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McCULLOCH, C. J. This is an action on a life insurance policy issued by the defendant company to Langston S. Jones, a negro citizen of Faulkner county, Ark., payable to his own order, and subsequently assigned to the plaintiff, S. G. Smith, as creditor. The amount of the policy was $1,000, and plaintiff's debt against Jones exceeded that amount, and he sues, therefore, to recover the full amount of the policy. The written application for the policy was made to the company on September 25, 1916, and the policy was issued on October 14, 1916, and delivered immediately thereafter, and on October 26th, 1916, by indorsement on the back of the policy, duly approved by the company, the policy was assigned to plaintiff, Smith. Jones died on December 21, 1916, and after proof of loss being made the company refused to pay on the ground that there was a breach of conditions in the policy concerning the truthfulness of the answers in the application, and on other grounds to be referred to in the opinion. The trial of the case in the court below resulted in a verdict in favor of the plaintiff for recovery of the full amount of the policy, with attorney's fees and statutory damages, and the defendant has appealed. The assignments of error are very numerous, and it is believed that a general statement of the grounds on which liability of the company rests will dispose of many of the defenses without discussing the assignments of error in detail.

and the application referred to contains the following paragraph:

person who shall have or claim any interest in "I declare on behalf of myself and of any fully read each and all of the above answers, any insurance made hereunder that I have carethat they are each written as made by me, that each of them is full, complete, and true, and that to the best of my knowledge and belief I am a proper subject for life insurance."

The distinction between warranties and mere representations constituting the inducement to the issuance of an insurance policy was clearly pointed out by Judge Battle in the opinion in Assurance Society v. Reutlinger, 58 Ark. 528, 25 S. W. 835. It was there said:

"Statements or agreements of the insured which are inserted or referred to in a policy are ranties or representations depends upon the not always warranties. Whether they be warlanguage in which they are expressed, the apparent purpose of the insertion or reference, and sometimes upon the relation they bear to other parts of the policy or application. All reasonable doubts as to whether they be warranties or not should be resolved in favor of the assured."

Measured by the rule thus announced, we are of the opinion that the statements of facts in the application should be treated as representations, and not as warranties, and that the untruthfulness of the statements do not operate as a forfeiture of the policy unless they were willfully made by the applicant. This results from a consideration of the whole of the language of the policy. The language of the paragraph quoted above shows that it was not intended as a warranty, but that the statements were only made on belief, and were not warranted to be true.

Testimony was adduced by appellant tending to show that at the time the application was made by Jones he was afflicted with serious bladder trouble, which finally caused his death, but there was other testimony in the case in conflict, which presented an issue as to the truthfulness or falsity of the statements in the application concerning the appli cant's state of health. That question was submitted to the jury, and there was evidence sufficient to support the finding in plaintiff's favor. The death of the applicant occurred about two months after the delivery of the policy, but there was evidence of a substantial nature tending to show that the death resulted from malarial trouble, which arose after the issuance of the policy. That testimony came from the physician who attended Jones in his last illness, and the witness testified that malaria was the cause of Jones' death, and that he found no evidence of any other ailment. The trial court treated the statements in the application as representations, and not warranties, and properly sub

[1] The initial question in the case is whether or not the statements contained in the application were warranties or mere rep-mitted to the jury for determination the isresentations. The policy itself recites that it was issued "in consideration of the application for this policy, a copy of which is hereto attached and made a part of this contract,"

sues whether or not the answers were untrue, and, if so, whether they were known to be untrue by the applicant himself. It is unnecessary to set out the instructions in the case,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

for they are very numerous.
requested the court to give 26 separate in-
structions, 8 of which the court gave, and the
others were refused. We will not undertake
to discuss these instructions in detail.

[2] Another question in the case was whether or not the policy was delivered to Jones while in good health, so as to meet the requirement of the stipulation in the application, which reads as follows:

The defendant was no rate of premiums on policies of that kind to persons over the above specified age limit, and the ruling of the court is assigned as error, but we think there was no prejudice in that ruling, for there was other testimony showing that there were no provisions for or rates on policies on persons over the age of 55 years, and we must treat that as undisputed. We are therefore confronted with the question whether under the contract there can be a recovery on the policy issued to Jones under a misstatement of his age where his age exceeded the above specified limit. The contention of the defendant is that if there was a misstatement of age, and the age of the applicant exceeded the maximum limit on such policies, there can be no recovery for the reason that the premium paid by Jones would not have purchased insurance of that kind in any sum, according to his correct age. On the other hand, it is contended by counsel for the plaintiff that a recovery of the full amount of the policy was properly allowed, notwithstanding the misstatement of age, for the reason that the company did not show that a policy for a smaller sum was purchasable according to the limited payment plan.

"That the insurance hereby applied for shall not take effect unless the first premium is paid and the policy is delivered to and received by me during my lifetime and good health, and that unless otherwise agreed in writing the policy shall then relate back to and take effect as of the date of this application."

The solution of this question turns also upon the good faith and apparent state of health of the insured at the time of the delivery and acceptance of the policy. The stipulation does not constitute a warranty of good health at the time of the delivery of the policy, but only amounts to a stipulation for a delivery while the insured is in apparent good health, and free from such diseases as would seriously affect the risk. That issue was also fully and completely submitted to the jury upon appropriate instructions.

[3, 4] One of the most serious questions in the case concerns the alleged misstatement by the insured concerning his age. The policy contains a stipulation on that subject in the following language:

"4. Age.-If the age of the insured has been misstated the amount payable hereunder shall be such as the premium paid would have purchased at the correct age, provided the age at the time insured is not over 60 years."

The age of the insured was stated in the application to be 53 years, but there is testimony tending to show that he was 59 years of age at that time. There is a conflict in the testimony on the subject, and the evidence warrants a finding either way as to the age of the insured; that is to say, the jury might have found that he was 53 years of age as stated in the application, or that he was 59 years of age. The court gave an instruction

Our conclusion is that the contention of the plaintiff is correct, and that he was entitled to recover the full amount of the policy. We are, of course, dealing merely with an innocent misstatement of age, for it was settled by the verdict of the jury upon sufficient evidence and proper instructions that the misstatement was not willfully made by the insured. The language of the policy is that selected by the defendant company, and wherever found to be ambiguous to any extent the doubt will be resolved against the company and in favor of the policy holder. The insurer sought to treat this subject of misstatement of age separately in a complete clause defining liability under those circumstances. The policy was written for a certain vide for a lessening of the amount, provided sum, and the effect of this clause was to prothe age of the insured was not over 60 years, and it therefore devolved upon the company, in order to obtain any advantage under this clause, to show that there was a purchasable policy according to the plan adopted at the In other words, true age of the insured. according to the terms of the policy there was liability for the amount named in the face of the policy unless it could be lessened so as to

at the request of the defendant telling the jury that if there was a misstatement of his age by the insured such misstatement, if willfully made, would avoid the policy and there could be no recovery. There was evidence sufficient to warrant a finding that even if there was a misstatement of the age it was not willfully made, and we must treat that be reduced to such an amount of insurance question as settled by the verdict of the jury. There remains, however, the question of the as the premium paid "would have purchased effect, under the terms of the policy, of an in- at the correct age," and unless that premium nocent misstatement by the insured concern- would have purchased a policy for a less sum, ing his age. The policy in the case is a limit- the liability for the full amount continued. ed payment one, that is to say, it was issued Such, we think, is the fair and just interpreon the plan called 20-payment life, and the tation of the language used, for there is no defendant introduced testimony showing that indication of an intention on the part of the the age limit under that form of policy was company to provide for the payment of a pre55 years; no policy being issued by the com- mium and give nothing at all in return merepany to persons over that age. The court ly because there was an innocent misstaterefused to permit the defendant to introduce ment of the age of the insured. Any other

would nullify this provision concerning innocent misstatements of age where the true age of the insured exceeded the limit beyond which the company declined to write policies, and instead of giving the insured a policy for such a sum as the premium would have purchased at the correct age, as clearly contemplated by the policy, it would result in giving him nothing at all. Our conclusion therefore is that the trial court properly interpreted the contract, and that the judgment for the full amount of the policy was correct.

is insured is a human life or a building. There is this difference, that the life being active can by its conduct affect the contract even so far as to annul it, while the building being inanimate and passive has of itself no such power. But aside from this the rights and liabilities of the parties to the contract are the same. The party insured is not a party to the record, and therefore his declarations are not admissible on that ground. She is not party in interest, as the whole benefit and interest inures to the assured. She is not his agent, and authorized to speak for him. Nor does she come within any other rule by which her declarations can be received against him."

The other assignments of error are not deemed of sufficient importance to discuss. The record is found to be free from error, and the judgment is therefore affirmed.

COATS et al. v. MILNER.

(134 Ark. 311) (No. 365.)

(Supreme Court of Arkansas. May 13, 1918.) 1. PLEADING 192(2), 367(5) — DEMURRER —

UNCERTAINTY.

Where allegations in cross-complaint as to recoverable damages are indefinite and uncertain, they should be reached by a motion to make more definite and certain rather than by demurrer. 2. PARTNERSHIP 205-PARTIES-PROCESS.

Where a partner sues on a personal transaction, a counterclaim of a partnership obligation is not rendered bad by failure to serve the cross-process on the other partners named therein.

3. PARTNERSHIP 165, 200-LIABILITY-AC

TIONS AGAINST.

Liability of partners is joint and several, firm can sue one or more of the partners at his and one having a cause of action against a election.

4. JUDGMENT 631-PARTIES 27-ACTIONS FOR DAMAGES-WHO MAY BE SUED.

joint tort-feasors, although only one satisfaction A person damaged may sue one or more of can be had.

[5, 6] Error of the court is assigned in refusing to permit defendant to prove by two witnesses certain declarations of Jones concerning the state of his health. The record fails to show that there were any exceptions saved to the court's ruling with respect to the testimony of one of the witnesses, and also fails to show what the answers of the witness would have been to the excluded questions. Therefore there is nothing before us for review. The other witness was the wife of Jones, and defendant sought to prove statements made by Jones to his wife concerning the state of his health after the issuance of the policy. We entertain no doubt of the correctness of the ruling of the court in excluding that testimony. Pretermitting a decision on the ground urged by counsel for plaintiff that the evidence ought to have been excluded because of the relationship between the witness and the insured, we held that it was not competent to prove by any witness admissions of the insured concerning the state of his health, as against the holder of the policy. The policy constituted a contract between the company and the beneficiary either under assignment or under the original designation in the policy itself, and it was not competent to prove, as against the interest of the beneficiary, the declarations of the person whose life was insured under the policy. Washington Life Ins. Co. v. Haney, 10 Kan. 525; Rawls v. American Life Ins. Co., 36 Barb. (N. Y.) 357; Mutual Life Ins. Co. v. Applegate, 7 Ohio St. 292; Harley, Admr. v. Heist, 86 Ind. 196, 44 Am. Rep. 285, A few cases may be found where admissions made by the insured during the pendency of the application were allowed to be proved on the ground that they constituted a part of the res gestæ, but the authorities are unanimous, so far as they go, in holding that after the issuance of the policy, and In action by a partner on personal claim, especially after the assignment to another defendant can set up as a counterclaim a cause person, evidence of the declarations of the of action against the partnership, under Kirby's insured is not competent. Mr. Justice Brewer. Dig. §§ 6099, 6101, as amended by Acts 1917, speaking for the Supreme Court of Kansas on this subject, in the case above cited, said: "Can the declarations of a party whose life is insured for the benefit of another, made long after the application and the contract, be received in evidence against the assured to impeach the truthfulness of the application? The contract is between the assured and the insurer. The parties are the same whether that which

5. SET-OFF AND COUNTERCLAIM 22(1) STATUTES.

-

Under Kirby's Dig. §§ 6099, 6101, as amendproper counterclaims and set-offs, any suit ed by Acts 1917, p. 1441, providing what are whatever which a defendant can maintain as an independent cause of action is a proper counterclaim, and hence persons who go to law may settle, in a single suit, all matters in dispute between them, whatever they grow out of and whether or not they arise in tort or on contract.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Counterclaim.]

6. SET-OFF AND COUNTERCLAIM
COUNTERCLAIMS.

p. 1441.

44(2)

Appeal from Circuit Court, Lawrence County; Dene H. Coleman, Judge.

Suit by J. M. Milner against S. A. Coats, who filed a cross-complaint against plaintiff, and another. Judgment for plaintiff, and defendants appeal. fendants appeal. Reversed and remanded, with directions.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

W. P. Smith, of Walnut Ridge, for appellants. Ponder, Gibson & Ponder, of Walnut Ridge, for appellee.

SMITH, J. Milner sued Coats for $400 on a promissory note. Coats filed an answer and cross-complaint, in which the execution of the note was admitted, but which alleged the fact to be that Milner and one Creager were liable as partners to Coats by way of damages in the sum of $800 for the breach of a contract to sell and deliver a sawmill. Milner demurred to the cross-complaint on the grounds that the damages claimed could not be recovered in this action and for the further reason that the complaint did not sufficiently allege what the recoverable damages were. The demurrer was sustained, and this appeal questions the correctness of that action.

This section is amended to read as follows: "The counterclaim mentioned in this chapter may be any cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them."

It is apparent that the effect of the amend

atory act, so far as it amends that section, is
to omit the portion reading as follows:
"Arising out of the contract or transactions
set forth in the complaint, as the foundation of
the plaintiff's claim or connected with the sub-
ject of the action."

Section 6101 of Kirby's Digest reads as follows:

"A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract or ascertained by the decision of a court."

This section is amended by the act of 1917 to read as follows:

"A set-off may be pleaded in any action for the recovery of money, and may be a cause of action arising either upon contract or tort."

While under section 6099 of Kirby's Digest the counterclaim could be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, it was essential that this cause of action constituting the counterclaim should arise out of the contract or transaction set forth in the complaint and forming the basis of the plaintiff's suit; but the amendatory act strikes out the requirement that the counterclaim shall arise out of the contract or trai saction set forth in the complaint. Under section 6101 of Kirby's Digest, a set-off could only be pleaded in an action founded on contract, and could only be some cause of action which arose out of a contract or some demand which had been ascerIt had tained by the decision of a court.

[1-3] It does appear that the allegations in regard to the recoverable damages in the cross-complaint are indefinite and uncertain, but that defect in the pleading should have been reached by a motion to make more definite and certain rather than by demurrer. That, however, does not appear to be the question which was regarded by the court below as of controlling importance. The controlling question is whether such damages are the subject of a counterclaim against Milner's suit on the note. Counsel for Milner call attention to the fact that, although Creager was made a defendant in the cross-complaint, no service of process was had upon him, and that Creager is not therefore before the court. This failure to serve Creager with process is not fatal to the prosecution of the counterclaim if the right to its prosecution otherwise exists. The cross-complaint alleg-been expressly held that a claim for unliquied that Milner and Creager were partners, dated damages could not form the basis of a and as such their liability is both joint and counterclaim, unless the damages flowed from several. Early opinions of this court decided the cause of action sued on. But under the that it was competent for a person having a amendatory statute it is now provided that a cause of action against a firm on a partner- set-off may arise either upon contract or upon ship contract to sue one or more of the part- tort. So that, since the passage of the act of ners at his election. Hicks v. Maness, 19 Ark. 1917, set out above, the law is that a cause of 701; Hamilton v. Buxton, 6 Ark. 24; Burgen action arising either upon contract or tort may form the subject-matter of a counterclaim in any action for the recovery of money, and this may be done in any case where liability could be asserted in an original acwhich the defendant could maintain as an intion brought against the plaintiff. Any suit dependent cause of action is by this amendatory act made a proper subject-matter for a counterclaim. In other words, the manifest purpose of the Legislature was to permit persons who have gone to law to settle, in a single suit, all matters in dispute between them, whether the respective causes of action grow out of the same, or different, contracts, or whether they arise upon contract or arise out of some tort.

v. Dwinal, 11 Ark. 314.

[4] And it is equally as well settled that the person damaged may sue one or more of joint tort-feasors, although, of course, only one satisfaction can be had either of the

debt or the damages.

[5] The decision of the question presented turns upon the construction of Act No. 267 of the Acts of 1917, p. 1441. This act is entitled "An act to amend sections 6099 and 6101 of Kirby's Digest." Section 6099 of Kirby's Digest reads as follows:

"The counterclaim mentioned in this chapter must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transactions set forth in the complaint, as the foundation of the plaintiff's' claim or connected with the subject of the ac

[6] It follows, therefore, that the demurrer should not have been sustained to the cross

been permitted to litigate, as a single suit, turn a verdict of guilty. The appellant, their respective causes of action.

The judgment of the court below will therefore be reversed, and the cause remanded, with directions to overrule the demurrer.

(134 Ark. 303)

SNEAD v. STATE. (No. 360.) (Supreme Court of Arkansas. May 13, 1918.) 1. CRIMINAL LAW 753(3)-DIRECTION OF

VERDICT OF GUILTY.

It is error to direct a verdict of guilty in a criminal case.

2. INTOXICATING LIQUORS 238(2) — QUESTION FOR JURY.

Whether one accused of selling whisky was acting solely as agent of the purchaser, or had a pecuniary interest in procuring the purchase, was for the jury.

Appeal from District Court, Garland County; Scott Wood, Judge.

Henry Snead was convicted of unlawful and felonious sale of liquor, and appeals.

Reversed and remanded for new trial.

C. T. Cotham, Arthur Cobb, and R. M. Ryan, all of Hot Springs, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State..

WOOD, J. Appellant was charged with the unlawful and felonious sale of liquor, in Garland county, Ark., in September, 1917. Ike Warren testified, for the state, in part as follows:

"As near as I can recollect, Snead came over there to Whitman's parlor, and I asked him could he get me some 'Shorty,' and he told me that he thought that he could get some; then I gave him a dollar and a quarter, and he was gone about 25 or 30 minutes, perhaps a little longer, before he came back. He brought__a half pint bottle of whisky back with him. He told me he got it from a boy named Smoky up on Cedar street. He told me, before he started after the whisky, that he thought that he could get it from Smoky. I did not know that Smoky had any whisky to sell until Snead told me so." Appellant testified in part as follows:

"I know Ike Warren. I have never sold him any whisky, but I have got whisky for him twice. That was some time the latter part of last year. I saw a fellow by the name of Smoky that was hanging around here, and he told me that he had some whisky. He came in here two or three times a week. He told me that he

was bringing whisky in, and told me that if I saw anybody that wanted any to tell him. I told him that I didn't like to do that kind of business. I was over there at Whitman's parlors, and Ike asked me if I knew where he could get some whisky; wanted me to go get some for him. I told him I didn't know, but I would see if I could get some from Smoky; so I looked him up. I told Ike that I thought that I could get it from Smoky before I started after it. I got the whisky from Smoky and took it back to Ike. He gave me the money both times before I started after the whisky. * I had no pecuniary interest in the sale of the whisky to Ike Warren whatever."

* *

among other things, requested the court to grant the following prayer:

"You are instructed that if the defendant, at the request of the prosecuting witness, Ike Warren, and solely as the agent of the prosecuting witness, and without having any interest in the sale of the liquor, other than to procure the liquor for the prosecuting witness, went to the party from whom the whisky was purchased, and with the money furnished him by the said Ike Warren, and without making any profit, or having any pecuniary interest or other interest in the sale, purchased whisky, which he carried to Ike Warren, as a matter solely to accommodate Ike Warren, and not for the purpose of procuring a purchaser for the whisky, or to assist in any way the seller in making the sale, then you should acquit the defendant."

The court refused this prayer. Appellant duly saved his exceptions to the ruling of the court in directing the jury to return a verdict finding him guilty, and also in refusing the above and other prayers for instructions asked by him. These exceptions were made ground of the motion for new trial, which being overruled, the appellant duly prosecutes this appeal.

[1] The Attorney General confesses error, and the confession is well taken. This court in Roberts v. State, 84 Ark. 564, 106 S. W. 952, held that:

"It was error to direct the jury to return a verdict of guilty in a prosecution for a misdemeanor which is punishable by imprisonment."

Such being the law in cases of misdemeanor, where the imprisonment is in the county jail, a fortiori it is error to direct a verdict of guilty, where the prosecution is for a felony and the imprisonment is in the state penitentiary. See Parker v. State, 197 S. W. 283; Wylie v. State, 199 S. W. 905.

In Roberts v. State, supra, we quoted from Mr. Bishop as follows:

"The judge is incompetent to convict one of crime, even though he acknowledges it, except on a plea of guilty. The evidence is exclusively for the jury. However conclusive of guilt it may be, he can only tell them that, if they believe such and such to be the facts, the law demands a verdict of guilty; he cannot otherwise direct such verdict." Bishop's Criminal Procedure, vol. 2, p. 813.

In the recent case of Cleveland Ellis v. State, 202 S. W. 702, we said:

"In the present case the jury might have legally inferred that Ellis was acting in some capacity other than that of assisting a friend or solely as agent of the purchaser. His guilt or innocence depended upon whether or not he in good faith acted only for the buyer in the purchase of the alcohol, or merely pretended to act for the buyer as a subterfuge to evade the law. Whether Ellis acted solely as agent of Beard in buying whisky, or whether this claim of agency was merely a shift or device to conceal an unlawful sale of alcohol by himself, were questions of fact to be determined by the jury."

[2] A majority of the court are of the opinion that the doctrine announced in the above The court instructed the jury in effect that case is applicable to the facts of this record, under the undisputed evidence the defendant and that the court erred in instructing the was a necessary factor in bringing about jury that under the undisputed evidence in the sale, and that therefore they should re- the case the defendant was a necessary factor

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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