author: Mehaffy, J.

text:
    Arkansas General Utilities Company v. Smith.
    4-3261
    Opinion delivered December 11, 1933.

      W. E. Patterson and Cockrill, Armistead & Rector, for appellant.

      Surrey E. Gilliam, for appellee.
   Mehaffy, J.

On April 19, 1932, Hopkins Wade, of El Dorado, Arkansas, filed his complaint in the Union Circuit Court against the Arkansas General Utilities Company, and S. E. Morgan, E. L. Pye, Jesse J. Craig, Citizens’ Light & Power Company, and Eepublic Power & Service Company. The plaintiff in the case alleged that there was a certain amount of indebtedness due him on a contract, and also alleged several assignments of the contract, but the complaint as filed was a suit at law on contract.

The Arkansas General Utilities Company, one of the defendants in said suit, filed a motion to require plaintiff to make his complaint more definite and certain. The plaintiff thereupon filed his response, and amended his complaint, and again prayed for judgment for the amount set out in the original complaint.

The contract, and several assignments, were filed as exhibits to plaintiff’s complaint. Thereafter, the plaintiff filed, in vacation, an amendment to his complaint, asking that certain other parties be made defendant, and that summons issue against them.

Thereafter, on September 17, 1932, the defendant, Arkansas General Utilities Company, filed a general demurrer, which, however, was never submitted to nor acted upon by the court. On December 31st, the defendant, Arkansas General Utilities Company, filed its answer, setting up certain equitable defenses, together with its motion to transfer the cause to equity, and Baylor House, receiver, and Perry County, filed an intervention, asking that the cause be transferred to equity.

On January 10, 1933, the cause was transferred to equity, as requested by defendant and interveners.

On March 23, 1933, the plaintiff filed his motion to transfer the cause back to the law court, and alleged that, on March 17,1933, a stipulation was entered into between Baylor House, receiver, and Dean, Moore & 'Brazil, attorneys for the receiver, and S. E. Gilliam, attorney for the plaintiff, that consent judgment should go in favor of Wade, and against Baylor House, receiver, on said intervention. On the same day, the chancery court of Perry County authorized and directed said Baylor House to enter into such stipulation. The stipulation provided that consent judgment should be entered; that Baylor House should take nothing by reason of intervention, and that the same shall be dismissed for want of equity.

On April 11, 1933, the defendant, Arkansas General Utilities Company, filed a cross-complaint against plaintiff and six other persons, all of whom, except Maude W. Morgan, were plaintiffs in the original suit, and moved to transfer the cause, and asked for an accounting. On April 11, 1933, James G. 'Barr filed an intervention as a minority stockholder in defendant, Arkansas General Utilities Company, and also as holder of bonds of the holding company, and asked for equitable relief. On April 28, Neill C. Marsh filed his separate answer to the complaint, and to the cross-complaint of defendant, Arkansas General Utilities Company.

Thereafter, the chancery court made an order remanding the cause to the circuit court for trial. The Arkansas General Utilities Company and James G. Barr both objected and excepted to the cause being remanded. Thereupon, the Arkansas General Utilities Company and James G. Barr filed their petition for a writ of mandamus, commanding, requiring and directing the Honorable Walker Smith, chancellor of the seventh chancery circuit of Arkansas, to take and assume jurisdiction of said cause, and for other relief.

A response to said petition was filed, alleging that no grounds were stated in the petition entitling any of the parties to equitable relief, and also stated that they had a complete and adequate remedy at law; that the plaintiff, Hopkins Wade, is entitled to a trial by jury, and that said cause was transferred to the chancery court solely on the petition of Baylor House, receiver, wherein said Baylor House was an intervener in said cause, and prayed for a cancellation and rescission of the assignment of the contract sued on. Respondent also alleged that, before petitioners were entitled to a writ of any kind, they must first show that both the Union Circuit Court and Union Chancery Court refused to try the case.

The petitioners first contended that the general rule is that, where a judge declines to proceed with the trial of a case properly within the jurisdiction of the court'over which he presides, he may be compelled to exercise that jurisdiction by mandamus, except where the right .exists to review the action by appeal or writ of error. The petitioners contend that a case squarely in point is the case of Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833. As to whether the chancery court or circuit court has jurisdiction to try this case depends upon the statement of facts in the pleadings, and this court stated in the case relied on by petitioners that, where the jurisdiction of the superior court to try a cause or hear an appeal depends on the evidence of certain facts, and that court has, upon the evidence consisting either of affidavits or of the record, made its determination as to the facts, although erroneously, this court cannot, in mandamus proceedings, go behind this determination, and itself consider from the evidence, whether or not the jurisdiction existed.

There were no facts stated in the pleadings in the original cause that justified a transfer of the case from the law court to equity. The original suit was simply a suit on contract, and everything pleaded by the defendant as a defense could properly be tried in a law court. The intervention of Baylor House, receiver, stated no facts that justified a transfer to the chancery court; but, even if it did, if the issues raised by the intervener were purely equitable, the intervener would have no right to say in what court it should be tried; he could intervene and try his case in court where the original suit was pending, or, if he wanted to go to equity, he could bring an independent suit. But in this case the issues raised by the intervener could have been properly tried by a law court. In addition to this, before the chancery court ever met and assumed jurisdiction, the intervener and his pleadings passed out of the case, and there was therefore nothing left but the original suit. It is true that J. G. Barr intervened as a minority stockholder, but he had no right to intervene and ask for a transfer of the cause; as a matter of fact, the corporation was representing him and all other stockholders. If the chancery court, in refusing to exercise jurisdiction, had thereby deprived the petitioners of a right to try their cause, this court would issue a writ of mandamus compelling it to try it.

In the case of Automatic, Weighing Co. v. Carter, 95 Ark. 118, 128 S. W. 557, this court said: “We do not deem it necessary to set forth the allegations of said answer and cross-complaint, or to determine whether or not any equitable defense is therein set forth, or whether or not the circuit court erred in transferring the case to the chancery court, or whether or not in the present status of the case such order of the circuit court was an exercise of judicial discretion which should not be controlled by mandamus; because the petitioner has not shown that he has no other adequate remedy, and that he cannot secure such remedy by following said case to the chancery court to which it has been transferred. The writ of mandamus is only employed in unusual cases, and where no other remedy is available.”

The court, in the same case, also said: “It is believed to be well settled that the writ of mandamus is not to be considered as a writ of right, but it is understood to be within the discretion of the court to grant it, and it is held to be a general rule that the party applying for this writ must show a specific legal right, and the absence of any specific remedy to induce the court to grant it.”

Either the chancery court or the circuit court may, within its judicial discretion, determine whether it has jurisdiction, and this judicial discretion will not be controlled by mandamus. Of course, if neither the chancery court nor the circuit court would assume jurisdiction, then the writ will be issued to compel either the chancery court or the circuit court to assume jurisdiction, but where either court, in the exercise of judicial discretion, transfers a case to the other court, the exercise of such judicial discretion will not be controlled by mandamus.

The petitioners in this case have a complete and adequate remedy, and the writ will therefore be denied. It is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Shimek v. Janesko.
    4-3315
    Opinion delivered December 11, 1933.

      J. F. Holtzendorff and John D. Thweatt, for appellant.

      Emmet Vaughan, A. G. Meehan and John W. Moncrief, for appellee.
   Mehaffy, J.

An election was held on May '20, 1933, for the purpose of electing three school directors for School District No. 55, Prairie County, Arkansas, a rural school district, which was required to elect three school directors. The returns of said election were filed with the county clerk of Prairie County on May 23, 1933, which returns included the oath of office of judges and clerks, poll book, ballots and certificate of election.

On June 20, the county court met and canvassed the returns, and, by its order declared and certified that Steve Shimek, Harry Seidenschwarz • and Paul Lorinc received the highest number of votes, respectively, for the offices of directors for the three, two and one-year terms, and declaring Steve Shimek elected for the three-year term, Harry Seidenschwarz for the two-year term, and Paul Lorinc for the one-year term.

The appellees, J. F. Janesko and .Joe Bednar, each received votes for the office of director, and were present at the canvass of the returns, and appealed from the order of the county court to the circuit court.

When the cause was called in the circuit court, a motion was filed to dismiss the cause. The ground stated in the motion to dismiss was that the county c'ourt had no jurisdiction to declare the results of the election. The circuit court rendered its judgment, sustaining appellees’ motion, and ordered the cause dismissed for want of jurisdiction in the county court. From this order, an appeal is prosecuted.

Appellant first contends that the county court had ’jurisdiction to canvass the vote and certify the results.

Act 169 of the Acts of 1931, in § 30, provides that the returns of annual school elections shall be made to the county superintendent of schools immediately after the election, and that the county superintendent shall call a meeting of the county board of education within 15 days after the election, and that said board of education shall canvass the returns and make proper record of the vote, and certify the results to the county clerk for permanent record in his office. The same section also provides that any contest of any results in any election in any school district shall be brought within 15 days after such election, if the results thereof shall have been certified to the county clerk five days previously, or within 5 days after such results have been certified, and not thereafter. The section further provides that the county board of education shall hear and decide all contests, make their findings thereon, and that such findings shall be conclusive subject to appeal to the circuit court within 10 days.

It will be observed that the appeal is from the findings and order where there is a contest, and no appeal is allowed otherwise. Therefore, under act 169, the board of education canvassed the vote and declared the result. If any person who had been voted for for director desired to contest the election, he might do so within 15 days after such election, or within 5 days after such result had been certified. If the result was not certified until 15 days had expired, the contestant would have 5 days thereafter in which to contest the result.

Act 247 of the Acts of 1933 abolished county boards of education, and transferred the powers and duties of said boards to the county courts. Therefore the county court had the same power and the same duty, with reference to Canvassing the vote and declaring the results, as the county board of education had prior to the passage of act 247 of 1933. Prior to the passage of that act, the returns were made to the county superintendent, but the county board of education canvassed the vote and certified the result. Under act 247 of 1933, it became the duty of the county court to canvass the returns and declare the result.

This action on the part of the county court was conclusive, unless, within the time allowed by law, a contest was filed. The court, in canvassing the vote and declaring the results, was not acting in a judicial capacity, but in the same capacity that the board of education formerly acted, and the findings of the county court are as conclusive as the findings of the board of education under the former law. No appeal could be taken from this order, but any person who had been voted for for school director might file a contest, and it was the duty of the court to hear the contest, make its findings, and render its decision, and from this order an appeal could be prosecuted to circuit court.

In the instant case, the county court, as a canvassing board, found that Steve Shimek, Harry Seidenschwarz and Paul Lorinc received the highest number of votes, and were elected; Shimek for three years, Seidenschwarz for two years, and Lorinc for one year.

This finding and declaration of result could only be changed by contesting the election, and, as no contest was filed within the time allowed by law, the parties above named are directors of said district, and the judgment is reversed, and the cause dismissed.


author: McHaney, J.

text:
    City National Bank v. Riggs.
    4-3315
    Opinion delivered December 11, 1933.

      James B. McDonough and Joseph R. Brown, for appellant.

      Watts & Wall, Daily & Woods, G. L. Grant, and Hill, Brizzolara & Fitzhugh, for appellee.
   McHaney, J.

On July 29, 1927, C. B. Johnson and appellee, Jessie Johnson, his wife, executed and delivered to appellant, City National Bank, agent, hereinafter called the bank, twenty-five $1,000 notes, due and payable three years after date, and, to secure same, the Johnsons also executed and delivered their mortgage to the bank (which was duly recorded) covering four separate pieces of real property in the city of Fort Smith, one piece being a garage building on North Eighth Street, described as lot 9, block 30, city. The bank, from August 1st to the 6th, 1927, sold said notes to the appellees as follows: To J. A. and P. L. Biggs, $7,000; to E. N. King, $2,000; to Mrs. D. B. Taylor, $8,000; and to appellant, Mrs. Jessie A. Bracht, $8,000. No assignment of said notes nor of the lien of said mortgage was made of record, but the notes were indorsed to the purchasers without recourse. The mortgage, after describing the above-mentioned notes, contained this clause: “It is further agreed that this mortgage is made to secure any and all other indebtedness that may be due and owing to the mortgagee by the mortgagors.”

On August 16,1928, the mortgagor, Johnson, sold the North Eighth Street garage property for $12,300, and the bank released on the margin of the record the property'from the lien of the mortgage without the knowledge or consent of any of the note-holders. The $12,300 was deposited in the bank to Johnson’s credit, and he shortly thereafter, or at the same time, paid to the bank for one of the note-holders (Mrs. Bracht) $4,000, and to it on a debt due by Johnson subsequently incurred and due it on separate note the sum of $7,500, leaving a balance to his own credit from this source of $800 less a small amount of interest paid on the Bracht notes.

When the remainder of the notes fell due in July, 1930, Johnson was unable to pay them, and sought a renewal. The bank negotiated with the note-holders to this end, and some, or at least one, of whom demanded additional security on account of the depressed condition of property values, not knowing that a portion of the security had been released by the bank. Johnson had no additional property to include in the new mortgage, but his wife was induced to include her homestead therein. The new mortgage was executed by Mr. and Mrs. Johnson, not for $21,000, the balance due on the old mortgage, but for $25,000, which included an additional $4,000 debt Johnson owed the bank, and the notes for which were sold to other investors.

Default having been made in the payment of interest and taxes in 1932, this action was instituted to foreclose under an acceleration clause in the mortgage by appellees, J. A. and P. L. Biggs, who made the mortgagors, the bank and the other note-holders, defendants therein. Judgment was prayed against the Johnsons, and a receiver was asked. Appellee, Mary Parke Taylor, a resident of St. Louis, filed answer and cross-complaint. She admitted the allegations of the complaint, and, in her cross-complaint, set up her ownership of $8,000 of the notes, for which she prayed judgment. She also charged the bank with having wrongfully and unlawfully satisfied the original mortgage as to the garage, as above set out, and with having wrongfully diverted the proceeds of the sale to itself and others, and prayed judgment against it for 8/25ths of the purchase price of said lot. Thereupon, the Biggs amended their complaint, and prayed judgment against the bank for 7/25ths of the $12,300, making similar allegations to those of Mrs. Taylor. C. B. Johnson and Jessie M. Johnson filed an answer and cross-complaint. The answer was a general denial, but the cross-complaint charged that Mrs. Johnson was induced to permit the inclusion of her homestead in the new mortgage of 1930 through the representations of the bank’s president, I. H. Nakdimen, that it was merely a matter of form, and that he and the bank “would personally save them harmless by reason of the inclusion of the homestead, and would personally guarantee the payment of the new note issue without resort to said homestead.” The prayer was for judgment against the bank and Nakdimen in the event they lost their homestead. Appellants made answer denying the wrongful diversion of the $12,-300 and the cross-complaint of the Johnsons. They also filed numerous demurrers and motions, all of which were overruled.

Trial resulted in a decree in favor of appellees. Mrs. Taylor was awarded judgment for 8/25ths of said $12,-300, and the Riggs 7/25ths, against the bank, for an unlawful and unauthorized diversion. The court found that the inclusion of the homestead of Mrs. Johnson in the new mortgage of 1930 was accomplished by the false and fraudulent representations made to her by the bank and its president, for which they are personally liable to her for whatever loss she may sustain by reason thereof, but that, as to the Riggs and Mrs. Taylor, their rights to resort to said homestead for the collection of their notes are not affected by the transaction between Mrs. Johnson and the bank. As to Mrs. Bracht, the court found that she had been paid the sum of $76.67 in excess of her proportionate share of the sale price of the garage property, and that, as to such excess, her claim in foreclosure proceedings shall be subordinated to that of Riggs and Taylor ; that E. N. King had sold his notes to the bank, and that the equities of Riggs and Taylor in the foreclosure were superior to that of the bank. The bank, Nakdimen and Mrs. Bracht have appealed.

Many errors are assigned in an extensive brief for a reversal of the judgment. We cannot argue them all in detail. It is first contended that the court erred in permitting the Riggs and Mrs. Taylor to change their action from one of contract to one of tort. We think not. Primarily the action was one to foreclose a mortgage. It continued to be such, and was one cognizable in a court of equity. When Mrs. Taylor filed her cross-complaint against the bank for the wrongful satisfaction of the mortgage as to the garage property and the wrongful diversion of the sale price thereof, the action was not converted into one on tort wholly, as she still sought the foreclosure of the mortgage, even though other relief was asked. The general rule is that, when a court of equity acquires jurisdiction for one purpose, it will retain it for all purposes, and will grant all the relief, both legal and equitable, to which the parties may be entitled. Merchants’ & Farmers’ Bank v. Harris, 113 Ark. 100, 167 S. W. 706; Taylor v. Harris, 186 Ark. 580, 54 S. W. (2d) 701.

It is next said the unlawful diversion of the $12,300 was not done by the bank or Nakdimen, but by C. B. Johnson. But Johnson could not have sold lot 9, block 30, and could not have unlawfully diverted the money, but for the act of the bank in satisfying the mortgage as to said lot. Assuming, for the sake of argument, that Johnson did it, .still the bank wrongfully put it in his power to do it by satisfying the record of the mortgage. It is true the bank assigned the notes without recourse, and it should have noted the assignment on the margin of the record of the mortgage, it being the only one that could have legally done so. The note-holders could not do so, and the mortgagor could not. The note-holders could have required it to do so. The record showed the bank, agent, to be the owner of the notes. If the assignment had been made of record, then the bank could not have released the mortgage legally. The necessary result is that the satisfaction of the mortgage and the misapplication of the proceeds of the sale to its own uses and purposes worked a legal fraud on the rights of the note-holders, whether intended to be such or not. Nor does it help the matter for the bank that the notes and mortgage were renewed. The undisputed proof is that neither the Riggs nor Mrs. Taylor had any actual knowledge of the transaction until long after the renewal in 1932. Constructive notice, the record of the satisfaction, was not sufficient, as “the general rule is,” as stated in Bank of Hoxie v. Woollen, 181 Ark. 843, 28 S. W. (2d) 61, “that, in order that a ratification of an unauthorized transaction of an agent may be valid and binding, it is essential that the principal have full knowledge of all the material facts.” Ark. Valley Bank v. Kelley, 176 Ark. 387, 3 S. W. (2d) 53; Haines v. Rumph, 147 Ark. 425, 228 S. W. 46; DeCamp v. Graupner, 157 Ark. 578, 249 S. W. 6; Martin v. Hickman, 64 Ark. 217, 41 8. W. 852 — all cited in Bank of Hoxie v. Woollen, supra. Moreover, the bank was the agent of these note-holders, assumed to act as such by collecting the interest and by negotiating a renewal, in addition to designating itself agent in the mortgage, and it was under the legal duty to act for its principals in the utmost good faith and not for its own benefit. If the proposed sale of lot 9, block 30, had been communicated to the note-holders, and they had consented to the satisfaction, or if the proceeds of the sale had been applied pro rata to the satisfaction of all the notes, then there would be a wholly different situation, and there would be some force to the argument of ratification and estoppel. We cannot agree that a mortgagee, who has sold the notes secured by the mortgage without making an assignment thereof of record, may satisfy the record of the mortgage without the knowledge or consent of the assignees without making himself personally liable for the loss sustained. Neither does the general “other indebtedness” clause above quoted authorize the bank to satisfy the record and appropriate the proceeds to the payment of another debt due it by Johnson. Berger v. Fuller, 180 Ark. 372, 21 S. W. (2d) 419; American Bank & Trust Co. v. First Nat. Bank, 184 Ark. 689, 43 S. W. (2d) 248; State Nat. Bank v. Temple Oil Co., 185 Ark. 1011, 50 S. W. (2d) 980.

The next assignment for discussion relates to the rights of Mrs. Jessie M. Johnson, whose homestead was included in the second or renewal mortgage. A number of grounds are argued under this heading — some of them being that the evidence is insufficient to support the decree; that the certificate of acknowledgment contradicts Mrs. Johnson; that Nakdimen was without power to make the agreement regarding the homestead; that she is estopped from so claiming; that her testimony contradicts a written instrument in violation of the parol evidence rule; and that she and her husband ratified the mortgage. We think the evidence is sufficient to support the decree, even under the clear and convincing rule. Mrs. Johnson and her son testified very positively that it was agreed between her and the bank that the inclusion of the homestead was a mere formality, and that she would be protected from foreclosure on it. This was denied by the bank’s president. When we consider what the bank did in releasing the mortgage, and in taking the renewal mortgage without advising the note-holders of the true facts, and by misrepresenting to them it had required a lot of additional security when, in fact, it had not required any additional security, but had substituted a lot of substantially less value for the lot wrongfully released, we cannot say the evidence is not sufficient to support the court’s finding. On the contrary, we agree with the trial court. It is argued that the bank loaned Johnson $4,000 in new money when the renewal mortgage was taken. What the bank really did was to take up $4,000 of Johnson’s unsecured debt to it. We think the evidence sufficient to show that an actionable fraud was perpetrated upon Mrs. Johnson, and that the agreement to protect the homestead does not fall within the statute of frauds, nor is it violative of the parol evidence rule. In Pierce v. Sicard, 176 Ark. 511, 3 S. W. (2d) 337, this court said: “It is conceded that the general rule in nearly all the States is that fraud must relate, to a present or pre-existing fact, and cannot ordinarily be predicated on promises or statements as to what will be done in the future. ’ ’ It then cites Lilly v. Barron, 144 Ark. 422, 222 S. W. 712, for the exception to the general rule that, “if the promise is accompanied with an intention not to perform it, and is made for the purpose of deceiving the person to whom it was made, and induces him to act in the premises, the same constitute fraud.” Under the evidence in this case the court was justified in finding fraud in this connection. It is also the general rule that the statute of frauds does not apply if a new consideration passes between the promiser and the promisee. Here there is no controversy between Mrs. Johnson and the note-holders. She concedes they are protected by her homestead if the remaining property is insufficient to satisfy the debt.- The trial court found that the additional security was sought by the bank and Nakdimen for their benefit, and that it was included for their benefit. In such case the statute of frauds does not apply. Gale v. Harp, 64 Ark. 462, 43 S. W. 144; Spear Mining Co. v. Shinn, 93 Ark. 346, 124 S. W. 1045; United Walnut Co. v. Courtney, 96 Ark. 46, 130 S. W. 566. Nor is the parol evidence rule violated. This court has many times held that parol testimony is admissible to show what the real contract is where the writing does not evidence the entire contract. Kelly v. Carter, 55 Ark. 112, 17 S. W. 706; Graham v. Remmel, 76 Ark. 140, 88 S. W. 899; New Home Sewing Machine Co. v. Westmoreland, 173 Ark. 769, 293 S. W. 1030.

We think it unnecessary to further discuss the arguments made by counsel for appellants, all of which we have examined and find them without substantial merit. The decree is correct, and must be affirmed. It is so ordered.


text:
    Orr v. Griffith.
    4-3240
    Opinion delivered December 11, 1933.

      W. G. Dinning, for appellant.

      A. M. Coates and Brewer & Cracraft, for appellee.
   McHaney, J.

Appellant is the administrator, with the will annexed, of the estate of James Howard, who died in Phillips County, July 22, 1930. He brought this suit in the Phillips Chancery Court against all the devisees and legatees named in will to obtain a construction thereof by the chancery court. The will, omitting formal parts, is as follows:

‘ ‘ 1st. It is my desire that my funeral expenses and all of any just debts be fully paid and discharged and given preference in the settlement of my estate.
“2nd. It is my desire to be buried on the Shelton lot in Maplelawn Cemetery, located in Paducah, Kentucky.
“3rd. I will and bequeath the sum of three hundred dollars to the following friends, to be divided as follows: One hundred dollars to the infant son, James Howard Griffith, of Mr. and Mrs. John Griffith, of Helena, Arkansas ; fifty dollars each to the two infant children of Mr. and Mrs. J. J. Billingsley, of Helena, Arkansas; one hundred dollars to Joe Willie Smith (col.), of Helena, Arkansas.
“4th. Of my personal effects, I will and bequeath my watch to Mr. Jas. E. Shelton, of Paducah, Ky., and my ring to Mr. Slavie Mall, of Paducah, Ky.
“5th. I will and bequeath a $2,500 life insurance policy, said policy being payable to my estate, to Mrs. Kathren Shelton Ward, daughter of Mrs. Birtie E. Shelton, of Evansville, Ind., said bequest being made solely for the benefit of Mrs. Birtie E. Shelton, and to be paid to her daughter, Mrs. Ward, as custodian, to be used by her as she sees fit.
‘ ‘ 6th. Of the balance of my personal property, consisting of Gulf Oil Corporation certificates of stock; U. S. Government bonds; banking account in the Interestate Bank, and the Merchants’ & Planters’ Bank, both of Helena, Arkansas; a sick and accident policy in the sum of $5,000, Business Men’s Assurance Company of America, of Kansas City; and all other real or personal property of which I may die seized, I will and bequeath to the following relatives, to be divided equally, share and share alike, said relatives being the children of Mr. and Mrs. Joe Shelton, of Evansville, Ind., and the children of Mrs. Mollie Shelton (widow), of Padncah, Ky.”

The particular construction of this will desired was of the 3d, 5th and 6th paragraphs, the administrator being in doubt as to whether the bequests made in these paragraphs are specific, demonstrative, or general bequests.

The court construed the will as follows: That the bequests made in section 3 were general bequests and that the amount specified to be paid to the devisees therein named were to be paid out of the general assets after the payment of costs of the administration and prior claims against said estate made so by said will or by law; that section 5 of the will is a specific bequest, and that the devisee named therein is entitled to receive the full amount of the proceeds of the insurance policy without being required to contribute pro rata with the devisees named in section 3; and that the bequests contained in the 6th paragraph of the will are residuary and should be paid out of the remainder of the general assets of said estate after payment of the costs of administration, the claims of said estate made prior by the will or by law and the payment of the legacies named in the 3d paragraph of said will. The administrator has appealed.

Assuming, without deciding, that the administrator may prosecute this appeal when the legatees themselves are not complaining, we are of the opinion that the court correctly construed the will. It is conceded by appellant that the construction as to the 5th paragraph of the will is correct, that the bequest there made is a specific one, but it is contended that the construction as to paragraph 6 is incorrect, and that the bequests there made are likewise specific; and that the legatees mentioned in both paragraphs 5 and 6 should be required to bear pro rata the cost of administration, and to pay pro rata the claims probated against the estate, in accordance with the rule announced in Holcomb v. Mallin, 167 Ark. 622, 268 S. W. 32. It will be noticed that the 6th páragraph of the- will starts out by saying “of the balance of my personal property, consisting,” enumerating certain stocks, bonds, deposits and insurance. It then continues, “and all other real or personal property of which I may die seized,” etc. This is nndonbtedly a residuary clause. The residue of an estate is that which remains after the payment of all costs, debts and particular legacies. 28 R. C. L., p. 296. In 28 R. C. L., ,p. 297, it is said: “The general rule is that an enumeration of specific articles in a residuary clause will not make the bequest specific as to such articles, unless they are designated in such a way as to differentiate them from the residue.’-’

So the fact that the testator in section 6 of his will named the kind of personal property he was bequeathing does not change the clause from a residuary to a specific bequest.

The court having correctly construed the will, its judgment must be affirmed.


author: Butler, J.

text:
    Phillips Petroleum Company v. Berry.
    4-3229
    Opinion delivered December 11, 1933.

      R. H. Hudson, Cecil Hunt and Basil Baker, for appellant.

      J. C. Young, Jr., and Gladish & Young, for appellee.
   Butler, J.

Mrs. Lila Berry, the appellee, was the owner of a frame dwelling house with a garage and barn adjoining, located on lot No. 38 in Lake City. The appellant Phillips Petroleum Company occupied a part of lot No. 38, adjacent to Mrs. Berry’s property as a “bulk sales station” for the storing and distribution of petroleum oil products. On that part of the lot owned by the appellant was a frame building, part of which was used for storing motor oil and other lubricants and a part was used for the purpose of driving trucks into it and loading them with gasoline and coal oil from tanks situated nearby. In an open space adjacent to the warehouse there were three tanks, two used for gasoline and one for kerosene. The two gasoline tanks stood nearest to the building and the kerosene tank some further distance away. On the 29th of October, 1932, there was placed upon a railroad side track which ran near the building a tank car of kerosene which was unloaded by means of a pump with a line of pipe extending from the tank car to the kerosene tank. This tank car was unloaded, and when this was done there were about 8,000 gallons of kerosene in the kerosene tank. After this operation, another tank car containing gasoline was placed on the side track in the position for unloading, and, while appellant’s agent was emptying* it into one of the gasoline tanks a fire was discovered in that part of the warehouse used for the purpose of permitting trucks to enter and from there to be loaded.

Clyde Sanders was the appellant’s agent engaged in unloading the tank cars, and when the fire was discovered he went to its point of origin but- found that it had made such headway and increased to such an extent he was unable to enter. He returned immediately to the tank car and cut off the flow of gasoline therefrom, and attempted to close the valve which entered the gasoline tank, but was unable to completely close it before he was driven away by the flames which had by that time spread into that part of the building where the lubricants were stored and which began to burn fiercely. The flames from the burning warehouse extended to the tank ear and enveloped the storage tanks, melting the connection and allowing the gasoline and kerosene to flow out and causing the fire to burn with increasing fierceness. One of the gasoline tanks was empty at that time, but the other contained about 6,000 gallons of gasoline. During the progress of the fire the tank containing the kerosene exploded so that its contents were thrown out into the fire which spread to, and destroyed, the buildings of Mrs. Berry.

Mrs. Berry brought this suit to recover damages, alleging that the fire was occasioned by the negligence of the appellant in the maintenance and operation of its plant, in that it permitted inflammable substances to remain on and around the premises, and permitted the interior of the warehouse to become saturated with oil and gasoline, and to remain in that condition; that appellant was negligent in failing to safeguard its premises; that the storage tanks were provided with valves so constructed as to release gas accumulated therein; and that these valves failed to function by reason of their defective condition which resulted in the explosion of the kerosene tank. It was further alleged that the doors of the warehouse were permitted to remain open and unguarded, and that on account of this a mentally defective boy gained entrance to the warehouse where conditions were such that a fire might easily be started, and it was appellee’s'belief that the fire originated from a lighted match handled by the said defective boy, or from some other act of his unknown. Appellee alleged that the fire resulted in the loss of her dwelling house and personal property in the sum of $4,116.30, for which she prayed .damages.

An answer was filed, admitting the fire and the destruction of appellee’s property, ibut denying that the same was occasioned b3^ any negligence on the part of the appellant and denying speeificalfy all the allegations of the complaint charging negligence.

There was a trial which resulted in a verdict in favor of the appellee in the sum of $1,250.

Numerous grounds of error are assigned on appeal, the principal one of which is that no negligence was proved and that the court erred in giving to the jury instruction No. 1, for the appellee, which is (quoting from appellant’s brief): “To the. effect that if the defendants had large storage tanks, which contained large quantities of gasoline and kerosene, and had a warehouse near to the storage tanks, and if they negligent^ permitted their premises to be in an inflammable condition and they negligently failed to fence the property or provide guard or safeguard for the same, or that they neg'ligently permitted the safety valves on the kerosene tank to become defective and in an unsafe condition, and if the. jury found that such negligence on the part of the defendant, if any, was the approximate cause of the injury to plaintiff’s property, then the verdict should be for the plaintiff; otherwise for the defendants.”

Complaint is also made of the court’s refusal to grant a number of instructions requested by the appellant, which, for the sake of brevity, will be grouped and disposed of under one head. It is also the contention of the appellant that the court erred in permitting Mrs. Berry to testify to the destruction of her household goods, that element of damage not having been alleged in her complaint, and that evidence was erroneously admitted over appellant’s objection to the effect that there was no fire department maintained in Lake City. It is also contended that, since the evidence shows that Mrs. Berry, sold the preanises occupied by the appellant with knowledge that it was to be used for storing petroleum products and for their distribution therefrom and that she assumed the risks incident to such operation, one of which was the danger from fire breaking out therein.

The evidence regarding the nature of the construction of the warehouse, the erection of the storage tanks, and how the business of the appellant was conducted, is practically undisputed. It was shown that at all times large quantities of highly inflammable substances were kept in storage, and that in the necessary conduct of the business small quantities of gasoline and other oils would fall upon the ground within the warehouse and, were suffered to remain there; that the agent of appellant and his helpers took care of the plant and were engaged in conveying gasoline and other petroleum products to various retailers, leaving the property unprotected'in their absence, but that when they did leave, the doors of the warehouse would be closed. It was shown that there was no fence erected, or other means taken, to keep intruders from the premises and that at the time of the fire in question the double doors on the east side of the building were open, and that the defective boy had been discovered there some time before the fire and had been driven away. .

There is some evidence to the effect that at times children would.play upon the premises, and that the premises were not kept free from trash and weeds. It was also proved that at the time of, and just preceding, the discovery of the fire the double doors on the west side were closed' but those on the east were open and unguarded. Wlien Mr. Sanders discovered the fire it was necessary for him to pass around the building to the east side in order to enter, and when he reached the east doors he saw the defective boy standing there., and he told Mr. Sanders that it was he who had started the fire. It is evident that when Sanders found that a fire had started he did everything possible to prevent its spread and to save the property, and whatever negligence there was had occurred before this time. It may be admitted, as claimed by the appellant, that it was engaged in a lawful business, although the proof shows, and we take judicial knowledge of the fact, that it was one attended by more than ordinary dangers. The plant was used for the storing of petroleum products, all of which are highly inflammable, and it is well known that gasoline and kerosene are not only inflammable, but explosive, and, while we have held in the case of Waters-Pierce Oil Co. v. Knisel, 79 Ark. 608, 96 S. W. 342, that those engaged in the business of the appellant are clothed only with the duty of exercising ordinary care in its conduct, such care must be measured by the nature of the substances handled and the danger, according to the common experience of men, which might ordinarily result, so that, where a substance is inherently dangerous, ordinary care would be a much higher degree of care than if it were in its nature innocuous. It was therefore a question for the jury to determine wdiether, considering the nature of the business in which appellant was engaged and the place at which it was located, the appellant was negligent in failing to fence the premises or to take some other precaution to prevent the entrance of those who by some careless act might cause a fire to be started. Waters-Pierce Oil Co. v. Knisel, supra; Gibson Oil Co. v. Sherry, 172 Ark. 947, 291 S. W. 66; Wright v. Chicago, etc., 27 Ill. App. 200; Judson v. Giant Power Co., 107 Cal. 547, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. 146; Beal v. Seattle, 28 Wash. 593, 69 Pac. 12, 92 Am. St. 892, 61 L. R. A. 583; Sedita v. Steinberg, 105 Conn. 1, 134 Atl. 243, 49 A. L. R. 154; Stone v. Texas Co., 180 N. C. 546, 105 S. E. 425, 12 A. L. R. 1304, 11 R. C. L. 660; Quaker Oats Co. v. Grice, 195 Fed. 441; Van Fleet v. N. Y. & C. & H. R. R. Co., 77 N. Y. Supp. 636.

It was argued that the evidence shows that the kerosene tank was in perfect condition, and that therefore its explosion could not have been caused by any negligence on the part of the appellant, and that the submission to the jury of the question as to whether the appellant was guilty of negligence in the setting up and maintenance of this tank was error. On this phase of the case the evidence before us tending to support appellant’s contention is that of the agent, Sanders. He did not testify of any inspection he had made just prior to the fire or at any other time, but contented himself with the statement that the valves at the top of the kerosene tank were in good condition; that they were the same kind of equipment as used on all storage tanks and so constructed that they could not help but properly function. The valve about which he was testifying was located at the top of the storage tank, and was intended to work automatically so that when gas formed in the reservoir it would push the valve upward according to the degree of pressure and where the pressure was sufficient it would give as much as a space two inches in width. According to .the witness this valve worked on the same principle as a safety valve on a steam boiler. The gasoline tank was equipped with the same kind of valve, and also the tank car, and neither of these exploded, although the gasoline tank contained a great quantity of gasoline as did the tank car on the railroad track, both of which were nearer the fire than the kerosene tank, and it was observed that on this car the vaporized gasoline burned for several hours at the safety valve. The appellant gave no explanation why the kerosene tank exploded and that containing gasoline did not. An explosion did occur, the real cause being unexplained, and inference is allowable that it was caused by lack of proper care. Judson v. Giant Power Co., supra; Biddle v. Riley, 118 Ark. 218, 176 S. W. 134, L. R. A. 1915F, 902.

On the question of the instructions refused, some were grounded on the contention that the negligence of appellant in maintaining the plant, if any, was not the proximate cause of the destruction of appellee’s residence, and that the act of the intruder, whoever it was, who set the fire was the efficient intervening’ cause of the resulting damage. These instructions were properly refused, for the act of the child in starting the fire was a contributing cause, and had a direct causal connection with the original negligence. Where several causes combine to produce an injury, one is not relieved from liability because he is responsible for only one of these causes. It is sufficient 'to fix liability on him if, without his negligent act, the injury would not have occurred. Ark. L., etc., Co. v. Cook, 157 Ark. 245, 247 S. W. 1071; St. Louis, I. M. & S. R. Co. v. Steel, 129 Ark. 520, 197 S. W. 228; McDonald v. Snelling, 92 Am. Dec. 768. We think the jury might well have found that the condition in which appellant kept and maintained its property was one from which a person of ordinary experience and intelligence might have foreseen that the result complained of might ensue, and that therefore such was the proximate cause of the destruction of appellee’s property, and that there was no intervening efficient cause, but one which contributed only to the result. Wis. & Ark. Lbr. Co. v. Scott, 153 Ark. 65, 239 S. W. 391; St. Louis-S. F. R. Co. v. Williams, 98 Ark. 72, 135 S. W. 804; Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647.

Other of the instructions requested and refused told the jury as a matter of law that it was not the duty of the appellant to anticipate the presence of trespassers on its premises, and that there was no negligence in permitting the doors to remain open while the plant was in operation or while the manager or other employees were present or in failing to keep a guard to protect the property, and that as .a matter of law children might not reasonably be expected to trespass on the property. These instructions- were properly refused because all of them' presented questions for the jury to be determined from the evidence in the ease.

Instruction No. 5, requested by the appellant, presented no issue in the case and was properly refused. It dealt with the question of the location of the plant, and by it the jury were told that it could not find against the defendant because the sales plant was located in Lake City. The question for the determination of the jury was not where the plant was located as fixing liability of the appellant, and certainly had no place among the instructions given.

Appellant complains of the modification by the court of instruction No. 4 requested by it. The instruction as requested is as follows: “Even if you believe that there may have been some unknown or undiscovered fault or defect causing the explosion of the tank, not discoverable in the exercise of ordinary care, then there could be no recovery by the plaintiff by reason thereof. ’ ’ The court modified this instruction by .adding the words, “and the burden is on the defendants to show by a preponderance of the evidence that they exercised ordinary care to discover such fault or defect, if you find there was such fault or defect.” The court had previously given an instruction placing upon the appellee the burden in the whole case to show by preponderance of the evidence that the defendants were negligent in some of the particulars mentioned in the. complaint, and that such negligence, if any, was the proximate cause of the injury complained of, and, unless such burden was met by the plaintiff, the verdict of the jury should be for the defendant. "What we have said regarding instruction No. 1, and the inference arising from the fact of the explosion, disposes of appellants’ contention as to the modification made by the court, and since the jury were instructed that the burden on the whole case rested upon the appellee, there was no error in the modification.

On the question as to the admission of 'Mrs. Berry’s testimony regarding the value of her personal property destroyed, we are of the opinion that the appellant is in error in assuming that there was no allegation upon which to ground this evidence. In paragraph No. 12 of the complaint, there is the following allegation: “That, as a result of the loss of the dwelling house, furniture, personal property, etc., * * *; that the plaintiff was the owner of certain household goods and personal property of the total value of $562, etc. ’ ’

The testimony also as to the fact that there was no fire-fighting department in Lake City was admissible, as a circumstance, tending to show whether or not appellant was negligent in the way it maintained and operated its plant.

It is true, as contended by the appellant, that the evidence establishes the fact that appellee sold the. parcel of ground on which the appellant’s plant is located to its predecessors in title about twelve years before the destruction of her property, and that she knew that it was to be used in connection with the operation of a business for the dispensing of petroleum products, but it does not appear that she knew the extent of these operations or the manner in which they were to be conducted. Even if the appellee knew all this at the time she first sold the property, it by no means follows that the maxim “volenti non fit injuria” applies. It must be conclusively presumed that in making the sale to the predecessors in title of appellant, Mrs. Berry had the right to assume that proper care would be exercised in the conduct of the business, and she undoubtedly had a right to demand that such care be exercised.

We are of the opinion on the whole case that there was some substantial evidence to warrant the verdict of the jury, and, as no error appears in the conduct of the trial, the judgment of the trial court is correct, and it is therefore affirmed.


author: Johnson, C. J.,

text:
    Wasson v. Lightle.
    4-3239
    Opinion delivered December 18, 1933.

      Brundidge & Neelly, W. H. Gregory and Frauenthal & Johnson, for appellant.

      John E. Miller, C. E. Yingling and Roland H. Lindsey, for appellees.
   Johnson, C. J.,

(after stating the facts). The foregoing statement of facts demonstrates that all the conveyances here in controversy were made solely for the purpose of putting the property of J. E. Lightle and wife, Margaret Lightle, beyond the reach of Arkansas creditors. It is granted, of course, that J. E. Lightle and wife had the right, under the law, to prefer their kinfolks as creditors, but, before such conveyances are finally sus-' tained, it must be shown that they were supported by valuable considerations. We are not unmindful of the established rule that fraud is never presumed — neither are we unmindful that the burden is upon the party who alleges fraud to prove it. These rules are so permanently and definitely planted in our jurisprudence it is not necessary to refer to cases in support thereof.

Sections 4874 and 4878, Crawford & Moses’ Digest, provide:

“Section 4874. Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods and chattels, or things in action, or of any rents issuing therefrom, and every charge upon lands, goods or things in action, or upon the rents and profits thereof, and every bond, suit, judgment, decree or execution, made or contrived with the intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors and purchasers prior and subsequent, shall be void.
“Section 4878. No conveyance required by the provisions of this act to be recorded shall be valid or binding, except between the parties and their legal representatives, until the same shall have been .deposited in the recorder’s office for record; nor even then if shown to be made with intent to defraud prior creditors or purchasers, but shall be void against such prior creditors or purchasers.”

With these cardinal rules in mind, we have here the following outstanding facts: That prior to June 10,1930, J. E. Lightle held himself out, and was considered a very rich man in the vicinity of Searcy; he owned and possessed very valuable properties, both real estate and personal property. On June 10, 1930, he executed a deed to his father-in-law, J. W. McKinney, conveying valuable real properties in White County; this conveyance was purposely held off the record for several months. J. W. McKinney was not advised of its execution for several months thereafter. After the execution of this deed others were executed that practically denuded J. E. Lightle and wife of all real property situated in the State of Arkansas. After these properties passed to the kinsfolk of the Lightles, they were tossed about by the grantee similar to a cat playing with a mouse. During all this period of time, J. E. Lightle and wife remained in possession and control of this property as if their own. This court has repeatedly held that, where a deed is executed but the vendor remains in possession, it is within itself a badge of fraud. Godfrey v. Herring, 74 Ark. 186, 85 S. W. 232; Dennie v. Ball-Warren Commission Co., 72 Ark. 58, 77 S. W. 903; Little Rock & F. S. R. Co. v. Page, 35 Ark. 304; Puckett v. Reed, 31 Ark. 136.

It has long been the settled doctrine of this court that a conveyance from an insolvent debtor to his near relatives, while not sufficient of itself to establish fraud, yet, when added to other suspicious circumstances, may be sufficient evidence of fraud to justify the court in setting aside such conveyance. Melton v. State, etc., 177 Ark. 1194, 10 S. W. (2d) 500.

In addition to what we have just said, the learned chancellor found from the testimony in this case that all the deeds passed and exchanged between the appellees were executed to secure debts and were intended for security, and not to irrevocably pass the fee simple title to these lands. This was an affirmative finding that the deeds were not what they purported to be.

The manipulations of the appellees in the transferring and retransferring of the title to the lands contained in the conveyances here in controversy, a number of which were without consideration, were potent circumstances indicating that appellees were endeavoring to place their property beyond the reach of creditors. We are convinced from all the facts and circumstances appearing in this record that appellants made out a prima facie case of fraud against appellees, and that the onus of proof then shifted to appellees, to establish the. bona fides of the recited considerations appearing in these conveyances.

In the discharge of this burden, none of the grantees, other than J. W. McKinney, endeavored to defend these conveyances. J. W. McKinney did appear as a witness, but his testimony is such that we cannot attach any weight thereto. He testified that he could, and would, furnish voucher proof in support of his claimed indebtedness against J. E. Lightle, hut has never done so. From this we necessarily conclude that he had no such vouchers. Therefore, notwithstanding J. W. McKinney appeared as a witness, his debts stand upon the same footing as all others with no testimony to support the consideration therein stated other than as hereinafter recited.

It will thus be seen that the bona fides of all these transactions stand wholly and squarely upon the testimony of J. E. Lightle. It must be remembered that J. E. Lightle is the party who has manipulated all these conveyances. Likewise, he is the person who has denuded himself of all available property in this State, leaving an indebtedness of more than $60,000. It is true he testified to the bona fides of all the considerations in the conveyances here in controversy, but we cannot, and should not, attach any great weight to his testimony. It is the imperative duty of courts in weighing testimony to take in consideration the interest of the witness in the matter in controversy. When this is done, in reference to the testimony of J. E. Lightle, we conclude that his testimony was entirely insufficient to overturn the prima facie case made in behalf of appellants.

For the reasons aforesaid, the decree of the White County Chancery Court is reversed, in so far as the. real estate conveyances are concerned, which are set out in the statement of facts, with directions to enter a decree canceling same; otherwise, the decree is affirmed.


text:
    Jolly v. Smith.
    4-3259
    Opinion delivered December 18, 1933.

      Brewer & Cracraft, for appellant.

      W. G. Dinning, for appellee.
   Johnson, C. J.,

(after stating the facts). The principal contention of appellant for reversal is that Newton Gr. Smith was a felloAv-servant Avith James Surman, the driver of the delivery truck, and thereby assumed the risk of his negligence. A number of cases are called to our attention in support of this contention. We cannot agree that any case cited is decisive of the question here presented. The felloAY-servant doctrine, and the doctrine of vice-principal, arq wholly dependent upon the facts and circumstances in each particular case. We understand the fellow-servant doctrine, to be: “ Those engaged under the control of the same master, in the same common business, the purpose of which is to accomplish a single result.” Those servants who did not come within the letter of the rule are not bound by its consequences. In Haraway v. Mance, 186 Ark. 971, 56 S. W. (2d) 1023, this court had occasion to discuss in detail the many cases theretofore decided by this court, and courts of other jurisdictions. As applied by us in that case, the fellow-servant doctrine is : “ That one to be a f elloAA^-servant must be engaged in a common business, for a common master, the purpose of which is to accomplish a single result.” As appears from the statement of facts herein-before recited, the minor, Newton Gr. Smith, was not, as a matter of law, a fellow-servant with James Surman, the driver of the truck, and the trial court was correct in submitting this question to the jury. Dellinger v. Tilghmon, ante p. 146.

It is next insisted by appellant that young Smith was at the time of the injury a mere volunteer assist-, ing James Surman, the driver of the truck, in making wholesale deliveries of the dairy products. On this question, the testimony was amply sufficient for the jury to conclude that young Smith was not a volunteer in the assistance which he was rendering to the driver of the truck in making the deliveries on the wholesale route. The fact is, the driver of the truck testified in no uncertain terms that the delivery boys assisted him until 8:30 or 9:00 a. m. each day, on both the wholesale and retail routes alike.

Likewise, this question was submitted to the jury on proper instructions by the trial court, and. it has determined the question adversely to appellant. The assignment here discussed also disposes of appellant’s contention that young Smith was merely an invitee of the driver, James Surman, at the time of the injury. The testimony warranted the jury in finding that, at the time of the injury, young Smith was performing services for appellant, not as a fellow-servant with James Surman, but was injured through the negligent act of the driver of the truck, a vice-principal. The case of Thomas v. Magnolia Petroleum Co., 177 Ark. 963, 9 S. W. (2d) 1, cited and relied upon by appellant, has no application to the facts of this case.

Appellant complains about certain instructions given by the trial court, but we deem it unnecessary to here set out the instructions given or to discuss in detail the principles of law therein stated. It suffices to say that we have considered all the instructions given, and that they, and each of them, appear to conform to the previous holdings of this court.

Neither can we agree that the trial court erred in refusing appellant’s request for a mistrial, based upon the fact that appellee’s attorney asked the panel of the jury on voir dire examination the following question: “Would the fact that some insurance company might be interested in the outcome of the litigation affect your verdict?” The record discloses that the trial court promptly sustained appellant’s objection to the question, and directed the jury not to consider it. Even if the question were determined to be erroneous — which we do not here decide — the court’s ruling thereon removes any vestige of prejudice.

Lastly, it is insisted that the verdict of the jury awarding appellee, the mother and next friend of young Smith, $250, and the verdict of the jury awarding young Smith $1,000, aggregating $1,250, as compensation for the injury sustained, is greatly excessive. In reference to the contention but little need be said. Young Smith received a broken arm and collarbone, and was otherwise seriously injured; he was confined to a hospital for several days; a physician testified that he was probably permanently injured. This testimony warranted the jury in returning a verdict in his behalf for $1,000. Neither can we say that the jury was not warranted in awarding his mother and next friend $250 as compensatory damages. Young Smith, at the time of the injury, was approximately 17 years of age. His mother and next friend was entitled to his earnings until he reached majority. At the time of the injury he was employed, and certainly had expectations of greatly increasing his earning capacity. We therefore conclude that the judgment is not excessive.

No error appearing, the judgment is affirmed.


author: Johnson, C. J., McHaney, J.

text:
    Pacific Mutual Life Insurance Company v. Dupins.
    4-3248
    Opinion delivered December 18, 1933.

      Owens & Ehrman and John M. Lofton, Jr., for appellant.

      Emmet Vaughan, Sam T. & Tom Poe and McDonald Poe, for appellee.
   Johnson, C. J.,

(after stating the facts). It is first contended on behalf of appellant that the uncontradicted facts show that appellee was not totally and permanently disabled within the lifetime of the policy. We cannot agree with this contention. The testimony tended to show, and the jury was warranted in finding that, at the time the policy was issued to appellee, he was a strong able-bodied negro man, weighing about 185 pounds, enjoying good health and able to perform any kind of labor. After the execution and delivery of the policy, he contracted shortness in his breath, his heart action weakened, and a general decline in his health, to the extent that on July 24, 1931, he became totally exhausted. The physical tests applied to appellee on August 7, 1931, by his physician disclosed that appellee was suffering from active tuberculosis. From this very short summary of the evidence, it is perfectly apparent that the jury was warranted in finding that appellee contracted tuberculosis after the issuance of the policy of insurance, and prior to its date of expiration. Also, the jury was fully warranted in finding that appellee was totally and permanently disabled within the purview of the policy prior to July 15,1931.

Appellant insists, however, that the testimony does not show a total disability prior to July 15,1931, because appellee was engaged in light work in the railroad shops on and prior to that date. This is not a conclusive test of total and permanent disability, as has many times been held by this court.

We held in Industrial Mutual Ind. Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, that: “Total disability exists, although the insured is able to perform occasional acts, if he is unable to do any substantial portion of the work connected with his occupation.”

Again we held in Mutual Benefit H. & A. Association v. Bird, 185 Ark. 445, 47 S. W. (2d) 812, that, although the insured endeavored to do some work, this was not the exclusive test to be applied. The true test seems to be that total disability exists where the injuries are of such character and degree as to wholly disable the insured from doing all the substantial and material acts necessary to be done in the prosecution of his business, and when common care and prudence would require a man in his condition to desist from the kind of labor he had performed prior to his injury. When the rule is thus stated and analyzed, it will be seen that the mere fact that the insured performs certain labor, when common care and prudence require otherwise, does not of itself demonstrate a lack of total disability. This exact question was again before this court in Missouri State Life Ins. Co. v. Johnson, 186 Ark. 522, 54 S. W. (2d) 407, wherein the doctrine, as heretofore stated, was reannounced and approved.

The next insistance for reversal is that appellee did not furnish to appellant notice of his total disability within the time specified in the policy of insurance. The requirements of the policy appear in the statement of facts. By reference thereto, it will be seen that “failure to give notice within the time provided in this policy shall not invalidate any claim, if it shall be shown not to have been reasonably possible to give such notice, and that notice was given as soon as was reasonably possible.” The question as to whether or not appellee gave the notice as soon as was reasonably possible was submitted to the jury as a question of fact, and its findings in behalf of appellee should be sustained, if supported by substantial testimony. On this question appellee testified that he did not know that he had tuberculosis until immediately prior to the institution of this suit; that the first information he had came from his physician at that time.

On the question here under consideration, appellant insists that this case is governed by Business Men’s Assurance Co. v. Selvidge, 187 Ark. 1040, 63 S. W. (2d) 640. The Selvidge case is easily distinguishable from the instant case. There the insured lost one of his eyes on August 12, 1932, and gave no notice to the insurance company until the 12th of November, 1932. Selvidge well knew on August 12, 1932, that he had lost an eye. In the instant case, the insured did not know that he was suffering from tuberculosis until immediately prior to the filing of this suit. Thus it will be seen that there is a broad difference between the Selvidge case and the one here under consideration.

We think this case is controlled by the doctrine announced in Pacific Mutual Life Insurance Co. v. Smith, 166 Ark. 403, 266 S. W. 279. In the Smith case, the appellant there was the same appellant as here. Also, in that case, similar, if not identical, provisions of the policies appear. There, as here, it was contended that notice was necessary within a certain number of days, and a prerequisite to recovery. This court, in disposing of the contention there, said, ‘ ‘ That the requirement for immediate notice is sufficient, if notice be given as soon as is reasonably possible to give it.”

It is self-evident that appellee could not notify appellant of something he did not know. At no time within the specified period did appellee know that he was suffering from the disastrous disease afterwards made known to him by his physician. This is the reason for the exception contained in the policy, which requires notice as soon as is reasonably possible to give it. Employers’ Liability Assur. Corp. v. Boehm, 99 Ohio St. 343, 124 N. E. 223, 7 A. L. R. 182.

We conclude that the trial court was correct in submitting the reasonable possibility of giving notice in the instant case, and that no error was committed in so doing. It is next contended that the court erred in giving to the jury certain instructions relative to the execution of the application for the policy of insurance.

Appellant interposed the defense that appellee had made false statements in his application for insurance. This was denied by appellee. Therefore it became a question of fact for the jury to determine. After a careful consideration of all the instructions given on this issue, we conclude that the question was properly submitted and under correct instructions. In the main, the instructions here given followed the doctrine of this court announced in Missouri State Life Ins. Co. v. Witt, 152 Ark. 153, 237 S. W. 698; American Life & Accident Association v. Walton, 133 Ark. 348, 202 S. W. 20.

No reversal error appearing, the judgment is affirmed.

McHaney, J.

I dissent. It is a strang*e doctrine that a sane person may be totally and permanently disabled and not be aware of that fact. The policy had lapsed long-before any notice of disability was given, and there does not appear to be shown any good reason for failure to give the notice within the time provided in the policy. Mr. Justice Smith agrees with this dissent.


author: Smith, J.

text:
    Metropolitan Life Insurance Company v. Minton.
    4-3243
    Opinion delivered December 18, 1933.

      Daily & Woods, for appellant.

      Holland & Holland, for appellee.
   Smith, J.

Tom Minton, the plaintiff below, sued the Metropolitan Life Insurance Company, appellant herein, to recover $1,000, alleged to be due him on account of total and permanent disability, resulting from an injury which he received while employed by, and working for, the E. A. Young & Sons Coal Company at Jenny Lind, Arkansas. The insurance company issued a group insurance policy to the coal company, which received what is called the master policy, and each employee taking the insurance received a certificate or policy of insurance referring to the master policy. These certificates or policies issued to the employees all contained the following provision: “Under the terms of the group policy mentioned on page 1 of this certificate, any employee shall be considered totally and permanently disabled who furnishes due proof to the company that, while insured thereunder, and prior to his 60th birthday, he has become so disabled, as a result of bodily injury or disease, as to be prevented permanently from engaging in any occupation and performing any work for compensation or profit. ’ ’

These certificates contained a recital of the number and amount of the installments of benefits to be paid in case of disability, the amount of the installments being dependent on the amount of insurance taken by the respective employees. The certificate contained a table showing the number and amount of these payments of disability benefits.

There were two disputed questions of fact in the case. The first was whether the plaintiff had become totally and permanently disabled. The second was whether the plaintiff, being more than sixty years of age at the time of the issuance of the certificate, was entitled to the disability benefits. Upon this last-named issue of fact, the testimony shows, without dispute, that the plaintiff was then sixty-five years of age, that fact being stated in his application for the insurance. Plaintiff’s testimony shows,. however, that the agent of the insurance company, who was sent to the mine by the company to install the insurance, and to explain the plan of its operation, represented to the plaintiff that his age would not prevent him from receiving the disability benefits in case of injury. We do not review the testimony upon either of these issues, as it suffices to say that they are concluded by the verdict of the jury in plaintiff’s favor, the testimony being legally sufficient to support that finding. From the judgment rendered upon this verdict is this appeal.

The plan of the insurance was to the following effect: Each employee received the amount of life insurance for which he applied. The plaintiff applied for, and received, a life insurance certificate for a thousand dollars, payable to his wife at his death. This certificate contained the clause as to disability set out above. All employees paid the same rate per thousand for their insurance, which appears to have cost the employees eighty cents per month per thousand. The balance of the premium was paid by the coal company. Employees over sixty years of age paid the same rate for their life insurance as was paid by employees under that age, but the latter had the compensating advantage of the disability coverage. However, we must assume, in view of the verdict of the jury, that it was represented to plaintiff by the company’s agent that he, too, would have the advantage of the disability coverage, notwithstanding his age.

Upon the issue stated, the. court charged the jury as follows: “2. If you find from the evidence that Min-ton was more than 60 years of age at the time the application for the insurance was made, and that this fact was disclosed by him, and that the Metropolitan Life Insurance Company thereafter, with knowledge that he was more than 60 years of age, issued him the policy containing the provisions relating to total and permanent disability, then, in that event, you are instructed that the insurance company waived the 60-year age limitation, and Minton would be entitled to recover, provided you should also find that he is totally and permanently disabled as defined to you in other instructions. ’ ’

The instruction presents the exact issue decided by the Supreme Court of Tennessee, in the case of McLain v. American Glanzstoff Corporation, 166 Tenn. 1, 57 S. W. (2d) 554. The plaintiff in that case had a group insurance certificate containing identical provisions in regard to life and disability insurance as the one here sued on. In holding that the employee could not recover the disability benefits on account of his age, the Supreme Court of Tennessee said: “If the policy had insured against total disability alone, and the insurer knew that complainant was 61 years old at the time the contract was written, the insurer, under this rule, would be estopped to rely on a provision of the policy excepting from total disability benefits any insured over 60 years of age. Here, however, the contract of insurance covers the life of the insured for the benefit of his wife, is a valid contract in that respect, not void from its inception. The contract merely excludes from its total disability benefits employees over 60 years of age.”

It is true, the opinion in the Tennessee case recites that no fraud or misrepresentation was alleged; but it will be observed that the instruction above quoted did not require that finding before a recovery on the certificate here sued on could be had. The instruction does require a finding that the plaintiff had disclosed his true age to the insurer, but that knowledge would not alter the case. Nor would the terms of the certificate be altered, even though the jury had been required to find, and had found, that the insurer’s agent had represented that effect would not be given to the plain and unambiguous language of the certificate, excluding a person over sixty years of age from the disability benefits.

The general rule appears to be that, where the insurer has knowledge, at the time of issuing a policy of insurance, of existing facts which, if insisted on, would invalidate the contract of insurance from its inception and render it void, such knowledge constitutes a waiver of the condition in the contract inconsistent with these known facts, and the insurer is estopped thereafter from asserting that these facts constituted a breach of the contract. The theory of the law upon which such decisions are based is that, in the absence of a showing to the contrary, it will be presumed that the insurer intended to execute a valid contract in return for the premium received; and, when the policy contains a condition which, if enforced, renders it void from its inception, and the insurer knows that such will be its result, the law presumes that the insurer intended to waive the condition, thereby executing a binding contract, rather than to have deceived the insured into the belief that he had insurance, when, in fact, he had none. It is not to be presumed that the insurer will accept, or has accepted, the premium on an insurance contract knowing at the time it will not perform the contract when called upon to do so, because, of the existence of facts of which it had knowledge before issuing the policy. The law is so declared at § 346 of the Chapter on Insurance in 14 R. C. L., at page 1166. This- court has decided numerous cases to that effect, and we do not mean by this opinion to say anything impairing their authority. Here, however, the insurer does not claim the policy was void from its inception, or void at all. It concedes the validity of the certificate as a -life insurance contract, and merely contends that the doctrines of waiver or estoppel cannot be invoked to alter a valid and unambiguous contract.

Now, of course, the rule is well settled that all doubtful or ambiguous provisions of an insurance contract are to be resolved against the insurer, and in favor of the insured. ■ This is true, as many cases have explained, because the insurer lias carefully chosen the language with which it expresses or limits its liability, but, in other respects, these contracts are construed as other written contracts would be, and the rule against varying written contracts by parol evidence applies to insurance contracts, as well as to other contracts which have been reduced to writing.

At volume 8 of Cyclopedia of Insurance Law (Couch), § 2182, page 7052, it is said: “No rule of evidence. is better settled than that, in the absence of fraud or error, parol evidence is inadmissible to vary or control the plain and unambiguous terms of a complete written contract of insurance, or to aid in its interpretation, unless the contract, is incomplete in itself, or is ambiguous, either as to construction or application of the. terms, or the subject, since when a policy of insurance, properly executed, is delivered and accepted, it must be conclusively presumed to contain all the terms of the agreement for insurance by which the parties intended to be bound, and, therefore, to be the final form of their binding agreement.”

Among the cases cited in support of the text just quoted is our own case of Harrower v. Insurance Co. of N. Am., 144 Ark. 279, 222 S. W. 39.

A case involving the principle which is decisive of the instant case is that of Wheeler v. Fidelity & Casualty Co., of New York, 129 Ga. 237, 58 S. E. 709. That case was a suit upon an accident policy, which insured against the injury while insured was “riding as a passenger in, or on, a public conveyance propelled by steam, electricity, compressed air or cable, and provided for passenger service, including a passenger elevator.”' The conductor of a passing street car had an altercation with a passenger, at whom he shot,-and the bullet struck the insured “while she was going up the front steps of her home on the street along which the car was passing. ’ ’ It was alleged in the complaint — to which a demurrer was sustained— that the agent of the insurer represented, at the time the policy was sold, that the insured would be indemnified in the sum named in the policy in the event she should die as the result of an external, violent or accidental means, whether received on a car or otherwise. In sustaining the demurrer to this complaint, the Supreme Court of Georgia said: “While we recognize the rule that a policy of insurance must be construed most strongly against the insurer, still the words of the policy must be given the meaning which they ordinarily bear; and, where it is manifest that it was the intention of the insurer that liability should attach only in given circumstances, the law will uphold the contract according to its true intent and import. We do not think there is any ambiguity-whatever in the clause of the policy providing for indemnity resulting from death or disability of the beneficiary. Nor do we think there is any stipulation in the policy which can be properly held to vary or alter the plain and evident meaning of the terms in this clause. The writing being unambiguous, parol evidence as to what was said by the parties at the time it was executed will not be admitted to vary or alter the terms of the writing. The petition set forth no cause of action, and was properly dismissed on demurrer.” See also Kelsey v. Continental Casualty Co., 108 N. W. 221.

We conclude therefore that, while parol evidence may be received to shoAv, by Avay of waiver or estoppel, that a contract for insurance, or for any other purpose, Avas not void from its inception, such testimony is not admissible to vary the terms of an unambiguous written contract. As was said by the Supreme Court of Tennessee in the McLain case, supra, if the policy had insured against disability only, parol evidence would have been admissible to estop the insurer from asserting that the policy was void when Avritten. But parol evidence is not admissible to show that plaintiff had, not life insurance merely, as he had without dispute, but that he had disability insurance also, when the unambiguous language of the, certificate or policy plainly provides to the contrary.

The judgment must therefore be reversed, and, as the cause appears to have been fully deAuloped, it will be dismissed.

Humphreys, J., dissents.


text:
    Sharp v. Norwood.
    4-3251
    Opinion delivered December 18, 1933.

      Duty & Duty, for appellant.

      Rice & Rice, for appellee.
   Smith, J.

We. copy from appellant’s brief the following statement of facts, out of which this litigation arose: “The First National Bank of Rogers, Arkansas, became insolvent, and was taken over by the Comptroller of the Currency of the. United States for the purpose of liquidation, about the 1st of January, 1931.

“The Bank of Lowell, Arkansas, was a State banking corporation, and became insolvent and was taken over by the State Banking Department for the purpose of liquidation about the 25th of January, 1931.

“On July 31, 1930, the appellees, T. W. Norwood and A. H. Lightner, borrowed $600 from the Bank of Lowell, and executed to the bank their promissory note in that sum, due and payable six months after date. Some time after the execution of the note, and some time before the First National Bank of Rogers failed, the Bank of Lowell borrowed $7,500 from the First National Bank of Rogers, and placed the appellee’s note, together with other notes, with the First National Bank as collateral for the loan, and, at the time of the institution of this suit and the trial thereof, and, at the present time, the indebtedness of the Bank of Lowell to the First National Bank of Rogers has not been paid, there being about $1,000 yet due and unpaid, and the appellees’ note is still held by the receiver of the First National Bank, E. G-. Sharp, as collateral to that loan.

“At the time, the First National Bank of Rogers failed, one of the appellees, A. H. Lightner, was doing business with that bank, and had on deposit $683.61, which he seeks to offset against the collateral note due the Bank of Lowell, and held by the. First National Bank of Rogei's. On January 29, 1932, Walter E. Taylor, as Bank Commissioner of the State of Arkansas, filed suit against the appellees for the full amount of the face of the note and interest. The appellees answered, and set up substantially the above state of facts, claiming that the defendant, Lightner, had a deposit in the First National Bank, and that he was entitled to offset, but did not allege at any time or place, that ■ the other defendant, T. W. Norwood, was insolvent, neither did the defendant, Norwood, make such allegation in his answer, but Norwood adopted the answer of Lightner. •

“The case came on for final hearing on March 23, 1933, after, on proper motion, the appellant, E. Gr. Sharp, as receiver of the First National Bank of Rogers, had been made a party to the proceedings, and, after hearing the evidence, the court found that the. note in question was made to the Bank of Lowell, and was thereafter transferred and assigned by the Bank of Lowell to the First National Bank as collateral to secure the loan, and that at all times subsequent thereto, and, at the time of the rendition of the judgment, that the First National Bank of Rogers was the holder of said note as collateral security.

“The court further found that,.at the time the First National Bank closed, the defendant, Lightner, had on deposit, in said bank the sum of $583.67, and that he was entitled to offset that amount against the amount due on the note, leaving a balance due on the note of $56.39, and for which the court rendered judgment in favor of E. Gr. Sharp, as receiver of the First National Bank, against Lightner and Norwood. The appellant Sharp duly filed his motion for new trial, which was by the court overruled, and an appeal was taken to this court and a bill of exceptions filed within the time allowed by the court, and the question now before .the court is whether or not, under the facts as set forth above and supported by the evidence, the appellee, Lightner, is entitled to offset his deposit in the First National Bank of Rogers, against his note due the Bank of Lowell, by reason of the fact that the First National Bank was the holder of said note for collateral, and that the other defendant, T. W. Nor-wood, is not shown to be insolvent. ’ ’

This is an appeal from a judgment under which no one appears to have been prejudiced. The makers of the note have obtained the relief which they prayed, and they will no doubt adjust their accounts with each other; at any rate, we are not asked' to make the adjustment. The Bank Commissioner, as liquidator of the Lowell Bank, makes no complaint of the judgment. He has obtained full credit on the note of the Bank of Lowell to the First National Bank. No one complains of the judgment except the receiver of the First National Bank, and his complaint appears to be without merit. The First National Bank’s liability to Lightner as a depositor has been extinguished, and, in addition, the receiver has judgment against two apparently solvent makers for the difference between Lightner’s deposit and the Lightner and Norwood date. If the First National Bank had been the absolute owner of the Lightner and Norwood note, it could not have asked for more than it has received under the judgment of which its receiver complains.

This just judgment will not be reversed for lack of mutuality of the demands set off against each other. - •

It was held, in the early case of Trammell v. Harrell, 4 Ark. 602, that a debt or demand, to be set off, must be due from the sole plaintiff, or all the plaintiffs, to. the sole defendant, or all the defendants. But this case was overruled by the- case of Leach v. Lambeth, 14 Ark. 668, where the court held that a debt due from the sole plaintiff to one of several defendants may be pleaded, under the statute, as a set off by the defendant to whom such debt is due.

In the case of Rush v. Citizens’ National Bank, 114 Ark. 170, 169 S. W. 777, the facts were that Rush and Bryan executed a joint note- to a bank in which Rush had an individual deposit. It was held, the note maturing and remaining unpaid, that the hank had the right to apply Bush’s individual deposit to the payment of the note upon which he was liable as a joint maker.

In the case of Taylor v. Cox, 183 Ark. 1117, 40 S. W. (2d) 444, the facts were that Mrs. Cox was liable as joint maker on a note to a bank in which she carried an individual deposit. Upon the bank becoming insolvent, it was held that she had the right to have -her individual deposit credited upon the note on which she was liable as a joint maker, and upon paying the difference between her deposit and the joint note she was allowed to withdraw from the hands of the Bank Commissioner, as liquidating agent for the bank, the collateral which had been pledged to the bank to secure the note. See also Leonard v. Taylor, 183 Ark. 933, 39 S. W. (2d) 704.

It is insisted, however, that the right of set off should not have been accorded, because the First National Bank held the note of Lightner and Norwood as pledge by way of collateral, and not as owner. It is true a bank holding a note as collateral to secure a loan which it has made does not, because of default in the payment of the debt due it, become the owner of the collateral which it held, but must acquire the title thereto in the manner authorized by the contract of pledge; Union & Mercantile Trust Co. v. Harnwell, 158 Ark. 295, 250 S. W. 321. But, even so, the collateral note would not be worth, or could not be sold for more than its face with interest, (and the bank would not be entitled to the excess if it did) and it has had credit for that amount under the judgment from which its receiver has appealed.

Here the judgment has arrived at a true balance where mutual demands existed, and it must therefore be affirmed. It is so ordered.


author: Humphreys, J.

text:
    American National Insurance Company v. Chastain.
    4-3241
    Opinion delivered December 18, 1933.

      Coleman & Riddick, for appellant.

      John L. Sullivan, for appellee.
   Humphreys, J.

The issues involved on this appeal are: first, whether the group policy issued by appellant to the city of Little Rock protecting her firemen from total disability expired as total disability protection to appellee when he was placed on a pension by the city, or whether it continued in full force and effect thereafter ; second, whether the evidence was sufficient to warrant the jury in finding appellee was totally disabled within the meaning of the policy; and, third, whether sufficient notice of total disability was given to appellant by appellee.

The first two issues were submitted to the jury under instructions the correctness of which is not questioned by appellant, and the last under an instruction which appellant claims was erroneous.

The policy in the instant case insured the lives of the firemen and policemen of the city of Little Rock for five years beginning December 1,1927, premiums payable annually, the first annual premium being $4,249 with a provision therein providing for the payment of $2,000 to appellee if said appellee:' “(1) has suffered subsequent to the date of the issuance of the policy for a period of at least 6 months total disability and that due proof is furnished the Company; (2) and that the said disablement began before tlie person injured had attained the age of 60 years; (3) and that, if proof of total disablement is furnished, the said total disablement must be shown to be such as to justify the presumption that it would continue throughout the entire subsequent lifetime of the said person and during that time wholly prevent the said person from pursuing any occupation for wages, compensation, or profit.”

'It also contained the following provision: “It is agreed that employees otherwise eligible but who are not working for full time and for full pay on the effective date of the policy applied for are to be excluded from insurance coverage until the date on which they return to service for full time and for full pay.”

The application contained the names of at least four firemen who had ibeen retired on a pension, and who were not working full time and on full pay, but they were included in the group policies as beneficiaries.

(1) It appears from the record herein that, on March 1, 1930, appellee was retired on a pension by the city. Appellant argues that, under the terms of the policy set out above, its liability to appellee on account of total disability terminated when he ceased to work full time on full pay, or, to be more exact, on the date he was retired on a pension. It is disclosed by the record herein that appellant, in making out its claim for premiums due December 1, 1931, on the group policy, included appellee’s name with the notation that he hád been retired on pension, and it also appears that in remitting the premium due on that date by the city, appellee’s name was included among those covered by the policy, although on a pension roll. This testimony was sufficient to sustain the finding of the jury that appellant had waived the provisions of the policy protecting only those who were working full time and for full wages.

(2) We cannot agree with learned counsel for appellant in their view that the evidence is insufficient to sustain the verdict of the jury to the effect that appellee was and is totally disabled within the meaning of that term- as used in the policy. The construction placed upon the term “total disability” as used in the policy means such disability as renders the policyholder “unable to perform all the substantial and material acts of his business or the execution of them in the usual or customary way.” Ætna Life Insurance Company v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Mo. State Life Insurance Co. v. Barron, 186 Ark. 46, 52 S. W. (2d) 733.

According to the testimony introduced by appellee, he has been unable to do any work since August 3, 1929, on account of tuberculosis. The jury found this to be the fact from conflicting testimony under correct instructions submitting the issue, and their finding is conclusive on appellant. It was a jury question and not one for the court. Missouri State Life Ins. Co. v. Johnson, 186 Ark. 519, 54 S. W. (2d) 407; New York Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S. W. (2d) 520.

(3) The group policy contained conditions to the effect that due proof must be furnished appellant of total disability on the part of appellee. Appellee filed his proof of total disability on December 26, 1932, on account of having tuberculosis, which he contracted in .1929, during the life of the policy. As appears from the condition in the policy above referred to, no time was specified in which proof was required to be made. Based upon this fact, appellant contends that the proof should have been made within a reasonable time, and requested an instruction to that effect, which the court refused to give, over its objection and exception. The court modified the instruction so as to follow the language of the policy providing that due proof should be made , of the disability by appellee before he. could recover. Appellant objected and excepted to the court giving the instruction as modified. The court was within the law in modifying the instruction and in refusing to-give it in the form requested- by appellant. It was said by this court in the case of Sovereign Woodmen of the World v. Meek, 185 Ark. 419, 47 S. W. (2d) 567, that “under a benefit certificate providing for a recovery if insured should suffer bodily injury and furnish satisfactory proof of total disability, held the right to recover depended upon insured’s total disability during the life of the certificate, and not upon the receipt of the proof of total disability, no time being fixed in the policy for making such proof.”

Appellant has called onr attention to certain testimony which it alleges was inadmissible, but we cannot agree with it. We think the evidence referred to was material to the issues involved.

No error appearing, the judgment is affirmed.


text:
    Turner v. Richardson.
    4-3263
    Opinion delivered December 18, 1933.

      W. A. Jackson and Beloate & Beloate, for appellant.

      W. P. Smith, for appellee.
   Humphreys, J.

Appellee brought suit in replevin against appellant before a justice of the peace in Boas Township in Lawrence County to recover possession of a red Irish setter bitch. The case found its way by appeal to the eastern district of the circuit court of said county, where it was tried to a jury under proper instructions, resulting in a verdict and judgment against appellant, from which is this appeal.

According to the evidence introduced by appellant, the bitch in controversy was given to him when she was about nine months old by Everett Webb, who had bought her early in December, 1931, from Tom Nokes, whose son had gotten her from Will Berry, who lived near the Less farm.

According to the evidence introduced by appellee, the bitch in controversy was bought by him when she was about nine months old from Jim, Perkins for $10 the latter part of 1930, and that, after she had pups and weaned them, she disappeared in the fall of 1931, and that she was not seen by him until November, 1932, when he found her in the possession of appellant.

After the trial, appellant filed a motion for a new trial on account of newly-discovered evidence, which was overruled by the trial court, over his objection and exception. Appellant insists that the court committed reversible error in overruling his motion.

The newly-discovered evidence was contained in the affidavits of Cecil Nokes, Will Berry and T. R. Jones.

Affiant, Cecil Nokes, said he was the son of Tom Nokes, who got the bitch from Will Berry in May or June, 1931, and sold her to Everett Webb for $5, at which time she was six or seven months old.

Affiant Will Berry, said the bitch in question came to his home in May or June, 1931, when she was about seven months old, and that he let Tom Nokes take her home, and that Nokes kept her until in the fall, when he said he sold her to Everett Webb for $5.

Affiant J. R. Jones, who was related to Will Berry and Tom Nokes, said he visited them in June, and again in the fall of 1931, and that on both visits he remembers to have seen an Irish female red setter at Tom Nokes' that was about six months old.

Had appellant gone to Tom Nokes, from whom Webb got the bitch, and made inquiry before the trial, he most probably could have obtained all the information the three affiants disclosed in their respective affidavits. Just to say he did not know what the affiants knew until they' voluntarily told him after the trial does not show diligence on his part in procuring the evidence. The law is that one who relies on newly-discovered evidence to obtain a new trial must show that he used due diligence in discovering the evidence before the trial. Medlock v. Jones, 152 Ark. 57, 237 S. W. 438.

Appellant failed to show due diligence in procuring the evidence before the trial; so the court, in the exercise of a sound discretion, was justified in overruling his motion.

No error appearing, the judgment is affirmed.