(239 S.W.) lin her share, he conveyed her 80 acres, or about one-sixth of the 500-acre tract. When the share of Ben Parker was assigned and set off, it consisted of 1094 acres, more than his full share in acreage, but perhaps an amount in value equal to his share. Action by D. A. White against the Caddo River Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Tompkins, McRae & Tompkins, of Prescott, for appellant. Rountree & Coblentz and W. T. Kidd, all of Murfreesboro, for appellee. Considering the time at which the 40acre tract was conveyed to Rachael Moore, the small amount, its value, and character, being wild and no part of the improved or HUMPHREYS, J. Appellee instituted suit cultivated lands, the conclusion is almost ir- against appellant, a lumber corporation, in resistible that the conveyance was intended the Pike circuit court to recover damages in as a gift, and not as an advancement. The the sum of $8,000, on account of an alleged chancellor so found, and, after a very care-injury sustained to his hand while assisting ful analysis of the testimony, we are unable to say that the finding of the chancellor was contrary to the clear preponderance of the evidence. The decree is affirmed. other employés in unloading a long pole, which was on one of its flat cars, where it had served as a support for a house which appellant was moving. Two grounds of negligence were alleged in the amended complaint, as a basis for recovery, the first being that appellant, its agent and servant, negligently furnished appellee with a crooked skid pole, which was slick and unsafe; and the CADDO RIVER LUMBER CO. v. WHITE. second being that the pole was moved or (No. 281.) 2. Master and servant 286 (27)-Negligence in handling pole held for jury. Whether injuries to an employé's hand, while unloading a pole from a flat car, were caused by the negligent handling of the pole by his coemployés without notice that they were about to move it, held for the jury on conflicting evidence. 3. Damages 166(2)-Physician's testimony as to permanency of injury held admissible. In an action for injuries to plaintiff's hand, the court properly permitted a physician to testify that the injury was permanent, though there was also evidence that the condition resulted from former injuries, as it was not necessary for the physician to know which injury injured the hand before testifying concerning its condition at the trial. 4. Appeal and error ~1058(2)-Exclusion of coemployé's testimony as to impossibility of injury in manner alleged, held not prejudicial. In an action for injuries to an employé's hand while unloading a pole from a flat car, the court's refusal to allow a coemployé who was standing between the car and plaintiff, to testify that plaintiff did not and could not have reached under his arm and gotten his hand in position to be crushed between the pole and the car, was not prejudicial error, where he was permitted to testify as to his and plaintiff's position in such way that the jury could draw a correct conclusion. shoved without notice or warning to appellee when he was assisting in moving the same, which caused it to fall upon and break two bones in his hand and otherwise injure it. Appellant filed an answer denying the allegations of negligence and injury, and, by way of further defense, pleading assumed risk and contributory negligence on the part of appellee. The cause was submitted to a jury upon the pleadings, evidence, and instructions of the court, which resulted in a verdict and judgment in favor of appellee in the sum of $2,500, from which an appeal has been duly prosecuted to this court. The evidence, in substance, reflected that appellant was engaged in moving a house from one point to another on a flat car; that the house, being wider than the car, was supported by two skid poles, about 16 feet long and 8 or 10 inches in diameter at the butt end, laying across the car; that the skid poles were pine; that after the house was unloaded appellant's foreman directed appellee and others to unload the poles; that the skid pole, which appellee testified fell upon and injured his hand, was crooked, partially disbarked, and slick, due to a rain which fell during the afternoon; that appellee's hand had been twice injured before, once in 1914 when a cross-tie fell upon it, breaking one bone and leaving a knot on the back part of the hand, and again in 1920, when a large rock fell upon it, causing him to cease work for a time. Appellee testified that, in removing the pole, he was standing against the car on the left side, and that the man on top gave the pole a sudden jerk, which turned it over and mashed his hand between the pole and the edge of the car; that two of his fingers were broken, which stiffened and renAppeal from Circuit Court, Pike County; dered them useless; that the injury caused Jas. S. Steel, Judge. him great pain and suffering; that the in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes juries received to his hand theretofore did | resulted to appellee on account of the neglinot seriously injure his hand; that the injury received to his hand by the falling pole rendered it useless for purposes of labor. In the progress of the trial, T. F. Alford, a practicing physician, over the objection of appellant, testified that the injury was permanent on account of lack of elasticity in the muscles and tension in the ligaments that supply the broken fingers. Appellant objected to the evidence of the physician concerning the permanency of the injury to the hand, because it might have been produced by the injuries received in 1914 and 1920. gent and careless handling of the pole by appellee's coemployés, without notice that the coemployés were about to move or shove the pole. [3] Appellant next insists that the court erred in permitting Dr. Alford to testify that the injury to plaintiff's hand was permanent. The appellant's insistence is that the effect of this testimony was to allow appellee to recover for the condition of the hand resulting from the fall of the cross-tie in 1914 and the rock in 1920 upon his hand, as well as the injury inflicted by the pole falling upon it in The evidence adduced by appellant tended 1921. We do not think so. There was evito show that appellee's hand was not crushed dence tending to show that the first two inby the pole, but that the condition of his juries received were slight and left the hand hand was due to the injuries received in 1914 unimpaired. There was evidence, however, and 1920. Some of appellee's coemployés to the contrary. It therefore became a distestified that appellee assisted in removing puted question of fact for the jury to deterthe pole without making any complaint of mine which injury stiffened and deformed apinjury or exclamation during the time it was pellee's hand. The court specifically instructbeing removed; that he continued to worked the jury that the burden was upon the apthat day and part of the next day without making complaint. Nat Lawrence testified that he assisted in moving the crooked pole and was standing against the car; that appellee was on his right side, away from the car. At this point appellant offered to prove that, owing to the position of Nat Lawrence, appellee could not have reached the arm of witness and gotten hold of the pole so that it could fall on or mash his hand. This evidence was excluded, over the objection and exception of appellant. [1] The court sent the cause to the jury on the theory that appellee might recover if the evidence supported either or both allegations of negligence set forth in the complaint. In other words, the court authorized a recovery by appellee if the evidence showed that the pole was crooked and slick. This was error. The slick and crooked condition of the pole was necessarily patent to any one, and appellee, therefore, assumed the risk incident to handling a slick, crooked pole. This court said, in the case of C., R. I. & P. R. Co. v. Grubbs, 97 Ark. 486, 134 S. W. 636: * * * * * "The plaintiff knew that the effect of creosote upon cross-ties was to make them slick and therefore liable to slip. * Their condition was patent to him. It was obvious, therefore, that these ties were liable to slip whenever any force or weight was applied to them. The risk of injury which might result by reason of the ties slipping or moving was obvious, and, when plaintiff undertook the service of straightening them out, he assumed the risk. A master is not bound to warn the servant as to dangers which are obvious and patent to him." [2] There is a dispute in the evidence as to whether appellee was injured through the negligent and careless handling of the pole by appellee's coemployés. The cause, therefore, should have been submitted to the jury upon the sole question of whether the injury pellee to show the nature and extent of the injury he received on June 23, 1921, and that he could not recover for conditions produced by prior injuries. It was not necessary for Dr. Alford himself to know or testify which injury stiffened and deformed appellee's hand before testifying concerning its condition at the time of the trial. It was perfectly proper to show the stiffened and deformed condition of appellee's hand at the time of the trial, by a physician, and to show by other witnesses the cause that produced the condition thereof. The physician himself may not have known the immediate cause of the injury to the hand, but, on account of his expert knowledge, was peculiarly qualified to explain the nature and extent of the injury. [4] Appellant's last insistence for reversal is that the court erred in refusing to allow Nat Lawrence to testify that appellee did not reach, and could not have reached, under his (Lawrence's) arm and gotten his hand in position to be crushed between the pole and the edge of the car. We do not think any prejudice resulted to appellant on account of the exclusion of this evidence, as Lawrence was permitted to testify concerning the position of appellee and himself with reference to the car and the pole in such way that the jury itself could draw a correct conclusion as to whether appellee was near enough to reach the pole and receive the injury in the manner alleged. It would not, perhaps, have been error to admit the evidence upon the theory that it was a conclusion of fact drawn from appearances, which could not otherwise be clearly produced to the jury. Fort v. State, 52 Ark. 180, 11 S. W. 959, 20 Am. St. Rep. 163. For the error indicated, the judgment is reversed, and the cause remanded for a new trial. (239 S.W.) NATIONAL LIFE INS. CO. OF MONTPEL- (Court of Appeals of Kentucky. March 24, 1. Insurance 446-Under policy exempting from liability for suicide while insane, in surer is liable only if insured was so devoid of mind that he did not intend to commit act resulting in death. Parties to a life insurance contract may agree that liability will not attach if death is produced by suicide while insane, in which case the company in the event of suicide is not liable unless insured was so devoid of mind that he did not know what he was doing, and did not intend to commit the act which resulted in his death, and the mere fact that it was committed as a result of an irresistible impulse or an insane impulse is not sufficient to render the company liable. He On the morning of December 26, 1914, less than nine months after the date of the policies, the insured died from a self-administered hypodermic injection of morphine. had executed his will, in which his wife and plaintiff below, Inez Wall Watson, was appointed as executrix, and she qualified after the will was probated and took the necessary steps to collect the policies, but the company declined to pay any part of either of them, except the premiums paid, upon the ground that the quoted clause from the applications relieved it therefrom. At the trial there was a verdict and judgment in favor of the plaintiff for the full amount sued for, and this appeal seeks a reversal thereof, chiefly upon the ground that the court misinstructed the jury by attaching to instruction No. 1 this clause: "Or if the jury believe from the evidence that the said decedent was so insane that at the 2. Evidence 501 (3)-Refusal to permit wif- time of his act he was unable to govern his ness giving his opinion as to insanity of in-actions by reason of some insane impulse, the sured to detail conversation with insured as jury should find for the plaintiff." a basis for opinion held not error. The first part of that instruction told the jury that In action on life policy involving issue of whether insured was insane when he committed suicide, refusal to permit witness who If they believed the insured "came to his had been called to give his opinion as to in- death from the effects of an overdose of morsured's mental condition to detail a conversa-phine injected into his arm by himself, without tion with the insured as the basis for such opinion held proper, where witness showed sufficient acquaintance from association with deceased to form a correct opinion without detailing facts upon which opinion was based, and the conversation related to delicate family affairs. suicidal intent; or if his death was so caused and the jury believe at the time he so injected morphine into his arm he was so insane that he did not know he was taking his life or that his act in so doing would probably result in his death, the plaintiff." the jury should find for There was sufficient evidence in the case to support the instruction as last quoted, and Appeal from Circuit Court, Fayette County. Action by Inez Wall Watson, executrix of the question presented is whether the court W. G. Watson, against the National Life erred in incorporating in it the "insane imInsurance Company of Montpelier, Vt. Judgpulse" clause. Our opinion is that it was erment for plaintiff, and defendant appeals.ror to do so, which we will now proceed to Reversed, with directions to grant a new trial. William Marshall Bullitt and Bruce & Bullitt, all of Louisville, and Hunt & Bush, of Lexington, for appellant. demonstrate. The history of the defense of suicide by the insured under a life policy is (a) that if the act is committed while the insured is sane it will be a defense to a recovery on the Hager & Stewart, of Ashland, and Allen & policy, although there is no stipulation in it Duncan, of Lexington, for appellee. THOMAS, J. On April 3, 1914, the appellant and defendant below, National Life Insurance Company, of Montpelier, Vt., issued upon the life of Dr. W. G. Watson of Huntington, W. Va., two policies, one for $2,000 and the other for $3,000, and each was made payable to his estate. In the applications which the insured signed to procure the policies and which were attached to them there was this stipulation: "If, within one year from the date of the policy, I shall suicide or destroy myself, sane or insane, the policy shall be null and void and the company discharged from liability except for the premium paid." against suicide. Mooney v. Ancient Order United Workmen, etc., 114 Ky. 950, 72 S. W. 288, 24 Ky. Law Rep. 1787; Hunziker v. Supreme Lodge, etc., 117 Ky. 418, 78 S. W. 201, 25 Ky. Law Rep. 1510, and Ritter v. Mutual Life Insurance Co., 169 U. S. 139, 18 Sup. Ct. 300, 42 L. Ed. 693. If, however, the self-destruction was inflicted when the insured was insane, the defense of suicide would not prevail. Notwithstanding that condition of the law, insurance companies began to insert in their policies (b) a stipulation against suicide without the qualifying words "sane or insane" which, it was held, did not substantially change the rights of the parties, since the act of self-destruction without a stipulation containing those words For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes would constitute a defense only when the insured was sane, and that the stipulation against suicide simpliciter referred only to the act of a sane mind. St. Louis Mutual Life Insurance Co. v. Graves, 6 Bush, 268; Mutual Benefit Life Insurance Co. v. Daviess' Executrix, 87 Ky. 541, 9 S. W. 812, 10 Ky. Law. Rep. 577; Manhattan Life Insurance Co. v. Beard, 112 Ky. 455, 66 S. W. 35, 23 Ky. Law Rep. 1747; Connecticut Life Insurance Co. v. Akens, 150 U. S. 468, 14 Sup. Ct. 155, 37 L. Ed. 1148; and 14 R. C. L. pages 1228-1231, inclusive. In order to avoid the construction of the courts in classifications (a) and (b) above, insurance companies began to insert in their policies stipulations against "suicide, sane or insane," and many courts, including this one, have construed such clauses to mean that the company is excused from payment where the insured takes his life in all cases, except where he was so devoid of mind at the time that he did not realize or contemplate the nature of his act and the physical consequences thereof. In other words, that he was so devoid of mind that he did not know what he was doing, and did not intend to commit the act which resulted in his death, and with the exception of some dictum (hereafter to be noted) the above has been the consistent holding of this court from the time the "sane or insane" clause was first presented for consideration, as will be seen from the Daviess and Beard Cases, supra, and those of Masonic Life Ass'n v. Pollard, 121 Ky. 349, 89 S. W. 219, 28 Ky. Law Rep. 301, 123 Am. St. Rep. 198; Metropolitan Life Insurance Co. v. Thomas (Ky.) 106 S. W. 1175, 32 Ky. Law Rep. 770; Modern Woodmen of the World v. Neeley (Ky.) 111 S. W. 282, 33 Ky. Law Rep. 758;; Inter-Southern Life Insurance Co. v. Boyd (Ky.) 124 S. W. 333 (not elsewhere reported); Bankers' Fraternal Union, etc., v. Donahue (Ky.) 109 S. W. 878, 33 Ky. Law Rep. 196; Vicars v. Ætna Life Insurance Co., 158 Ky. 1, 164 S. W. 106; Sovereign Camp, Woodmen of the World, v. Landrum, 158 Ky. 841, 166 S. W. 598; Sovereign Camp, Woodmen of the World, v. Valentine, 173 Ky. 182, 190 S. W. 712; Security Life Insurance Co. of America v. Duncan, 184 Ky. 443, 211 S. W. 758; and Columbian National Life Insurance Co. v. Wood, 193 Ky. 395, 236 S. W. 562. In the last-cited case the identical question raised by this appeal was before this court. The court therein instructed the jury to find for plaintiff if it believed from the evidence that At the time the insured shot himself, if he did so, "he was so insane that he did not know that he was taking his life, or if the jury should believe from the evidence that his act of selfdestruction was the result of an irresistible impulse over which his will had no control, and that such act of self-destruction was not an act of his volition." On appeal the company insisted that the italicized portion of the instruction was erroneous, and in reply thereto the opinion quoted it and said: "This much of the instruction must be conceded to be erroneous. The trial court should not have so instructed the jury, and, had the quoted words been omitted from instruction No. 1, the instruction would not have been subject to more than passing criticism." But, it is insisted by appellee's counsel that this court in the cases of Sovereign Camp, Woodmen of the World v. Ethridge, 166 Ky. 795, 179 S. W. 1022, and Fidelity Mutual Life Insurance Co. v. Cochran, 187 Ky. 430, 219 S. W. 172, approved the above italicized clause as embodying the correct rule in such cases, and that under those opinions the stipulation against a suicide "sane or insane" is no defense if the act of self-destruction was the result of an irresistible impulse produced by insanity, though an intention to commit it existed. It must be admitted that those opinions, on their face, but we have examined the record in each of possess the comprehensiveness contended for, them, and find that the statements therein enlarging the rule, as claimed by appellee's counsel, were entirely unauthorized, and are pure dictum. The instruction complained of in the Ethridge Case was somewhat confused, but it was qualified with the statement that The company was liable if the insured, at the time of taking his life, "did not have sufficient will power to govern his actions by reason of some insane impulse, the result of mental unsoundness, that caused him to take his life and rendered him incapable of realizing the consequences of his act." It might have been held that the italicized portion of the instruction relieved the preceding objectionable features of the quotation from it, and thus rendered it unnecessary for the broad statement contained in the opinion upon which counsel for appellee relies, since the mental unsoundness was required to be such as "rendered him [insured] incapable of realizing the consequences of his act." But, whether so or not, that opinion, as expressed on its face, is out of line with all preceding cases from this court, as well as succeeding ones, except the Cochran Case, which itself has been succeeded by others, especially the Wood Case, repudiating the contention now made. The Cochran Case followed the Ethridge opinion, and an examination of the record shows that neither in the evidence nor in the instructions was the question raised as to the liability of the company if the insured committed suicide under the influence of an irresistible impulse. None of the witnesses was asked any such question, nor did the single instruction given in the case contain any such submission, and the statements in (239 S.W.) the opinion upon which reliance is now made were the result of an oversight, and are likewise dictum. In the case of Jefferson v. New York Life Insurance Co., 151 Ky. 609, 152 S. W. 780, it is said that "There is nothing peculiarly sacred about a contract of insurance, which places it upon a plane above, or different from, that upon which other contracts rest." This is but saying that parties to an insurance contract may insert therein any valid stipulation that may be agreed upon and it will be enforced by the courts, although it is the rule to construe them, when ambiguous, most strongly against the insurer. [1] It is therefore competent for the parties to such a contract to agree that liability will not attach if death is produced by suicide, although the insured be insane when it is committed. The theory upon which the plaintiff may recover, if the insured did not know at the time the physical consequences of his act, as held in the cases supra from this court, rests upon the idea that he did not in law commit it. If the further circumscribing rule is adopted, as contended for, and as the trial court did in this case, there could be no act of the insured which would | facts upon which his opinion was based; and (2) the conversation related to delicate family affairs, and defendant was not compelled to inquire into it in order to obtain the opinion of the witness. For the reasons indicated, the judgment is reversed, with directions to grant a new trial and for proceedings consistent herewith. VAUGHN v. SHADY GROVE MILLING CO. (Court of Appeals of Kentucky. March 24, 1922.) 1. Sales 442(6, 7)—Measure of damages for breach of warranty of flour mill stated. For breach of warranty of a flour mill, the correct measure of damages was the difference between the mill in the condition in which delivered and its value as warranted, and the buyer could not recover damages incidentally bran, and expenses in hiring experts to correct suffered by reason of the mill making too much defects in the mill, and in buying new machinery to get the mill to operate properly. 2. Sales 428-Buyer could counterclaim for breach of warranty of mill sold. could not rescind. Where the buyer of a flour mill did not offer to return it for several weeks after discovering its defective condition, he could not re scind the sale. 4. Appeal and error 1033(5)-Party may not complain of error to his advantage. In an action by the seller of a flour mill relieve the company from payment when for the purchase price, the buyer could counterclaim for damages for breach of warranty. death was produced by suicide resulting from insanity, since a self-destruction com- 3. Sales 124-Buyer not offering to return mitted when it was not intended and one committed under an irresistible impulse together include all the elements and cover the entire field of insanity, and the stipulation against such suicides would be reduced to nothing, and, as heretofore shown, the company would occupy no better attitude than if no stipulation with reference to suicide had been made; for, as we have seen, suicide while sane is a defense to a recovery on the policy, though it is entirely silent on the subject. We do not feel that we should extend the doctrine any further than is contained in the cases supra, and the dictum in the Ethridge and Cochran Cases should not be followed. Upon another trial the complained of portion of instruction No. 1 should be omitted therefrom, and another instruction should be given, embodying the idea contained in No. 6, offered by defendant. [2] Complaint is also made of the refusal of the court to permit F. H. Yates, a witness introduced by defendant, to detail a certain conversation with the deceased upon which the opinion of the witness as to his mental condition was partially based. We do not think the court erred in its ruling for two reasons: (1) The witness was introduced by defendant, and he showed sufficient acquaintance from association with the deceased to form a correct opinion without detailing the A party may not complain of error in an instruction permitting recovery of damages on his counterclaim for matters which were incidental and too remote, since the error was in his favor. Appeal from Circuit Court, Webster County. Action by the Shady Grove Milling Company against Jack Vaughn. From judgment for plaintiff, and for defendant on a counterclaim, defendant appeals. Affirmed. Worsham & Hunt, of Henderson, and Bourland & Blackwell, of Dixon, for appellant. Bennett & Withers, of Dixon, for appellee. SAMPSON, J. The Shady Grove Milling Company, a partnership composed of Towery, McConnell, and Hubbard, sold a Midget flouring mill to appellant, Jack Vaughn, for $1,800, of which sum $800 was paid, and two notes, for $500 each, were executed by Vaughn to the company for the balance of the purchase price. When the first note be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |