Page images
PDF
EPUB

done for him, although without his express authority or request, the law supplies the formal words of contract, and presumes him to have promised an adequate compensation." Ford v. Ward, 26 Ark. 360. Where, considering the relations of the parties and all the circumstances of the case, the services were of such nature as to lead to a reasonable belief that it was the understanding of the parties that pecuniary compensation should be made for them, then an implied contract should be raised' to permit a recovery for what they are shown to be reasonably worth, is the doctrine of Hogg v. Laster, 56 Ark. 382, 19 S. W. 975. Mr. Beach says: "When one person renders services for another, which are known to and accepted by him, the law ordinarily implies a promise to pay therefor." 1 Beach, Modern Contracts, § 642. An exception to the ordinary rule is found in gratuitous services, services dictated by humanity alone, and for which compensation could not be expected from the nature of them, as rescuing persons from danger, suppressing fires, etc. And, again, where the relations are such as father and son, and other like close ties, when the service is referable to the relation alone, then compensation is not implied. See 1 Beach, Modern Contracts, § 649, 650. A nurse could have been hired to have performed the services in this case with no charge of inhumanity against these young men; but they were selected to do the service, and did it faithfully and under circumstances which render an implied contract just, and the general rule should apply. No question is raised, or could be raised under the evidence, as to the amount charged being reasonable.

The judgment is reversed, and cause remanded, with directions to allow the claim as one of the second class against the estate.

GERMAN-AMERICAN INS. CO. et al. v.

BROWN.

(Supreme Court of Arkansas. April 29, 1905.)

FIRE INSURANCE POLICIES

ACTIONS ON PROOTS OF LOSS-VALUE-PERSONAL KNOWLEDGE OF INSURED-CARE OF PROPERTY AFTER DISCOVERY OF FIRE-DUTY OF INSURED-EFFECT OF NEGLECT-BURDEN OF PROOF-EVI DENCE ADMISSIBILITY - SELF-INVITED ERBOR-INSTRUCTIONS-FAILURE TO REQUEST

EFFECT-ERROR

1. Where, in an action on fire policies issned to a firm of which plaintiff was surviving partner, defendant insurance companies set up false swearing by plaintiff in the proofs of loss made by him, concerning the value of the goods insured, letters and telegrams sent plaintiff by his deceased partner while in another city, relat ing to the purchase there of the goods, and containing expressions of his opinion concerning the condition and value thereof, were admissible for the purpose of showing plaintiff's good faith in fixing the value in the proofs of loss; it ap pearing that he had not examined the goods, and had no knowledge of their value, except that gained from an examination of the inventory and the statements of his partner.

2. The statement of value made in the proofs of loss was not required to be within plaintiff's personal knowledge.

3. Where one party introduces incompetent testimony, he cannot complain of the court's permitting the other party to introduce the same character of evidence, directed to the same point at issue.

4: Where, in an action on fire policies, defendants set up that the insured failed to exercise reasonable care after discovering the fire to preserve the property, as required by the terms of the policies, an instruction that failure to use such care would release defendants from liability was properly refused, in the absence of evidence that insured were in fault in this respect. 5. The burden was on defendants to prove such negligence on the part of the insured. 6. Under fire. policies providing, "This company shall not be liable for loss caused by * neglect of the insured to use all reasonable means to save and preserve the property at and after the fire," the neglect of insured to use all reasonable means to save the property would not avoid the policies, but would only prevent a recovery for so much of the property as could have been saved by the use of reasonable means at insured's command.

7. Even where there is evidence to support an instruction on a certain phase of a case, the omission of the court to instruct on the subject cannot be complained of, without requesting an instruction in proper form.

Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.

Actions by J. R. Brown against the German-American Insurance Company and the Etna Insurance Company-two cases tried together. Judgment for plaintiff against each of defendants, and they appeal. Affirmed.

Appellee, J. R. Brown, as surviving partner of the firm of McKibben & Brown, composed of appellee and F. R. McKibben, deceased, brought separate suits against appellants upon policies of insurance issued by each in the sum of $2,000 upon a stock of merchandise situated at Duncan, Ind. T. The two causes were tried together, the pleadings and proof being the same in each case, and a verdict was returned in favor of the plaintiff against each of the defendants for the full amount of each policy, with interest. The defendants answered separately, denying each allegation of the complaint, but the only pleaded defenses which were insisted upon at the trial are the following: First, that McKibben & Brown, at the time they procured the insurance, concealed or misrepresented material facts concerning the value of the property insured; second, that appellee, Brown, was guilty of false swearing in the proofs of loss rendered by him concerning the value of the property; third, that McKibben & Brown failed to exercise reasonable care after discovery of the fire to preserve the property, as required by the terms of the policies; fourth, that the property insured was burned by McKibben or Brown, or by their connivance and consent. The last-named defense was settled by the verdict of the jury upon conflicting testimony, and under proper instructions of the court, and need not be further mentioned.

It appears from the proof that McKibben & Brown both resided at Van Buren, Ark., and on April 15, 1901, entered into a written partnership contract to purchase a stock

!

[ocr errors]
[ocr errors]

of merchandise then at St. Paul, Minn., each ' to furnish one half of the necessary capital, and to ship the same to Chickasha, Ind. T., or some other point to be agreed upon, there to engage in the mercantile business. Thereafter McKibben went to St. Paul to purchase the stock, and, after repeated communication between the two by wire and mail, bought a secondhand stock of goods, which, according to inventory, was of the value of $7,641.87, but which they purchased for the sum of $3,992. One half of the price was paid by Brown in cash, and the other half by McKibben in money and lands. The goods were shipped to Duncan, Ind. T., and, on arrival there, McKibben & Brown, before the goods were unloaded from the cars, applied for and obtained the insurance policies sued on. This was May 1, 1901, in the afternoon, and as soon as the policies were issued they removed the goods to the storehouse which they had rented to do business in. The goods were not unpacked, and before daybreak on the following morning the house and all the goods were destroyed by fire. McKibben slept on a cot in the room adjoining the storeroom (a part of the same building), and, soon after the alarm of fire was sounded by the night watchman of the town, he emerged from the rear door of the building, half dressed, and apparently greatly distressed and suffocated. All the witnesses say that he sat upon the edge of his cot, not far from the burning building, in a helpless condition. Brown occupied a room at a hotel in the town that night, and appeared at the scene of the fire when it was well under way. Rumors were circulated, which came to the ears of McKibben & Brown, charging them with having set fire to the building; and the sentiment is shown to have been divided among the people of the town as to cause of the fire, and much excitement prevailed. One Carson, who owned the building, openly charged McKibben with having set fire to it, and demanded pay for the value of same; and McKibben agreed to pay $300 for the building when he collected the insurance, but later demanded the signature of Carson to a written agreement concerning the payment, reciting that McKibben promised to pay the amount to prevent blackmail. The adjuster of appellants reached Duncan on May 6th, and made an appointment with McKibben & Brown to meet the next morning to adjust the loss; but McKibben failed to meet the appointment, and was found during the day in a dying condition, having selfinflicted fatal wounds, from which he died in a few hours. Subsequently Brown rendered proofs of loss to appellants, in which he set forth, under oath, the value of the goods to be the amount of the inventory, $7.641.87. When McKibben & Brown applied for and obtained the insurance, they first stated to the agents of appellants who wrote the policies that they had a stock of goods worth about $8,000, and wanted $4.000 insurance, and later, when so required, before the issu

ance of the policies, presented the inventory to the agents. They did not mention the fact that the goods were bought secondhand, nor the price they had paid. Other material facts proved are referred to in the opinion. The court, of its own motion, instructed the jury, over the objections of defendants, as follows:

"(a) If Brown or McKibben, or either of them, knowingly made to the agents of the insurance companies a false and fraudulent statement of the value of the property to be insured, in order to procure the insurance, then the plaintiff cannot recover, and you should find for the defendants; but a misstatement of such value made in good faith, believing the same to be true, would not avoid the insurance.

"(b) If Brown in the proofs of loss knowingly made a false and fraudulent statement of the value of the property destroyed by fire, then he cannot recover; but a misstatement of such value made in good faith, believing the same to be true, will not avoid the policy.

"(c) If Brown and McKibben, or either of them, set fire to and burned the property insured, or intentionally caused the same to be done, the plaintiff cannot recover.

"(d) If Brown and McKibben, or either of them, made any false and fraudulent statement as to matters of fact material to the risk to the agents of the insurance companies, or fraudulently suppressed any matter of fact material to the risk, in order to procure the insurance, then in such case the plaintiff cannot recover; but the mere omission to state that the stock was secondhand, or that they had bought it at a discount of fortyeight per cent., would not be sufficient to avoid the insurance, unless the same was done with intent to defraud.

"(e) By 'cash value' is meant the cash market value at the time and place where the property was situated, and where the fire occurred, if there was such market value. If there was no such market value there, then the cash value in the nearest adjacent markets, or, if that is not shown, then the intrinsic value of the property. In determining the cash market value at the time and place where the fire occurred, you may consider the intrinsic value of the property; what value, if any, it had in other adjacent markets; the ease or difficulty of transporting it from place to place; the demand, or lack of it, for such property; that it was secondhand, if it was such; the deterioration, if any, from value at first hand; the price paid for it by plaintiff and McKibben; the opinion of witnesses who know the market or other value, if such are in evidence; and all other facts and circumstances in evidence tending to show value. Prospective and unrealized profits are not to be taken into consideration, but realized profits may be taken into consideration.

"(f) If you find for the plaintiff, you will ascertain the actual cash value of the stock

destroyed, take three-fourths of it, and divide that equally between the two policies; but in no event can you find against the defendants more than two thousand dollars each, exclusive of interest, no matter what the value of the property."

The defendants asked 16 instructions, all of which were refused.

Winchester & Martin, for appellants. Oscar L. Miles and Lovick P. Miles, for appellee.

McCULLOCH, J. (after stating the facts). 1. It is urged by appellants that the court erred in permitting appellee to introduce in evidence letters and telegrams addressed by McKibben, while in St. Paul, to Brown. These communications all related to the negotiations and purchase of the goods, and the only objectionable features thereof were expressions of McKibben's opinion concerning the condition and value of the goods. This testimony was competent for the purpose of showing Brown's good faith in fixing the value of the goods in the proof of loss. He stands charged with false swearing in that particular. He had not examined the goods, and had no knowledge of the value except that gained from an examination of the inventory and the statements of McKibben. The statement of value made in the proof of loss was not required to be within his personal knowledge, but any willfully false statement as to the value of the goods and amount of the loss avoided the policy. Therefore he was properly permitted to show his means of information upon which his statements as to value were based.

For another reason appellants are precludec from complaint at the introduction of this evidence. They first drew out on cross-examination of appellee the testimony as to communications from McKibben, and read in evidence two of the telegrams received by appellee from him. Where one party introduces incompetent testimony, he cannot complain at the action of the court in allowing the other party to introduce the same character of evidence, directed to the same point at issue. He waives all objection to error which he thus invites. St. Louis & S. F. R. Co. v. Kilpatrick, 67 Ark. 47, 54 S. W. 971; Klein v. German Nat. Bank, 69 Ark. 140, 61 S. W. 572, 86 Am. St. Rep. 183; Standard Life Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 49, 74 Am. St. Rep. 112; 1 Thompson on Trials, §§ 706, 707; Elliott. App. Proc. § 626; Reynolds v. State, 27 Neb. 90, 42 N. W. 903, 20 Am. St. Rep. 659; Fillmore v. Union Pac. Ry. Co., 2 Wyo. 94.

For the same reason, appellants cannot complain at the introduction by appellee of the McKibben letters written to his wife and to appellee Brown, respectively, immediately before his suicidal act. Appellants invited the error by their own course of examination and introduction of testimony.

The letter addressed to appellee Brown was as follows:

"Duncan, I. T. May 7, 1901. J. R. Brown, Esqr.-Dear Sir: Our business has been a failure, and I cannot live any longer, as it is only trouble. I want to be buried at Duncan, as I don't want my friends at home to forego the humiliation. I am innocent of the charges made against me by Carson and hope may it be known some time. You are justly entitled to your insurance, and should have it without delay. I hope you will be able to get a settlement without delay. Yours truly, F. R. McKibben.""

The letter to his wife was of the same import, except that it contained no reference to the Carson charges, and did contain matters of personal confidence and words of affectionate farewell to his wife and children. These letters were found by appellee in McKibben's valise on the day of his death, but before discovery of his suicide.

Appellants first drew out, over the objection of appellee, the fact of McKibben's suicide, and all the circumstances thereof, and the charges made against him by Carson. On cross-examination they elicited from appellee testimony concerning these matters, and the conduct and statements of McKibben throughout. They caused appellee to state in his testimony the fact that he found the letters in McKibben's valise, and that they contained information of his suicidal intent. The manifest design of appellants in making this proof, together with the proof that McKibben was charged with having burned the property, was to draw the inference that he committed suicide because of his guilt of the charge, and to escape the consequences thereof. After putting all these irrelevant facts before the jury by incompetent testimony, and after proving the finding and existence of the letters, they cannot complain at the introduction of the letters themselves. The introduction of the letters was clearly invited error.

2. The court gave no instruction upon or as to the defense tendered that McKibben & Brown failed to exercise care to preserve the property, and refused to give the following instruction on that subject asked by appellant: "The court instructs the jury that if they find from the evidence that said contract of insurance contained a provision that said defendant company should not be liable for loss caused directly or indirectly by neglect of the insured to use all reasonable means to save and preserve the property covered by said contract of insurance entered into between plaintiff and defendant, at and after the fire, and if you find that plaintiff failed to use all reasonable means to save and preserve said property at or after the fire, said failure would avoid the contract, and defendant would not be liable to plaintiff for loss arising thereunder, and your verdict should be for the defendant." This instruction was properly refused for two reasons:

In the first place, there was no testimony tending to show that either McKibben or Brown had, in the language of the policy, neglected to "use all reasonable means to save and preserve the property at and after the fire." The burden was upon appellants to prove such negligence on the part of the insured. There was a conflict in the testimony as to whether or not some of the property could not have been saved by the bystanders, but none that either of the insured could have done so. The testimony introduced by appellants showed affirmatively that Brown did not reach the scene of the fire until too late to have saved any of the property, and that McKibben was suffocated and in a helpless condition, and unable, for that reason, to save any of the property. The instruction was objectionable and improper for the reason that it, in effect, told the jury that if the insured neglected to use all reasonable means to save the property, it would avoid the policy. Such was not true, under the terms of the policy, as it provided for no forfeiture of the contract because of a failure to save some of the property. The effect of such neglect on the part of the insured would only have been to prevent a recovery of so much of the property as could have been saved by the use of reasonable means at their command. The language of the policies on that subject is as follows: "This company shall not be liable for loss caused * * by neglect of the insured to use all reasonable means to save and preserve the property at and after the fire." This language cannot be interpreted to mean that a negligent failure to use such means to save the property works a forfeiture of the entire policy. The instruction asked by appellants conveying that interpretation of the contract was therefore erroneous, and was properly refused. Even if there had been evidence to support an instruction upon this phase of the case, appellants cannot, without asking an instruction in proper form, complain at the omission of the court to instruct on the subject.

Many other instructions were asked by appellants and refused by the court, but we think that the instructions given by the court correctly placed before the jury the law applicable to the case upon the issues raised by the pleadings and evidence.

Upon the whole, we find no error for which appellants can ask a reversal, and the judgment is therefore affirmed.

HIGHT v. KLINGENSMITH. (Supreme Court of Arkansas. April 29, 1905.) CONTRACTS-TERMS-EVIDENCE-ACTION—QUES

TION FOR JURY-INSTRUCTIONS

-ADMISSIBILITY.

1. In an action by an architect to recover for drawing plans, held, that it was a question for the jury whether defendant had accepted certain plans after they were made, knowing that

they called for the construction of a building in excess of defendant's original cost limitation. 2. Where the issue was whether defendant had received certain plans from plaintiff, knowing that they called for an expenditure in excess of the limitation which he had originally placed on the plans, defendant cannot, on appeal, complain of an instruction using the term "accepted," though it did not explain its meaning and effect, where no request was made for such explanation.

3. In an action by an architect to recover for drawing plans for a house for defendant, the issue was whether defendant had accepted the plans in question; and plaintiff testified that when he told defendant what the house desired by his wife and daughter would cost, and proposed to change the plans so as to reduce the cost, the wife and daughter objected, and that defendant then instructed plaintiff to go ahead and draw the plans. Held, that an instruction that plaintiff was not entitled to recover, except in certain cases, including the fact that defendant had directed or knowingly permitted plaintiff to proceed to draw the plans in accordance with the wishes of defendant's wife and daughter, was proper.

4. On an issue as to the terms of a contract between plaintiff, an architect, and defendant, relative to the drawing of plans for defendant's house, the declarations of defendant's wife in his presence, when the terms of the contract were being considered, coupled with his acquiescence in her wishes as to the contract, were adinissible in evidence.

Appeal from Circuit Court, Washington County; John N. Tillman, Judge.

Action by A. Klingensmith against J. P. Hight. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The appellee filed his complaint against appellant in the Washington circuit court for the April term, 1903, alleging that "said defendant in the fall of 1902 employed plaintiff as an architect to prepare and furnish for him sketches, plans, and specifications for a certain residence which defendant proposed to erect in Fayetteville, Arkansas," and that, "in pursuance of such employment, plaintiff first drew a general outline or plan," and "submitted the same to defendant," and advised defendant of the details thereof, and "of the probable cost of same," and, "being requested by the defendant so to do, made and furnished complete plans," etc. Also that he "made and furnished to him plans, details, and specifications for another six-room dwelling house," and delivered said plans and specifications to defendant; that defendant stated at the time that he expected to construct said buildings according to the plans so furnished by plaintiff, but plaintiff alleges that defendant has "since abandoned such purposes"; that, by the terms of the contract, plaintiff was to receive as compensation for his services "three per cent. of the cost of constructing said houses"; that the residence first above named could be constructed for the sum of $6,350, and the other could be constructed for the sum of $2,000, making a total of $8,350; that plaintiff has received $100 in payment, and the balance of $150.50 is due and unpaid.

Appellant filed an answer admitting the employment of plaintiff to draw for him the

plans and specifications of the two buildings, and that he advised defendant of the details thereof and the cost of same. Alleges that plaintiff claimed to be "a skillful architect," and to be "competent" to make "a correct estimate" of the cost of the material and construction according to the plans and specifications; that defendant "relied entirely upon the representations of said plaintiff," all of which was well known to plaintiff at the time; that plaintiff represented to defendant that the cost of the College avenue residence would not exceed $4,100 when completed, and that, relying upon plaintiff's "skill and superior knowledge in such matters, and not upon his own judgment," he agreed to let the contract for said building; that plaintiff also drew plans and specifications for another building, a six-room dwelling house, “which defendant desired to erect and construct in part from the material of a brick building then standing on defendant's premises," and which building defendant then contemplated tearing down and moving to the rear of said lot; that plaintiff represented that the cost of said work would not exceed $800, and that defendant, "relying upon the superior skill and judgment of said plaintiff in the premises," and believing the representations true, agreed to let the contract at the price aforesaid; that defendant advised plaintiff that he relied on his estimate of the cost of said buildings, and that plaintiff's "positive statements were that the cost would not exceed $4,100 for the residence and $800 for the six-room cottage"; that defendant "has endeavored in good faith to let the contract," but "has been wholly unable to do so," within the limit of cost guarantied by plaintiff. Defendant also states that he never contemplated the erection of the buildings at the cost of $6,350 for the residence and $2,000 for the cottage. and that the only agreement made by him to pay the plaintiff for the plans and specifications was based upon the estimated cost of said buildings furnished him by plaintiff; that he has paid plaintiff $100, "which was the full amount demanded by him," and that nothing more was to be paid until the houses were completed; that it is not true that defendant has "abandoned his purposes of having said buildings constructed according to said plans and specifications," but alleges that he is willing to have same constructed, within the cost limit fixed by plaintiff.

[blocks in formation]

about $4,000 for the residence on College avenue. Appellee said that he went to the house of the appellant, and asked the wife and daughter of appellant about the size of the rooms, what would suit, etc., and then drew up and submitted a rough sketch. His testimony proceeds as follows: "I went to the house once or twice and consulted' them, and they approved of everything that I was doing. I said nothing about the price. When I had the plans half done, I took them up to Dr. Hight's house, and showed them to them. I realized at the time that they would cost more than Dr. Hight expressly desired to expend. I said, 'I am here to tell you that, in place of costing $4,000, the amount that Dr. Hight desired it to cost, it will cost $8,000. This was said to Dr. Hight and wife and daughter. I said I was willing to make a new set of plans, and not charge one cent for these. Mrs. Hight said, 'It is just what I want.' Dr. Hight said nothing. He finally said, '$8,000 is a large sum, and I do not like to expend that amount of money.' He said, 'You finish the plans, and I will see.' Dr. Hight told me that he wanted to move his present house to the lower end of the lot, building the new house on the site of the old one. I told him that it would cost about $800 to move the old house and erect it on the lower end of the lot, using the same doors, windows, joists, etc. I did not make a contract for moving it. I did furnish defendant with one complete set of plans and specifications for that house. After waiting quite a while I asked Dr. Hight for the money, and he said, 'How much? I said, '$100.' He said he thought it was a good deal, and I told him that I claimed the right to collect two-thirds or two-fifths of the whole bill at the time the plans were delivered. The doctor gave me a check for $100. I claim a balance due of $150.50. When Dr. Hight paid me the $100, I did not tell him that there would be any more due. The plans for the house on College avenue were drawn to cost $8,000, and I furnished the plans with the distinct understanding that it would cost $8,000. I could make plans that would cost $4,000. I did not explain to him about any plans that would cost $6,350. Mrs. Hight said that it was just what she wanted. I said that this house would cost $8,000, and I think they understood it. Dr. Hight told me that he would not expend over $4,000. I went with the plans, and told him that it would cost $8,000. They said, 'Go ahead and finish the plans.' It was part of my contract, on the three per cent. basis, to come up from time to time to superintend the construction of the buildings; and the money, as extra compensation, that I was to receive, was my actual expenses, to be paid by Dr. Hight."

The testimony on behalf of appellant tended to show that he employed appellee, and was to pay him 3 per cent. of the cost of the buildings for plans, specifications, and su

« PreviousContinue »