On the back of the receipt is the following: "The agent is not authorized to give this height and weight indicated in the table below, receipt to persons exceeding the limits of

or to those who have been rejected by another

W. E. Spence, of Piggott, and Oliver & company, or who are not in good health." Oliver, of Corning, for appellant.

M. P. Huddleston, of Paragould, and Chas. G. Revelle, of St. Louis, Mo., for appellee.

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(232 S.W.)

97 Ark. 576, 134 S. W. 1189, 1199, 32 L. R. A. (N. S.) 825; Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S. W. 130; Etna Ins. Co. v. Short, 124 Ark. 505, 187 S. W. 657.

[2, 3] There was no completed contract of insurance under those provisions of the application and the policy to the effect that the insurance shall not be in force until the payment of the premium and the delivery of the policy while the assured was in good health. The general' doctrine is that contracts of insurance may be made by parol, and, such being the case, of course, delivery of the policy is not essential to the completion of the contract of insurance, and where the minds of the insured and the insurer for a valuable consideration have met upon all the terms of the contract the contract is complete and enforceable, even though it was intend

E. R. Winton testified that he was the the part of the appellee to the testimony adsoliciting agent of the appellee and took the duced in evidence by the appellant, we will application of M. E. Jenkins. When an ap- treat the complaint as amended to declare plicant made settlement of the premium wit- upon an oral contract of insurance such as ness signed the receipt and gave it to the appellant contends was evidenced by the applicant. In this case Jenkins made settle- documentary and oral testimony in the case. ment by paying 71 cents in cash and execut- Bank v. Burton, 67 Ark. 426, 55 S. W. 483; ing his note payable to witness for the sum Wrought Iron Range Co. v. Young, 85 Ark. of $100. Witness accepted that in full set- 217, 107 S. W. 674; Griffin v. Anderson-Tulley tlement. Witness did not detach the receipt | Co., 91 Ark. 292, 121 S. W. 297, 134 Am. St. from the application and give it to Jenkins, Rep. 73; Pulaski Gaslight Co. v. McClintock, because they were in a hurry. The witness accepted the note unconditionally, just like he would have accepted the cash. After witness received the policy, he did not see Jenkins again before his death. When witness received the policy for delivery, it was accompanied by a letter which instructed witness to deliver the policy only during the lifetime and continued good health of the applicant, and that the signature of the applicant must be obtained showing that he was in good health. Witness never delivered the policy nor collected the note. Witness offered to return the note and the 71 cents to the administrator, and he refused it. Witness returned the policy to the company on March 19th. The policy sent witness for delivery was the kind of policy applied for by Jenkins. On behalf of the appellee Anthony Gazerted by the parties to be evidenced by a policy, testified that he was the manager of the policy department, which has jurisdiction over applications and the writing of policies. Appellee had a form letter, "7-B," one of which was sent to appellee's agent, Winton, on or about the 6th of March, 1920, together with the policy on the life of Jenkins. The records would usually show if this letter had been returned. Witness had made a careful search for it and could not find it. Winton was recalled by the appellant, and stated in addition to his former testimony that Form B referred to, and which he received with the policy, was a kind of receipt showing that the applicant for insurance had received the policy, and that he was in good health and had had no sickness since his examination. The applicant had to state in this form letter that neither he nor any of his family had had influenza since his examination. It instruced witness not to deliver the policy, unless witness first obtained the signature of Jenkins to the receipt Form 7-B.

At the conclusion of the testimony the court, at the request of the appellee, instructed a verdict in its favor. Judgment was rendered in favor of the appellee, dismissing appellant's complaint, and for costs, and from that judgment is this appeal.

but which because of some fortuity was not delivered before the death of the insured. Mutual Life Ins. Co. v. Parrish, 66 Ark. 612, 52 S. W. 438; 1 Cooley's Briefs, 442 (a), 395 (d), 396, and cases cited in note; Etna Life ins. Co. v. Short, 124 Ark. supra; 25 Cyc. 716 (a). But, of course, the parties may agree as a condition precedent to a complete and enforceable contract of insurance, not only that there shall be a delivery of the policy, but also a delivery while the insured is in good health. McCully, Adm'r, v. Phonix Life Ins. Co., 18 W. Va. 782; Kohen v. Mutual Reserve Fund Life Ass'n (C. C.) 28 Fed. 705; 1 Cooley's Briefs, 444, 445, and other cases there cited. See Nat. Life Ass'n v. Speer, 111 Ark. 173, 163 S. W. 1188.

[4] The liability or nonliability of the appellee turns upon the meaning of the following clause in the receipt, to wit:

"If full cash settlement required has been made with the application, the insurance will be in force from date of approval of the completed application by the company's medical director."

It is the usual, and so far as we know the universal, practice of life insurance companies not to issue policies of insurance, [1] The appellant contends that the con- except upon approval of the application tract of insurance upon which he bases his therefor by a medical examiner or director, action was consummated upon the approval as the case may be. The issuance of the of the application by the company's medical policy on the 5th of March upon precisely director and became a complete and binding the terms called for in the application, and, contract without the issuance and delivery as shown by the recitals in the policy, for of the policy. As there was no objection on the premium mentioned therein, and which

The receipt contained the following pro- as he had no authority to bind the company vision:

(232 S.W.)

without consideration. Among other things the company's medical director, regardless the court said: of whether the policy had been issued and delivered or not.

"If this premium was not paid in cash, the contract of insurance was not binding on the company. ** The insurance company had no knowledge that the defendant had not paid his premium in cash, and did not waive the condition printed on the back of the contract. They might be willing to allow their agent to bind them by a contract if he received the premium in cash, even though he was permitted to deposit it in his own bank account, when they would not be willing to be bound on his promise to pay them if he had no cash, but only a promissory note, as his reliance for the means of performing his promise."

. In Mutual Reserve Fund Life Ass'n v. Simmons, 107 Fed. 418-424, 46 C. C. A. 393, 399, it is said:

"Aside from any statutory regulations, a life insurance corporation has a direct interest in maintaining the solvency of its agents, through whom large sums are often transmitted to or from it. It has, therefore, a direct interest in prohibiting them from involving themselves by incautious credits for amounts for which they (the agents) are responsible in cash, and from loading themselves with invaluable assets with reference to any sum for which they must account."

By the one method, which we will call the "first," the premium must be paid "in full in cash" and the policy must be delivered while the applicant is in good health. But the first part of the receipt shows that the agent is authorized to waive the full payment in cash and to accept in payment of the premium part cash and a note for the residue. Where the agent and the applicant adopt this, the first method, if the company issues the policy and same is delivered to the assured, it will be conclusively presumed, in the absence of fraud, that the requirement of full "cash" payment was waived, and that the policy was delivered during the good health of the applicant, the insurance will then be in full force and effect from the date of the policy. Grier v. Mutual Life Ins. Co., supra; Kendrick v. Ins. Co., 124 N. C. 315, 32 S. E. 728, 70 Am. St. Rep. 592. See Home Fire Ins. Co. v. Stancell, 94 Ark. 578, 127 S. W. 966; American Trust Co. v. Life Ins. Co. of Virginia, 173 N. C. 558, 92 S. E. 706.

By the other, the "second" method, there must be a full "cash" settlement of the premium with the application. If there is, and the company's medical director approves the completed application, then the insurance takes effect and becomes a completed contract as of the date of such approval. It will be observed that the word "cash" has the same signification, whether the "first" or "second" method be adopted, and there is

[8] Where an insurance agent has authority to solicit applications for insurance, and to conduct the negotiations on the part of the company in closing up an insurance contract, unless such agent's authority is limited as to the time and mode of payment of premiums, he may accept notes or cash or both. "When no special mode of payment is stip-no conflict between the provisions of the apulated for, any mode of payment, which is accepted without objection on the part of the insurers or their agent, will suffice." 2 May on Insurance, § 345; 1 Joyce on the Law of Insurance, 80 (a), p. 293, and cases cited in notes.

plication, the policy, and the receipt concerning the payment of the premium.

We are not confronted with any issue of waiver, or estoppel by course of conduct on the part of appellee, because there is no evidence upon which to predicate such issues. Under the first method above outlined, while the premium was paid, there was no delivery of the policy and hence no completed contract of insurance. Under the second meth

[9] Now, when the provisions of the application, the policy, and the receipt in re gard to the payment of premiums are considered, it is clear that two modes were speci-od, while there was evidence tending to prove tied for the payment of premiums. By the one method there is no completed contract of insurance until the premium is paid in cash in full, or by cash and note, and until the policy has been issued and delivered while the applicant is in good health. By the other method, the one adopted by the agent and the applicant in this case, the insurance took effect immediately upon the approval of the completed application by

that the completed application was approved by the appellee's medical director, there was no "cash" payment of the premium, and hence no completed contract. Therefore the appellee is not liable, either under the allegations of the original complaint or the complaint treated as amended to conform to the proof.

The judgment of the trial court so holding was correct; and it is affirmed.

(149 Ark. 270) form such duty or not, and also assumed the ARKANSAS SHORTLEAF LUMBER CO. v. risk of obvious defects. WILKINSON. (No. 56.)

(Supreme Court of Arkansas. June 20, 1921.) I. Trial 243-Instructions in servant's personal injury action held inconsistent and misleading.

In a servant's personal injury action, bottomed on master's alleged negligence in failing to have lumber properly, inspected, such duty devolving on another servant, and that he negligently failed to discharge that duty, resulting in a splinter hitting plaintiff's eye, where the master defended on the ground that it was plaintiff's duty to inspect the lumber himself, and the testimony warranted submitting the issues to the jury, and the court instructed that the jury should not single out any one instruction, but consider all together as the law of the case, there must be a reversal, where the whole charge was not harmonious and consistent, but calculated to mislead the jury.

2. Trial 253(4)-Instruction on master's duty held erroneous, because ignoring inspection by servant.

In a servant's action for injury to an eye from a splinter, alleged to be due to master's negligence in failing to inspect lumber to be handled by the servant, an instruction that it was the master's duty to protect the servant from danger while in performance of his duty, and if negligent in inspecting the lumber the master was liable, if such was the proximate cause of injury, was erroneous, because wholly ignoring the master's contention that it was the injured servant's duty to inspect the lumber himself.

3. Master and servant 291 (7)-Failure to instruct on assumption of risk held error.

In a ripsawyer's action for injuries by a flying splinter from a board, where there was evidence that it was the plaintiff's duty to inspect the lumber himself, it was error not to instruct as to such theory, and if the plaintiff's failure to inspect resulted in the injury he assumed the risk, and the master was not liable. 4. Trial 241-Instruction quoting statute, correct as abstract proposition of law, held erroneous, because without hypothetical statements showing application.

6. Master and servant 291 (12)-Instruction held erroneous in placing burden of proof on master.

In an action for injury to a ripsawyer, whose eye was struck by a splinter from defective lumber, an instruction placing the burden on defendant to show that the plaintiff did not know and appreciate the danger held erroneous; the proof showing that he was an experienced employee of mature years.

7. Master and servant 217 (29)-Risk of discoverable defect in lumber assumed, though another workman neglected duty to inspect.

If a ripsawyer, injured when a splinter from a defective board struck his eye, knew the. board was defective, or the defect was so obvious that with ordinary care he must have known it, he assumed the risk, even if another workman neglected his duty to inspect the board.

1

Appeal from Circuit Court, Grant County; W. H. Evans, Judge.

Action by B. G. Wilkinson against the Arkansas Shortleaf Lumber Company for personal injuries. Verdict and judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Danaher & Danaher, of Pine Bluff, for appellant.

T. N. Nall, of Sheridan, and Rowell & Alexander, of Pine Bluff, for appellee.

WOOD, J. The appellant is a Missouri corporation operating sawmills in the state of Arkansas. Appellee was in its employ in the capacity of a "ripsawyer." The appellee's duties required him to take from a table near by boards of lumber that had been placed thereon and to feed these boards to the ripsaw; that is, to push the boards against the saw, in order to rip them into narrow boards. When the saw thus passed through the boards, they were taken out by an employee at the other end, who was called the "tailer." The boards handled by the endless appellee were first conveyed on chains from the downstairs of the plant, and as they reached the second floor they were taken off the conveyors by a negro employee, called a "passer" or "puller," and were placed on a table to be handled by the appellee. it lee. On the 30th of March, 1920, about 2 o'clock p. m., the appellee had pushed a board to the saw, and was standing with another board ready to go through, when the saw clicked and a splinter flew out, striking the appellee in the left eye and severely injuring him.

In a servant's action against a master for personal injuries, an instruction which is a literal copy of Crawford & Moses' Dig. § 7144, is correct as an abstract proposition of law; but it was error to give it without hypothetical statements showing how it would be applicable to the facts developed, for thus given it was misleading, and tantamount to a peremptory instruction for the servant and in conflict with other instructions.

5. Master and servant 217 (7)-Risk of discoverable defects in lumber assumed.

If it was the duty of the injured ripsawyer to himself inspect the lumber, a defect in which caused injury to his eye when struck by a splinter, then he assumed the risk, whether he knew of the danger resulting from failure to per

The appellee brought this action against the appellant to recover damages for the injury, and he alleged that the injury was caused by the negligence of the agents and

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