it deemed proper and expedient, as this suit was not begun for several months thereafter; therefore appellant was afforded timely opportunity to examine appellee which was the only right reserved in the clause of the policy just quoted.

Neither can we agree that prejudicial error is made to appear in admitting testimony in reference to the mental condition of deceased subsequent to his injury or the argument of counsel relative thereto. The insured’s mental condition was a circumstance tending to show his total and permanent disability; therefore such inquiry was relevant and proper.

Finally, it is urged that prejudicial error was committed by the trial court in refusing to grant a new trial because of newly-discovered evidence. This contention is grounded upon certain testimony of the War Department of the U. S. A. which tended to show that the insured was several years older than he had represented his age to be in the application which superinduced the issuance of the policy of insurance. No error is made to appear in this regard. First, no diligence was shown in procuring this testimony. Appellant’s witness, E. D. Leas, testified that he, the investigator and adjuster for appellant, made an investigation of this claim when filed (August, 1932) and appellee then advised witness that he enlisted in the United States Army at Memphis, Tennessee, but could not give the name of his general or colonel, but thought he had served under General Cook. Witness further testified that he pursued the inquiry no further at that time. This testimony demonstrates a total lack of diligence upon appellant’s part. If the law compelled a new trial under the facts and circumstances here presented, litigation would never end.

This suit had been pending more than ten months when finally tried, and seven additional months had been-consumed by appellant in investigation prior thereto; therefore this length of time certainly afforded ample opportunity to make all necessary inquiries. Fowler v. State, 130 Ark. 365, 197 S. W. 568; Lisk v. Uhren, 130 Ark. 111, 196 S. W. 816; Hinkle v. Lassiter, 142 Ark. 223, 218 S. W. 825. Moreover, the testimony offered is merely cumulative to the testimony produced by appellant, and such testimony is never considered sufficient to compel a new trial. Winn v. Jackson, 158 Ark. 644, 245 S. W. 812, and cases there cited. Not only this, but it has ever been the established doctrine in this court not to reverse a judgment because of newly-discovered evidence except in such cases as it clearly appears that the trial court abused its discretion. Arkansas Mutual Fire Ins. Co. v. Stuckey, 85 Ark. 33, 106 S. W. 203; McDonald v. Daniel, 103 Ark. 589, 148 Ark. 271; Banks v. State, 133 Ark. 169, 202 S. W. 43.

We have always held, first, that the granting of a new trial for newly-discovered evidence is within the trial court’s discretion; secondly, a new trial will not be granted for newly-discovered evidence, unless the applicant has shown due diligence; third, to warrant a new trial for newly-discovered evidence, it must appear that the evidence will probably change the result, was discovered after the trial, could not have been discovered before, the trial by due diligence, and is material, and not merely cumulative or impeaching. Arkansas Power & Light Co. v. Mart, 188 Ark. 202, 65 S. W. (2d) 39. It appears that the newly-discovered evidence here adduced, if admitted in evidence, would tend only to impeach the testimony of the insured. It will be remembered the insured testified to his age as it appears in his application which superinduced the issuance of the policy, and the purpose and effect of the offered testimony would be to tend to impeach his testimony. Not only this, but, were the testimony admitted, the result probably would not be changed because appellee testified in an affidavit in response to the motion for a new trial that he erroneously gave his age to the war department'. Certainly, if this were true, and the trial court so found, it would not change the result of the trial.

No error appearing, the judgment is affirmed.


author: Smith, J.

text:
    Life & Casualty Insurance Company of Tennessee v. Goodwin.
    4-3600
    Opinion delivered November 26, 1934.

      Moreau P. Estes and Streett S Streett, for appellant.

      L. B. Smead and Lawrence E. Wilson, for appellees.
   Smith, J.

This suit was brought to recover on a policy of life insurance, and was heard in the court below on an agreed statement of facts reading as follows:

‘ ‘ 1. It is agreed that the life insurance policy numbered 63572, in the sum of $1,000 was issued and delivered by the Life & Casualty Insurance Company of Tennessee to Harmon Goodwin on June 21, 1926; that semi-annual premiums were due thereon on June 15 and December 15 of each year; that all premiums were paid up to and including the 15th day of December, 1932; that on said date the policy lapsed for the nonpayment of the premium then due; that at the time of the lapse of the policy there was a loan outstanding against the same in the sum of $82, and it had a reserve or loan value of $90, leaving a net reserve of $8 and an unearned interest credit thereon of $2.46, making an aggregate reserve value under the policy at the time of its lapse, December 15, 1932, and on the date of the death of the. insured, August 28, 1933, of $10.46; that all premium notices were sent out and received by plaintiff in due time;
“1 y2. That upon the lapse for failure to pay said premiums the policy was then immediately commuted to a paid-up policy as provided under its terms.
£<2. It is agreed that the insured received notice from the defendant company by letter of March 27, 1933, that his policy had lapsed, and that under the terms thereof he was entitled to paid-up insurance, in the sum of $32.43, but said letter did not notify insured the reserve value of his policy; that the insured died on August 28, 1933; that prior to his death he could read and write, and had the policy in his possession at all times after its delivery, and that he never exercised or made any effort to exercise any of the. options provided under the ‘non-forfeiture provisions’ thereof.
“3. It is further stipulated and agreed that the amount of paid-up insurance the policy reserve would purchase at the time of forfeiture and death was and is the sum of $32.43, and that this sum has heretofore, by the defendant, been tendered to the plaintiff and the tender refused, and the amount paid in lawful currency into the registrar of the court.
“4. It is further agreed that, provided the ‘non-forfeiture provisions’ or ‘automatic provisions’ of the policy should be held of no effect, that the amount of the reserve was sufficient to extend the benefits provided in the policy under the extended insurance clause thereof beyond the date of the death of the insured.
“5. It is contended by the plaintiff that the. amount of extended insurance is the face of the policy less any indebtedness outstanding, which is admitted to have been the sum of $82; it is contended by the defendant that the amount of extended insurance is reduced under the terms of this policy in the same pro rata as the outstanding indebtedness bears to the reserve value. It is admitted that, if the provisions of the policy, including the last two paragraphs under the heading ‘non-forfeiture provisions’ are held to sustain the contention of the defendant, then the amount of extended insurance which the reserve of the policy would have purchased, provided the automatic provisions for commuting the insurance to a non-forfeitable paid-up policy should be held of no effect, would be the sum of $116.
“6. It is further agreed and stipulated that the reserve value of the policy was not sufficient, even if so applied, to have paid the premiums necessary to keep in force the policy, with all benefits therein provided, up to the date of the death of the insured.
“7. All questions of fact are herein agreed upon, and there are two issues presented to the court:
“First: Was this policy irrevocably commuted upon lapse for failure to pay premium, and upon the passing of the ninety days provided therein, to a paid-up non-forfeitable policy in the admitted sum of $32.43.
“Second: If the ‘automatic non-forfeitable provisions’ contained in said policy should be, by the court, held of no effect, then is the amount of the ‘extended’ in - • surance reduced in the same ratio as the admitted indebtedness of $82 bears to the reserve of $90, or is the full face of the policy extended less any indebtedness thereon.”

The policy sued on contained the following provisions relating to the nonpayment of premiums and the effect thereof after as many as three annual premiums had been paid (as had been done by the insured in this case), to-wit:

“Non-forfeiture provisions. After three full annual premiums shall have been paid, if default be made of any payment of any subsequent premium, this policy shall automatically at time of lapse be unconditionally commuted to non-forfeitable paid-up insurance as provided below, payable at the same time, and on the same terms, save as to amount, as this policy.
“Within ninety days after said commutation, the insured, in lieu of this automatic unconditional non-forfeit-able paid-up insurance, may upon written demand addressed to the. home office of the company, receive either of the following options: >
“ (1) Receive the cash surrender value of this policy, less any indebtedness to the company hereon. The ca'sh surrender value shall be the reserve on this policy at the date of default, less a surrender charge, which in no case shall be more than two and one-half per cent, of the sum insured; or
“(2) Receive extended insurance from date of default for an amount equal to the face of this policy, for such term in years and months from the date of default as is provided below, but without the right to loans and cash surrender values.
“The amount of the paid-up insurance or the. term for which the insurance will be extended shall be such as the cash surrender value will purchase as a net single premium at the attained age- of the insured at the date of default according to the New York Standard Intermediate Table of Mortality, with interest at the rate of three and one-half per cent, per annum.
“Any indebtedness to the company under this policy will be deducted from the cash surrender value; and such indebtedness will also reduce the amount of paid-up insurance, or the amount which is continued as extended insurance, in such ratio as the indebtedness bears to the cash surrender value at due date of premium in default. ’ ’

The trial court rendered judgment for $1,000, the face of the policy, less $82, the amount of the policy loan, together with the statutory penalty and an attorney’s fee. In rendering this judgment the court made the following declaration of law:

“Under these facts, the court declares the law to be, that it was the duty of the insurer, instead of exercising the option itself, after the nonpayment of the premiums on the 15th day of December, 1932, and commuting assured’s policy to a non-forfeitable paid-up policy in the sum of $32.43, to have notified the insured that the $10.46 would buy that kind of commuted insurance, or, if he desired, he could take the option of extended insurance, and to have notified the insured how many months that sum would extend his policy of insurance. Without giving the assured that information, he wasn’t bound to take the option selected by the insurer, or either of the others, until that information had been given him by the insurer; and in the meantime it was the duty of the insurer not to allow the policy to lapse, and to have used the funds towards keeping the policy in force. Having thus failed to notify the assured, he wasn’t bound to take the option selected by the insurer, and the court finds, as a matter of law, that the reserve of $10.46, had it been applied towards the payment of premiums, it would have extended this policy, and the same would have been in force and effect, for a longer period than the date of the death of the assured, in August, 1933, and therefore at the time of assumed’s death in August, 1933, the policy was in full force and effect as extended insurance, and the plaintiffs, as beneficiaries, are entitled to recover the sum of $1,000; and that the judgment of the court will be in favor of the plaintiffs for the sum of $1,000, together with twelve per cent, penalty, as provided by statute, and a reasonable attorneys’ fee.”

The case, of Metropolitan Life Insurance Co. v. Stewart, 188 Ark. 903, 68 S. W. (2d) 1017, is cited in support of this declaration of law and the judgment rendered pursuant thereto.

The policy there sued on was a participating contract, which required the company, on the 31st day of December of each year, to ascertain and apportion any divisible surplus accruing thereon. It was there said: “The undisputed testimony reflects that the premiums had been paid for full five years and one month, and that one year only of the divisible surplus or profits provided for in the policy had been allocated to the insured, or, at least, no notice of the balance due him out of the divisible surplus or profits had been sent to him. These paragraphs must necessarily be read together in connection with the option paragraphs in order to properly construe them, and, when read together, mean that, before the policy would be converted automatically from a profit-participating into a non-participating, paid-up, endowment insurance policy for a nominal sum on account of the failure to pay premiums for three months, appellant should ascertain the amount due the insured out of the divisible surplus, so that it might be applied to the payment of the monthly premiums, and thereby prevent a lapse of the policy.”

Théi policy here sued on was a non-participating policy, having exáct values and options not dependent upon the company’s earnings. A table printed upon the policy contained three columns, showing, at the end of each year for a period of twenty years, when the policy became paid-up, the following options: In the first column the cash or loan values; in the second column the amount of paid-up insurance then available, and in the third column the extended insurance from that date.

Cases are cited to the effect that forfeitures^ are not favored, and that the insurer may not allow a policy to lapse for non-payment of premiums when it had sufficient funds in its hands to pay the premiums necessary to keep the policy in force. We reaffirm these holdings, but they do not control this case. There is no question of lapse or forfeiture in this case. The policy did not lapse, and there has been no forfeiture. The question is, what are the contractual rights and liabilities of the parties under the contract of insurance under the facts stipulated? Now, it is stipulated that the insured did not pay the semi-annual premium due December 15,1932, and that the insured died on August 28, 1933, without having paid it.

The non-forfeiture provisions were intended to cover, and do cover, the exact state of facts set out in the agreed statement. They provide that, after three full annual premiums have been paid (and here six such payments have been made), if default be made in payment of any premium subsequent to the third (as is the case here), the policy shall automatically at the time of lapse be converted to non-forfeitable paid-up insurance, as shown in column 2 of the table above referred to.

Now, if the policy contained nothing else as to nonforfeitable provisions after three annual premiums had been paid, no question would or could be raised, but there is a further provision. It is this. After this commutation, which is automatic, requiring no action on the part of either the insured or the insurer, the insured has ninety days after commutation aforesaid within which time, upon written demand upon the insurer, to take either of the other two options which the policy gives him.

Otherwise stated, the policy provides that, upon default in paying premiums after three annual premiums have been paid, the policy is automatically converted into one for paid-up insurance unless within ninety days after default in paying premiums the insured, upon written demand addressed to the home office of the insurer, shall elect to take either the cash surrender value of the policy or the extended insurance. After default in paying-premiums, it is the insured’s move, and, if he does not exercise this right, and within the ninety days limited for that purpose, he is bound by the automatic conversion of the policy into paid-up insurance as is provided by the contract. The contract so expressly provides, and we have no authority to change it, nor have we the right to refuse to enforce it.

The fact — and in this case it is a fact — -that the insured had borrowed the full loan value of the policy at the time the loan was made does not alter the provisions of the policy above described, although the loan does affect the value of those options.

Here, the insurer tendered, along with its answer, the full amount of the paid-up insurance to which the insured became entitled upon his failure to accept the other options, as he might have done but did not do. The insured, not only had the notice which the policy in his possession gave, as to his duty to elect within the ninety days allowed for that purpose, but it is stipulated that he received actual notice in the form of a letter from the company as to the action which it had taken.

In Couch’s Cyclopedia of Insurance Law, vol. 3, § 641a, page 2082, it is said: “But where the policy gives an option, and provides for paid-up insurance for a reduced amount if an election has not been made within a specified time, the policy automatically becomes such a paid-up one at the expiration of the period, no prior election having been made, and the insured can claim no alternative right.”

The exact question here presented was considered and decided by the Supreme Court of South Carolina in the case of Ginyard v. Lincoln Ins. Co., 135 S. C. 48, 133 S. E. 227. The policy there sued on contained the provision that “If the insured shall not, within 30 days after default, surrender this policy to the company at the home office for its cash surrender value, as provided in option (a), or term insurance, as provided in option (b), the cash value, less any indebtedness, will be applied to the purchase of paid-up insurance, as provided in option (c). The insured did not surrender the policy and accept options (a) and (b), and the company, under the third privilege of the option, converted the policy into paid-up insurance, amounting to $114, and, as has been hereinbefore stated, this sum was paid to the respondent as administratrix, and was afterwards tendered back to the company, and the company declined to receive it.”

It was there contended, as is contended here, “that all the clauses of the policy must be construed together, that the provisions of the policy must be construed most strongly against the insurer and in favor of the insured, and, if the policy of insurance can be lawfully saved, this will be done, ’ ’ but it was pointed out that, inasmuch as the insured did not apply to have his extended insurance, under option (b) above referred to, as he could have done, the beneficiary might not later claim the benefit of that option. In so holding the court said: “The insured had the policy in his possession, and was acquainted with its terms. He had a right to accept either one of the three options which he deemed most beneficial to himself, and declined to make, his election; whereupon the respondent (insurance company) exercised the right expressly given it under the terms of the policy, and converted the. cash value into paid-up insurance, amounting to $114.”

The court further said: ‘ ‘ The company had no right to exercise this option so long as the option remained to the insured to exercise a different option if he saw fit,” but that, failing to exercise this right within the time limited for that purpose, the contract must be enforced according to its terms.

So, here, the insured having made no election as to the option he would accept, the rights of his beneficiary must be determined by the provisions of the contract applicable to a case where no election was made. In this connection, it may be said that, had the insured lived for a longer period of time than the reserve of $10.46 would have continued the policy in force, his beneficiary would have been entitled to collect the paid-up insurance, a small amount, it is true, but made small by the fact that the insured had himself borrowed from the insurer the full amount of the loan value.

It follows, from what we have said, that the tender made covered the full liability, and judgment should have been rendered for that amount only, and the judgment for the face of the policy, less the amount of the policy loan, will therefore be reversed, and judgment will be entered here for $32.43, the sum tendered.


author: Mehaffy, J.

text:
    Clark v. Matlock.
    4-3612
    Opinion delivered November 26, 1934.

      McMillan é McMillan, for appellants.

      J. H. Loohadoo, for appellee.
   Mehaffy, J.

The appellee brought suit against the appellants and alleged that Grady Russell, appellee’s intestate, before his death rented land from the appellants, and alleged that the fence inclosing the land rented was bad, and that the- crop was destroyed by cattle.

Before the suit was brought, Grady Russell died, and W. T. Matlock was appointed administrator of the estate. The suit was for $100 damages. There was a jury trial and verdict and judgment for $70. To reverse this judgment, this appeal is prosecuted.

There is no dispute about appellee’s intestate having rented the land, and no dispute about the crop having been destroyed. Appellee was permitted to prove that it was the custom in that locality for the landlord to keep up the fence around a farm when it was rented. There is, however, no evidence tending to show an agreement on the part of the appellants to make repairs.

This ease is ruled by the case of Rundell v. Rogers, 144 Ark. 293, 222 S. W. 19. This court said in that case:

“ ‘Unless a landlord agrees with his tenant to repair leased premises, he can not, in the absence of a statute, be compelled to do so,’ is a rule of law well established in this State and elsewhere. * * !* A local custom can not be shown in order to render the landlord liable for failure to make repairs in contravention of the above well-established rule.”

The evidence as to the local custom was therefore incompetent, and the court erred in permitting it. If the evidence showed that the landlord agreed to keep' the fence in repair, or if the evidence showed that the contract was made between the parties that the landlord should keep up the repairs, or that they should be governed by the local custom, then evidence of the custom would be admissible.

For the error indicated, the judgment is reversed, . and the cause remanded for a new trial.


text:
    Western Union Telegraph Company v. Philbrick.
    4-3605
    Opinion delivered November 26, 1934.

      Francis R. Stark, Elmer L. Lincoln and Rose, Hemingway, Cantrell é Loughborough, for appellant.

      M. V. Moody and W. S. Atkins, for appellee.
   McHaney, J.

Appellee brought this action against appellants to recover damages for personal injuries sustained by her when struck by Daniel McG-rew, the other appellant’s messenger boy, on a bicycle, as she attempted to cross East Markham Street between the intersection in the 500 block in the city of Little Rock, on April 21, 1933. In the midst of the trial after a number of witnesses had been examined, the following occurred:

“The court: At this point in the trial, the court is advised that there is a message to one of the jurors, Mr. Allen Johnson, to the effect that his sister is at the point of death. Whereupon the court excuses Mr. Johnson from the jury, and announces its intention of proceeding with the trial with eleven jurors. The defendant moves the court to declare a mistrial, which the court declines to do.” “Mr. Lincoln: The defendant excepts.”

The case proceeded over appellants’ objections before the eleven jurors, and a verdict was returned against appellants signed by all eleven jurors, upon which judgment was entered and from which comes this appeal.

For a reversal of the judgment against them appellants first insist that the court erred in continuing the trial with only eleven jurors over their protest. This assignment of error must be sustained. Section 7 of the Declaration of Rights, which is § 7 of article 2 of our Constitution, reads as follows: “The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law.”

In construing this section, this court in Minnequa Cooperage Co. v. Hendricks, 130 Ark. 264, 197 S. W. 280, held that it referred unquestionably to the jury trial as known and recognized by the common law, and further held that the word “jury” at common law means twelve men, and that the Legislature could not abridge the number. The earlier decisions of the court in construing similar provisions of an earlier Constitution were there reviewed. Section 7, article. 2, of our Constitution was amended by amendment No. 16, so as to read as follows: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in jury trials in civil cases, where as many as nine jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury; provided, however, that where a verdict is returned by less than twelve jurors, all the jurors consenting to such verdict shall sign the same.” This amendment to the Constitution clearly recognizes that a jury must consist of twelve jurors. Of course, the parties could have consented to a continuation of the trial with eleven jurors,but appellants did not consent. On the contrary, they moved for a mistrial because the juror was excused, and excepted to the refusal of the. court to order a mistrial.

But appellee says that appellants waived the legal number of jurors by proceeding with the trial and their acquiescence therein, by the questioning of witnesses and moving the court for a peremptory instruction, all of which, it is insisted, amounted to a waiver of a jury of twelve persons. We cannot agree with this argument. Cases cited by counsel for appellee are not in point. Appellants had the constitutional right to a trial by a jury of twelve persons, and cannot be held to have waived this right by proceeding to defend this action before a jury of eleven. They were compelled to do so by order of the court or else abandon further participation in the case. Nor does the fact that all eleven of the jurors signed the verdict help the situation, as appellants were entitled to have twelve jurors present, and it cannot be said that the result would have been the same had the twelfth man been present. This, however, could make no difference as to whether the result might or might not have been the same, as appellants’ constitutional rights were invaded.

Other questions are argued by counsel for appellants for a reversal of the judgment, but, inasmuch as they may not occur again in a subsequent trial, we refrain from a discussion of them.

For the error indicated, the judgment will be reversed, and the caused remanded for a new trial.