| Ark. | Mar 4, 1905
(after stating the facts.) The Arkadelphia Lumber Company was a corporation, and had no authority to insure; but if it insured as alleged, received the consideration therefor, and appellee performed his part of the contract, as the jury evidently found, it is estopped from pleading that such a contract was “ultra vires”. Minneapolis Fire & Marine Mutual Insurance Co. v. Norman, ante, p. 190, and cases cited.
The first instruction given at the request of the appellee is exceedingly defective. According to it, unexplained by other instructions and circumstances, the jury was required to return a verdict in favor of the plaintiff, if they found that he was in the employ of the defendant on the 23d day of August, 1900, and was accidentally injured and disabled, and could not work for twelve months. But the first and third instructions given at the instance of the appellant clearly show that the court did not intend to so instruct, and virtually told the jury that they should not return a verdict in favor of the appellee unless they found from “a preponderance of the evidence that the defendant engaged, for a consideration paid to it as an insurer, to insure the plaintiff against accidents as stated in the complaint.” The whole case, the pleadings, the evidence and the instructions of the court, it seems to us, were calculated to impress the mind of an average person with the thought that the appellee could not recover unless the appellant insured against accidents as alleged in the complaint. Did the Arkadelphia Lumber Company insure Posey against accidents? This was the prominent and controlling issue in the case. Upon that the result depended. The pleadings, evidence and instructions so presented it. We do not think that the instruction in question was prejudicial.
The evidence, though unsatisfactory to us, is sufficient to sustain the verdict of the jury.
The court is of the opinion that the trial court committed no reversible error in overruling the motion for a new trial, for the following reasons:
(1.) The newly-discovered evidence was sufficient. The physician who attended appellee, and saw his leg soon after the accident, testified that when he first saw him he had something on his right leg that looked like an ulcer — “a little place about the size of a thumb nail, something like a boil.” That “there was nothing to indicate an accident;” that it was produced perhaps by “some condition of the blood; it was an ulcer; there was no evidence of a wound or hurt.” So much of the newly-discovered evidence as was material was cumulative to this.
(2). Appellant was not as diligent as it might have been. It should have investigated the alleged accident before the trial. The two newly-discovered witnesses were fellow-servants of appellee, and it is reasonable to presume that they might have given some information in that respect, if the investigation had been made. Piad it done so, it is highly probable the newly-discovered evidence would have been obtained at the trial.
(3.) The motion for a new trial addressed itself to the sound discretion of the trial court. The affidavits as to the newly-discovered evidence were conflicting. The affidavits of Whitted and Anderson were controverted. A question of fact was thereby presented which was in the province of the court to decide.
The writer is, however, for reasons unnecessary to state, of the opinion that a new trial ought to have been granted on the ground of the newly-discovered evidence.
Judgment affirmed.