(Ark. must be set aside when he was denied the right | S.) 825; Rucker v. Martin, 94 Ark. 365, 126 to offer, and have received all the evidence and S. W. 1062. witnesses produced by him, for under no circumstances can it be judicially known that such additional evidence or witnesses, if received, would not have overcome those of his adversary. To restrict the parties, as courts sometimes do, to an equal number of witnesses on each side of the question, must, under ordinary circumstances, result in a verdict against the person on whom the burden of proof rests, for he cannot be held to have sustained such burden where the testimony offered by him only equals that offered by his adversary." See, also, 26 R. C. L. 1034, § 37; Cook Brewing Co. v. Ryan, 98 Ill. App. 448; Crane Co. v. Stammers, 83 Ill. App. 329; Traders' Ins. Co. v. Catlin, 71 Ill. App. 569; Village of South Danville v. Jacobs, 42 Ill. App. 533. [2, 3] We approve the rule thus expressed by Judge Freeman and hold that a trial court taking testimony ore tenus should not undertake to limit the number of witnesses introduced by the respective parties until it becomes obvious to the court that the parties by the sheer number of witnesses introduced to some particular fact or issue are merely producing cumulative testimony, thus unnecessarily consuming the time of the court, and hampering the administration of justice. But, while condemning the rule above announced by the trial court, it appears that the court in this case departed from its own rule, for it permitted the appellant to introduce three witnesses. Thus the rule was not enforced to the prejudice of the appellants. Furthermore, the appellant did not offer to introduce any more witnesses whose testimony they desired in addition to the testimony of the witnesses already adduced. Therefore the appellants were not prejudiced in the rule announced by the trial court. 2. The appellant contends that the court erred in granting relief "not asked for in the complaint or petition for injunction." The appellees prayed for an order of the court perpetually "restraining and enjoining the defendant J. L. Henson, his agents, servants, and employees, from going into the workings of old mine No. 17 or any part thereof, and from taking therefrom any of the pillars or supports located therein or from in any other way obstructing the passage ways of said mine line, or in any other way preventing or obstructing these plaintiffs from using same as a passage way to reach the body of coal located adjacent to and on the north of said workings, * and all other proper relief." [4] The complaint on appeal should be treated as amended to conform to the issues that were raised by the testimony introduced by the parties without objection. Citizens' Fire Ins. Co. v. Lord, 100 Ark. 212, 139 S. W. 1114; Pulaski Gaslight Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189, 1199, 32 L. R. A. (N. tion or complaint was certainly sufficiently The prayer of the appellees in their peticomprehensive to justify the court in granting to the appellees all the relief set forth in the decree. Was the testimony adduced sufficient to sustain the findings upon which the court rendered its decree? This is purely a question of fact and one we have found difficult to decide. It could serve no useful purpose as a precedent to set forth and discuss in detail the testimony, which is rather vothe provisions of the various leases and the luminous. After a careful consideration of testimony of the witnesses concerning the workings of the coal mines thereunder, we are convinced that the findings of the trial evidence. We therefore adopt such findings court are sustained by a preponderance of the as our own. by the construction which the Mama Coal We are largely controlled in this conclusion Company, the immediate lessor of the parties, placed upon the leases under which the parties to this record were operating the mines under their respective leases. The record shows that the Mama Coal Company, when its attention was called to the local situation in the operation of the mines by the respective parties, through its board of directors issued a notice in writing to the appellant, which, among other things, specified as follows: Coal Company that you, in working the mine "It is come to the attention of the Mama No. 17% under your lease from said Mama Coal Company, have removed and are about to remove some of the remaining pillars in mine No. 17 and in front of slope of mine No. 5, all of which is contrary to any rights vested in you by your lease on mine No. 172, and all of which is not in keeping with good mining, under your said lease. And you are hereby and is contrary to any rights vested in you further notified not to in any way disturb any of the pillars or workings of said mine No. 17, or to shut off or obstruct the extension of the slope of mine No. 5, and that any act upon your part in violation of this notice shall and will operate as a cancellation of your said lease on mine No. 171⁄2." This construction of the lease by the Mama Coal Company, taken in connection with the other testimony adduced on behalf of the appellees, shows that the appellants by undertaking to shut off and obstruct the appellees in the extension of their main slope in mine No. 5 were violating the rights of the appellees under the contract by which the partnership between Henson and Strickland was dissolved and under the terms of which the appellees opened up mine No. 5 between mine No. 171⁄2 and mine No. 3. The lease executed by the Mama Coal Company to the appellees (which was for the purpose of enabling the appellees to open up mine No. 5 in pursu (238 S.W.) Fred Isgrig and Hendricks & Snodgress, all of Little Rock, for appellee. WOOD, J. The appellant and the appellee entered into the following contract: "Teacher's Contract with the Argenta School Board. ance of the contract of dissolution of the Coleman, Robinson & House, of Little partnership between Henson and Strickland) Rock, for appellant. provided that the lessees (appellees here) "should open up mine No. 5 halfway between mine No. 171⁄2 and the old manway to mine No. 17, and agree to mine coal in such a way as not to interfere with the workings of either mine No. 171⁄2 or mine No. 3." The preponderance of the evidence shows that the workings of mine No. 5 by the appellees did not interfere with the workings of mine No. 17% or mine No. 3, but the appellants in driving their "second west entry" into the workings of old mine No. 17 and in following said entry to the west as they were doing would shut off and prevent the appellees from extending their main slope of their mine No. 5 on the lands covered by their lease. The trial court, after hearing all the evidence, interpreted the contracts as the Mama Coal Company interpreted them as shown by the above notice. Without entering into further detail, it suffices to say that the findings of the trial court are in all things correct, and its decree is therefore affirmed. ARGENTA SPECIAL SCHOOL DIST. v. (Supreme Court of Arkansas. Feb. 27, 1922.) Under contract providing that a teacher's services could be discontinued any time after a majority of the school board decided they were unsatisfactory, the board had the right at any time after he entered on performance of his contract to determine that his services were unsatisfactory, and to discharge him without notice, but they had no power to discharge him on the ground that his services were unsatisfactory before he had performed any service under the contract and before he was to begin to render service. "I, J. P. Strickland, hereby enter the service of the Argenta schools in the capacity of teacher, for the sum of $110.00 per month, with the understanding that my services may be dispensed with and my salary discontinued at any time after it has been decided by a majority of said board that my services are unsatisfactory. Term to begin in September and continue nine months. "I hold first grade license, which expires -, 1919, "Argenta, Ark. "April 23, 1919." The appellee instituted this action against the appellant, and in his complaint set up the contract and alleged that the appellant arbitrarily refused to permit the appellee to carry out the contract, although he was ready and willing to do so, to his damage in the sum of $990, for which he prayed judgment. In its answer the appellant admitted the contract and set up that at a meeting of its board of directors held in the city of North Little Rock on the 8th of August, 1919, a majority of the board found that the services of the appellee were unsatisfactory and discharged him pursuant to the provisions of the contract. It denied that it arbitrarily refused to permit the appellee to carry out the contract. The undisputed testimony shows that the appellant on August 8, 1919, at a meeting of its board of directors, by a majority of the board discharged the appellee on the ground that his services were unsatisfactory. The undisputed testimony further shows that the board discharged the appellee without 2. Schools and school districts 141(4), 142 giving him any notice of its contemplated ac-Board may discharge immoral teacher be- tion. At the conclusion of the testimony fore or after entering on his services, but the court refused to grant the prayer of the must prove immorality in a suit for damages. appellant to instruct a verdict in its favor, A school board has the inherent power to but over the objection of the appellant grantdischarge a teacher on the ground of immoral-ed the appellee's prayer to instruct a verity or general unfitness at any time before his dict in his favor in the sum of $990. From services begin, or after he has entered on his the judgment in appellee's favor for that services under his contract, but it is incumsum is this appeal. bent on the board to justify its action 'by proof that dismissal was because of such immorality or unfitness in an action by the discharged teacher for damages. [1] The appellant contends that under the contract it had the absolute right to determine, in advance of the time when the appellee's services were to begin under the conAppeal from Circuit Court, Pulaski Coun- tract, that such services would be unsatisfacty; Guy Fulk, Judge. Action by J. P. Strickland against the Argenta Special School District. Judgment for plaintiff, and defendant appeals. Affirmed. tory to the appellant and to discharge him without notice. We cannot agree with the appellant in this construction of the contract. The contract contemplated that the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes appellee would render services to the appel-, to find work and had failed. The undisputed lant as teacher, such services to begin in testimony shows that appellant by its breach September and to continue for nine school of contract had damaged the appellee in the months. The appellant violated its contract sum of $990, the amount the board had conby discharging the appellee before the time tracted to pay him for his services. The for his services to commence. The contract court, therefore, correctly ruled in instructwas for appellee's services, and the boarding the jury to return a verdict in favor of could not discharge the appellee on the the appellee and in rendering judgment in his ground that his "services were unsatisfac favor for such sum. tory" before he had performed any service Affirmed. under the contract and before the time when he was to begin to render service to the district. The board unquestionably would have had the right under the contract to have dispensed with appellee's services at any time after the appellee had entered upon the per WATKINS v. RELIANCE LIFE INS. CO. (No. 146.) formance of his contract whenever a majori- (Supreme Court of Arkansas. Feb. 13, 1922. ty of the board determined for any reason that such services were unsatisfactory, and a majority had such right to dispense with his services without giving him any notice of their contemplated action in that regard. 13 C. J. § 768; Campbell Printing-Press Co. v. Thorp et al. (C. C.) 36 Fed. 414, 1 L. R. A. 645, and note; Tiffany v. Pacific Sewer Pipe Co., 180 Cal. 700, 182 Pac. 428, 6 A. L. R. 1493. But the board, as the undisputed evidence shows, undertook to discharge the appellee, not on the ground that any services actually rendered were unsatisfactory, but on the ground that his services would be unsatisfactory because of certain protests that had been made by patrons of the school and certain charges brought to the attention of the board against the appellee's moral character, which, whether true or not, in the judgment of the board rendered his employment as a teacher inadvisable and any services contemplated by the contract unsatisfactory. Rehearing Denied March 13, 1922.) I. Appeal and error 1050 (2)—Insurance In action on accident policy, defended on ground insured shot himself intentionally, where insurer's witness had testified that after insured's death plaintiff beneficiary "came in to make out a death claim, and I talked to her about it," question by insurer's attorney, "Was there any question at that time about any accidental discharge of the pistol?" and the answer, "No," were irrelevant, improper, and prejudicial; the form of question and answer if the beneficiary raised no question and did not being calculated to make the jury believe that, contend at the time of making proofs of death that insured died by accidental means, she ought not to be heard at the trial to make such contention. 2. Insurance 646(7)—Beneficiary of insur ance policy makes prima facie case by proof of death, as presumption is against suicide. The beneficiary of an accident policy is under no duty, when making proof of death, to raise the issue as to whether the death was accidental or by suicide, but establishes a prima facie case by proof of the death as a result of rests upon the insurance company to overcome the presumption that the death was accidental and not by suicide. violent and external means, and the burden Appeal from Circuit Court, Jefferson County; W. B. Sorrells, Judge. Action by Sarah A. Watkins against the Reliance Life Insurance Company. From a judgment for plaintiff for less than the amount claimed, plaintiff appeals. Reversed [2] To be sure, the board had the inherent power to discharge the appellee as a teacher on the ground of immorality or general unfitness at any time before his services began or after he had entered upon his services under the contract. But if the board did discharge appellee on the above grounds, it was incumbent upon it to justify its conduct by proof that the dismissal of appellee was because of immoralities or other causes rendering him incompetent or unfit to teach in the public schools. The board did not attempt to justify its action by making such proof, by defended solely on the ground that the contract itself gave the majority of the board the right to discharge him at any time after the contract was executed, if they concluded his services would be unsatisfactory, and even before the services began. The undisputed pellee. testimony shows that there was a clear breach of contract on the part of the appellant; that the appellee, during the time contemplated by the contract when he was to render services to the appellant, was ready to perform those services; that he had tried and remanded. Danaher & Danaher, of Pine Bluff, for appellant. Coleman & Gantt, of Pine Bluff, for ap WOOD, J. The appellant, as beneficiary, brought this action against the appellee to recover on three policies of life insurance; two for $1,000 each, issued February 18, 1916, and one for $1,000, issued January 22, 1920. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (238 S.W.) To one of the policies issued February 18, There were several other grounds, but the 1916, there was attached an additional ac- above is all we find it necessary to consider. cident policy for $1,000. This policy stip- The motion for a new trial was overruled, ulated that if Carl F. Watkins should die and this appeal has been duly prosecuted. from the results of bodily injury, effected C. A. Lee was a witness on behalf of the solely through external, violent, and acciden- defendant below (appellee here). He testital means, the defendant would pay to the fied that he lived in the city of Pine Bluff, beneficiary, Sarah A. Watkins, the additional | Ark., and was manager of the Metropolitan sum of $1,000. The appellant alleged that Life Insurance Company. He was acquaintthe insured, Carl F. Watkins, died on No-ed with Carl Watkins, the insured, and the vember 17, 1920, and that the injury from appellant, Mrs. Watkins, the mother of Carl which he died was caused by a pistol shot through the head; that the pistol was accidentally discharged in a manner unknown to the appellant. The appellant prayed for judgment in the sum of $4,000. The answer admitted that the appellee was indebted to the appellant in the sum of $2,000, but denied that it was indebted to the appellee under the policy issued January 22, 1920, because said policy contained the following provision: Watkins. Carl had two policies in witness' company. Witness had a conversation with Mrs. Watkins, the beneficiary, after Carl's death, regarding the manner of his death. "She came in to make out a death claim, and I talked with her about it." She told witness that she did not see Carl shoot himself, but when she heard the shot she went to his room and got to him in time to lay him down on the floor. She did not say I whether or not he killed himself. She stat ed the facts as she stated them on the wit "Self-destruction during the first policy year, whether the insured be sane or insane, is a ness stand. Witness was then asked the folrisk not assumed by the company, but in such lowing question: "Was there any question case the company will return in full all pre-at that time about any accidental discharge miums actually received." of the pistol?" And the witness answered, "No." The attorney for appellant objected to the question and answer, and the objection was overruled, to which ruling of the court the attorney for the appellant duly ex cepted. The appellee further alleged that Carl F. Watkins destroyed himself on November 17, 1920, during the first policy year, and that under the above provision the appellant was not entitled to recover on this policy anyThe question and answer were irrevelant thing except the returned premiums, which the appellee tendered, amounting to $31.50. and highly prejudicial to the rights of the The appellee further alleged that the policy appellant. Whether the attorney for the apof February 18, 1916, contained the follow-pellee so intended it or not, the form in ing provision: "This policy does not extend to any accidental bodily injury caused or contributed to directly or indirectly by sickness or disease, nor cover disappearance nor war risk nor loss due to hernia, however caused, nor loss resulting from any means or action, which, if used or done by the insured while in the possession of all mental faculties, would be deemed intentional or self-inflicted, nor loss suffered while, or resulting from, riding or being in or on an aerial device or conveyance." The appellee pleaded the above provision in bar of appellant's right to recover on the policy containing such provision. The trial resulted in a verdict and judgment in favor of the appellant against the appellee in the sum of $2,031.50. The result was to allow the appellant to recover only the sum which the appellee admitted was due on the policies, and to deny her the right to recover the additional sum of $2,000, which she alleged to be due on the policies. which the question was propounded and the answer thereto were calculated to impress the jury with the fact that appellant, soon after the death of her son, when making proof of his death and asserting her claim under policies of insurance, did not at that time assert or contend that the death of her son was caused by the accidental discharge of a pistol. The form of the question and answer were calculated to make the jury believe that if the appellant raised no question and did not contend at the time she was making the proofs of death that the insured came to his death by accidental means, that she ought not to be heard at the trial to contend that the death was caused by an accidental discharge of a pistol; that the fact that she did not so contend when she was making proof of death was indicative of the fact that she did not make the contention then because it was not true, and she knew it was not true. In other words, that she knew at that time that her son's death was [1] One of the grounds of motion for a not accidental, but suicidal. new trial is: "The court erred in permitting witness Lee, over plaintiff's objections, to be asked and to answer the following question: 'Was there any objection at that time about any accidental discharge of the pistol? A. 'No.'" [2] It occurs to us that the necessary implication from the form of the question and the answer thereto is that the appellant, soon after the death occurred, did not claim that the death was accidental, and that if she did not raise the question then-so soon after the death occurred-her subsequent not the case here. Appellee's witness Lee claim and contention at the trial were but was permitted to testify to all that Mrs. an afterthought, and should be so treated. Watkins said and did when making proofs The question and answer, having been al- of death. This witness, after testifying to lowed to go to the jury in that form, at least all she said and did at that time, and after furnished the counsel for the appellee legiti- saying that "she stated the facts then as she mate ground to argue that her claim and stated them on the witness stand," was contention at the trial of an accidental kill- asked, and permitted, to go further, and to ing by a discharge of a pistol was but an express his own opinion that the effect of afterthought or fabrication. The form of what Mrs. Watkins had said and done was the question propounded would lead the jury to raise no question-i. e., make no claim or to draw the inference that it was appellant's contention-at the time of proofs of death duty, at the time she was making proof of that the killing was accidental. As we view death and at the time Lee was receiving it, the question propounded was tantamount such proof, to in some manner raise the is- to eliciting such a conclusion or opinion from sue as to whether the death was accidental the witness. After testifying fully to what or by suicide. Such was not the law at all. Mrs. Watkins did and said at the time of She established a prima facie case against making proofs of death, it was for the jury, the company for the payment of her claim and not for the witness, to say whether the under the policy when she made proof of effect of her conduct at that time was to the death of her son as the result of violent make no claim that the killing was done by and external means. In such cases the pre-accident, and thereby to virtually admit that sumption is that death is accidental, and the it was suicide. It was for the jury, not the burden was upon the appellee company to overcome such presumption. "All that is necessary for a plaintiff to show to make out a prima facie case is the contract and death." See Etna Life Ins. Co. v. Taylor, 128 Ark. 160, 193 S. W. 540, Ann. Cas. 1918B, 1122; Grand Lodge v. Banister, 80 Ark. 195, 96 S. W. 742; Bus. Men's Acc. Ass'n v. Cowden, 131 Ark. 419, 199 S. W. 108; Atna Life Ins. Co. v. Little, 146 Ark. 70, 225 S. W. 298; Metropolitan Casualty Ins. Co. v. Chambers, 136 Ark. 84, 206 S. W. 64; Central Coal & Coke Co. v. Burns, 140 Ark. 147, 215 S. W. 265; Railway Mail Ass'n v. Johnson, 140 Ark. 289, 215 S. W. 682. Now the appellee did not offer to prove by the witness receiving proofs of death that he propounded questions to the appellant which were intended to elicit from her information as to how the death occurred, whether accidental or by suicide, and did not offer to prove that appellant answered any questions or made any admissions concerning that issue. To be sure, if Mrs. Watkins when making proof of the death of her son had done or said anything to warrant the conclusion that she was not then contending that the death was accidental, but, on the contrary, had by her words or acts at that time admitted or declared that the death was by suicide, then it would be competent to show what those acts and declarations were, because, under such circumstances, her acts and declarations would be relevant, as in the nature of admissions against interest and contrary to her contention at the trial. Shinn v. Tucker, 37 Ark. 580-592; Woodmen of the World v. Jackson, 80 Ark. 419, 97 S. W. 673; St. L., I. M. & So. Ry. Co. v. Dallas, 93 Ark. 209, 124 S. W. 247; 16 Cyc. 954; 22 C. J. 317; 2 Jones, Comm. on Evidence, § 236; 1 R. C. L. 477. But such is witness, to determine whether the words and acts of Mrs. Watkins at the time of making proofs of death were in the nature of admissions against her interest, and inconsistent with her contention at the trial. The question was improper, and, as already stated, prejudicial to appellant. Other errors were assigned, but the above is the only reversible error in the record. For the error indicated, the judgment is reversed, and the cause remanded for a new trial. DELONEY v. DILLARD. (No. 191.) (Supreme Court of Arkansas. Feb. 27, 1922. Concurring Opinion, March 13, 1922.) I. Banks and banking 57 - Act declaring bank president liable to depositor for failure to file certificate with county clerk of bank's condition not repealed by law requiring reports to bank commissioner. liability on the president of an insolvent bank Crawford & Moses' Dig. § 1715, imposing to a depositor for failure to file a certificate with the county clerk showing the condition of the bank's affairs, was not repealed by General Banking Act (Crawford & Moses' Dig. §§ 665 to 728), requiring reports to the bank commissioner and examinations of banks, and authorizing examination of officers, agents, or employees under oath touching the bank's af fairs. 2. Banks and banking ~58 (1⁄2)—Depositor of insolvent bank cannot sue president for failure to file certificate of condition with county clerk without first requesting bank commissioner to sue for his benefit. In view of General Banking Law (Crawford & Moses' Digest, §§ 665 to 728), requiring the bank commissioner to take immediate charge of a failing bank and wind up all its For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |