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plus allotment. To appoint a receiver to take charge of the surplus allotment and lease the same and collect the rents and profits would be to deprive the defendant of his right to the possession thereof and subject such allotment to a personal claim or demand against him from which the act of Congress exempts it.

This seems to be a hard case, but the court below and this court are equally unable to afford the plaintiff any relief as against the allotted lands of the defendant.

The judgment of the trial court should therefore be affirmed.

By the Court: It is so ordered.

KANSAS CITY LIFE INS. CO. v. LEEDY. No. 7740-Opinion Filed Jan. 16, 1917. (162 Pac. 760.)

Insurance-Life Policy-Construction.

The provision in an insurance policy granting to the insured a grace of 30 days within which to pay all premiums except the first, and stipulating that said insurance shall remain in force during said time, held not to allow 30 days of grace after the maturity of a note executed by the insured to the company for a premium due at the date thereof, where the policy provides that upon a failure to pay such premium note when due the policy will become null and void.

(Syllabus by Hooker, C.)

Error from District Court, Ellis County; T. P. Clay, Judge.

Action by Clarence B. Leedy against the Kansas City Life Insurance Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed.

T. J. McComb and Stephen Treadwell, for plaintiff in error.

Chas. Swindall and C. B. Leedy, for defendant in error.

Opinion by HOOKER, C. In consideration of an annual premium of $118.44 payable on the 8th day of March of each year the Kansas City Life Insurance Company on the 8th day of March, 1909, issued to Clarence B. Leedy a twenty-pay life participating policy, and the said Clarence B. Leedy on the 8th day of March, 1914, and for every year thereafter until 1914, paid the annual premium provided by said policy.

It appears from an examination of the record here that when the premiun upon this

policy matured on March 8, 1914, the same was not paid when due, but a note was executed by the said Clarence B. Leedy to the company therefor due on September 8, 1914. When said note matured the same was not paid, but on or about the 28th day of September, 1914, the said Clarence B. Leedy tendered to the company the full amount of said note and interest, and demanded that the company accept said money and cancel said note and apply the same as the premium upon said policy. This the company refused to do, unless the defendant in error would make a written application accompanying the same with evidence of insurability satisfactory to the company, together with the payment of the premium, with interest thereon, as provided by the policy. This the said Leedy refused to do, and he thereupon instituted suit to compel it to comply with his demands as stated above, contending that by a clause of the policy which is as follows:

"Grace in Payment of Premiums.-A grace of thirty days, during which the insurance will remain in full force, will be allowed in the payment of all premiums except the first." -he was entitled to 30 days of grace after the maturity of the note given by him in satisfaction of the premium in which to pay the same, while the company asserted that under section 2 of the policy, which is as follows:

"Upon failure to pay a premium on or before the date when due, or upon failure to pay premium note when due, this policy will become null and void without action or a po tice by the company, and all rights shall be forfeited to the company, except as to the options herein stated"

-when said note matured and was not paid, by the provision of the policy it became null and void without action or notice by the company, and all rights thereunder were forfeited to the company, and that this provision of the policy providing for 30 days of grace applied only to the premium, and not to any note executed by the insured in satisfaction of the premium. The premium upon this policy became due March 8th of each year, and it is evident by the terms of the policy that the insured had 30 days of grace in which to pay this premium, and it is asserted here by the company that when the insured obtained an extension in the time of the payment of this premium by executing his note to September 8th thereafter he obtained not only 30 days of grace provided by the policy, but a longer time than the policy itself contemplates, and that to extend to him now an additional 30 days of grace after the maturity of the note would be giving to

him more days of grace than the policy or the contract of the parties contemplated.

It will be observed that section 2 of the policy, in dealing with the question of forfeiture, designates the times when the forfeiture will take place: First, upon a failure to pay a premium on or before the date when due; second, upon failure to pay any premium note when due. In other words, this provision of the contract of insurance recognizes a distinction between the premium and the premium note, and this provision of the contract deals with these two items as separate and distinct obligations. With this apparent distinction confronting us, are we justified in saying that the subsequent provision of the policy whereby a grant of 30 days during which the insurance remained in full force was allowed in the payment of the notes executed in lieu of the premium? We are aware of that rule of law that, where any ambiguity exists in an insurance contract, the construction most favorable to the insured should be adopted. With this wise and salutary principle of the law we have no quarrel, but we do not think it applicable here. As we view the provision of this policy providing for grace in payment of premium, the same is applicable only to the premiums, and not to any note executed by the insured where by the terms the day of payment of the premium was extended for a longer time than the 30 days of grace provided for in the policy.

There is no question here as to the right of an insurance company under a given state of facts to forfeit a policy for a failure to pay the premium. The courts uniformly uphold this provision of the law, and this court, in the case of the Travelers' Insurance Company v. Mercer, 32 Okla. 503, 122 Pac. 134, said:

"A provision in a contract of insurance that provides that where a note given for a premium is not paid when due, the failure to pay shall work a forfeiture of the contract is a valid one, and will be enforced."

It must be admitted here that, unless the provision of the policy allowing grace in payment of premiums may be extended so as to apply to premium notes, the company had the right to forfeit the policy in question. This question has been before the courts, and has been decided as follows:

The Supreme Court of Georgia in Bank of Commerce v. New York Life Insurance Company, 125 Ga. 552, 54 S. E. 643, said:

"The policy of insurance provides that one month's grace shall be allowed for the mayment of premiums after the date of their

maturity. When the second annual premium became due, the insured, being unable to pay the full amount, paid $21 in cash and gave his note for the balance, due five months after date. The note was not paid when due, but a tender of the amount was made within thirty days after the maturity of the note. It is the contention of the plaintiff that the stipulation for one month's grace in the payment of premiums, contained in the policy, applied to the payment of this note. We think this contention is clearly contrary to the intent of the policy of the note. The insured was not only given his one month's grace, but really an extension of five months for a portion of his premium, and there was no stipulation that he should be entitled to any further extension of time. The note specifically provided that it shall be paid on the date of maturity, without grace, and the clause 'except as otherwise provided in the policy itself does not relieve it of this condition. The policy and the note should be construed together, and it would be a violent construction which would hold that when the company, in lieu of the one month's grace. accepted the note without other consideration and extended the giace to five months, it further bound itself to an additional month's grace, in plain contradiction to the very terms of the note itself."

Also in Sexton v. Greensboro Life Insurance Company, 157 N. C. 142, 72 S. E. 863, the Supreme Court of North Carolina held that:

"Where a note for a part of an annual premium for a policy stipulated that, should the note not be paid at maturity, the policy should become void without notice, a failure to pay at maturity worked a forfeiture of the policy; the note being merely an extension of the time of payment."

In Reed v. Bankers' Reserve Life Insurance Company (C. C.) 192 Fed. 408, the Circuit Court for the Eastern District of Washington said:

"A provision of a life insurance policy giving the insured a month of grace for payment of each annual premium, after it becomes due by the terms of the policy, does not apply to notes given for a past-due premium, after the month of grace for payment of such premium has expired."

In Stewart v. Home Life Insurance Company, 146 App. Div. 709, 131 N. Y. Supp. 504, the Supreme Court of New York said:

"A policy provided that grace of one month would be allowed in the payment of premiums, and that if any premium due was not paid within the month of grace the policy should be void. ** An insurer mailed due notice of a semi-annual premium falling due February 27th, and on the last day of grace, March 27th, accepted one-fifth of the premium, and on April 27th the same amount and extended payment of the balance until May 27th, at which time, it being still un

paid, the insurer treated the policy as lapsed. Held, that the extensions, which were upon condition that the balance should be paid, 'did not relieve the insured from the forfeiture or entitle him to any further grace."

In the case of Schmedding v. Northern Assur. Company, 170 Mich. 528, 136 N. W. 361, it is said:

"Where an insured, upon giving his notes for his annual premium when it became due, was granted an extension of several months, and then failed to pay the notes at maturity, his policy lapsed and became void at once; Public Acts 1907, No. 187, sec. 1, which requires that every insurance policy shall contain a provision giving the insured one month's grace for the payment of every premium after the first year, and the policy, which conformed to this statute, not entitling the insured to two periods of grace."

And in the body of the opinion of this case i is said:

"We are of opinion that he is in no position to complain that he did not have all the grace which is contemplated either by the statute or the contract of insurance. We do not think that he was entitled to two periods of grace. We do not think there is anything in the statute or contract of insurance that prohibits the respondent from giving the extended grace that was granted to relator in the manner it was in this case, so long as the policy was kept in full force for its full amount during the grace period. Certainly the relator is in no position to com plain of it. To hold otherwise would be to punish the respondent for its apparent attempt at fairness in extending the grace.”

In the case of Sharpe v. New York Life Insurance Company, 5 Neb. (Unof.) 278, 98 N. W. 69, the Supreme Court of Nebraska said:

"There is another reason under the facts disclosed by this record why the plaintiff cannot recover. As we have heretofore stated, when the second annual premium became due the assured could not pay it, and was compelled to ask the company for further time to meet this obligation, so the note which we have stated above was given. By the terms of this note the time for the payment * * * was extended to a day certain; and it was provided by the mutual agreement of the insurance company and the assured that in case the note was not paid at maturity all claims to further insurance, and all benefits whatever which full payment in cash of the premium would have secured should become immediately void and be forfeited to the company, except as otherwise provided in the policy itself. The note was never paid, and it, together with the policy, was canceled for nonpayment. From that time to the present all the acts of the defendant have been consistent with its claim of a forfeiture of the insurance. The agreement contained in this note was made solely for the benefit of the assured. Its terms

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The court said in the body of the opinion:

"It is argued that taking the first note had the effect of designating a new period from which the default in payment of the premium should afterwards be measured, and that, as the premium only became due under the final arrangement on the 16th of August, 1877, the plaintiff by the policy had the right to a paid-up policy within 30 days after that time. This reasoning wholly ignores the condition contained in the note and renders the language thereof meaningless. The note not only extended the time of payment of the premium, but it distinctly stated, not that failure to pay at maturity should be treated as a default ** *but the language used was entirely explicit and free from doubt, making an unambiguous agreement to absolutely and immediately forfeit all right to further insurance if the note were not paid at maturity. *** If language as plain and unambiguous as this is not only to be twisted out of its natural meaning, but is to be wholly ignored by courts of justice, it will be useless in the future for companies to make any efforts to bind policy holders to perform their contracts. The use of language is to express ideas, and writing is resorted to in order to furnish conclusive proof of what language was used. Being certain of the language used, and the case being free from fraud or mistake, if such language is plain and susceptible of but one meaning, that meaning. even in cases of contracts regarding life insurance, must control, though a forfeiture should be the result."

The Court of Appeals in Kentucky in New York Life Insurance Company v. Meinken's Adm'r, 80 S. W. 175, held:

"A life policy provided that, if any annual premium should not be paid as required, the policy would be continued for its full amount up to a specified date, or that, if any such premium should not be paid, the policy would be indorsed for a reduced amount of paid-up insurance, provided demand should be made. with surrender of policy. within six months after the time when the premium should have been paid. On the date when an annual premium was due insured gave a note for the premium, and, after the expiration of the period within which the full amount of insurance was continued in force, he died; the note not having been paid, and no demand having been made for paid-up insurance, Held, in an action on the policy, that a judgment for the full amount thereof, on the theory that the company was indebted to the insured for the paid-up insurance at the date of the default, and that it should have applied the insurance on the note, was erroneous, since, having failed to demand the paid-up insurance, the policy was in force for

a definite period, after which it was forfeited for nonpayment of the note."

In view of the authorities above quoted, we are of the opinion that the defendant in error was not entitled to 30 days of grace within which to pay the note executed by him for the premium upon his policy, and that by the terms of the policy itself, the note not having been paid at maturity, the company had the right to forfeit the policy, and that, inasmuch as the defendant did not avail himself of the opportunity given by the policy to have the same reinstated, he is not entitled to recover in this action, and the judgment of the lower court is therefore reversed.

By the Court: It is so ordered.

CHICAGO, R. I. & P. R. CO. v. WRIGHT.
No. 8054-Opinion Filed Dec. 5, 1916.
Rehearing Denied Jan. 9, 1917.
(161 Pac. 1070.)

1. Negligence Attractive Nuisance - Jury Question.

A child nine years of age was injured by hot water, steam, and hot mud emitted from a metal pipe, said pipe being three and onehalf or four inches in diameter, attached to a stationary engine and extending out of the building in which it is located, and the end of the pipe was unguarded and unprotected. Whether the premises whereon the same is located were sufficiently attractive to allure children to the danger, and whether the pipe, in the position and manner in which it was left, was dangerous, and whether left in a dangerous condition in an attractive place known to be frequented by children, and whether the situation was such as to suggest to the railway company the probability of accident, and whether the defendant was negligent, presented questions of fact for the consideration of the jury.

2. Same-Contributory Negligence-Children -Instructions.

It is not error to submit to the jury the question of contributory negligence permitting the jury to take into consideration the age, experience, and maturity of the child, or that a child under seven years of age is not guilty of contributory negligence, or that a child between seven and 14 years of age is not presumed to be guilty of more than technical trespass as affecting the question of duty of the defendant in respect to the dangerous condition of the premises.

(Syllabus by Brunson, C.)

Error from District Court, Jefferson County; Cham Jones, Judge.

Action by Ella Wright, next friend of Herbert George, a minor, against the Chicago, Rock Island & Pacific Railway Company, for damages. There was judgment for

plaintiff, and defendant brings error. Affirmed.

C. O. Blake, W. H. Moore, R. J. Roberts, K W. Shartel, and Guy Green, for plaintiff in error.

Bridges & Vertrees, for defendant in error.

Opinion by BRUNSON, C. This suit was instituted on the 1st day of July, 1915. It was tried on the 20th day of October, 1915, there was judgment for the plaintiff, the defendant filed a motion for a new trial, which was overruled and exceptions saved, and the case is now before us on appeal. Before the suit was tried, the defendant in error, upon first obtaining permission of the court, amended his petition to make it read "Herbert George, by next friend, Ella Wright, plaintiff."

It is alleged substantially that Ella Wright is the mother of Herbert George, a minor, of the age of nine years; that they reside in Jefferson county, Okla.; that the defendant is a duly organized and chartered corporation engaged in the business of common carrier of freight and passengers for hire, and that it operates one of its lines through Jefferson county, Okla.; that the company, for the purpose of carrying on its business at the town of Waurika, maintains and operates a roundhouse, and in connection with said roundhouse maintains and operates a stationary engine, and has connected therewith an iron pipe about three and one-half inches in diameter, and 30 or 40 feet long, which extends out of the roundhouse on the north side thereof, and passes out of the same at an elevation of about two feet from the surface of the earth, and said engine is used for cleaning out engines or boilers, and when in such use there is, emitted from said pipe boiling water, steam, and hot mud, and that said water, steam, and hot mud are emitted from said pipe without any protection or hood over the same, and that said hot water, steam, and hot mud are thrown upon the ground for a distance of 30 or 40 feet, at which place there has been formed, by reason thereof, a small pond; that said roundhouse, engine, and pipe so used for cleaning out said engines or boilers have been operated by the railroad company for the past seven years, and cinders piled around said pipe and the pond or lake so formed at the end of said pipe was attractive to children as a playground, and was so used by them. All of which fact was well known to the agents. servants, and employes of the railway company, and that said company has never taken any steps to hood said pipe, or in any wise protect the public from the danger thereof.

or to prevent children from playing thereat, and upon its premises.

It is further alleged that on the 4th day or March, 1915, said Herbert George, together with two other boys of about the same age, were playing at and near the roundhouse and near the end of said pipe, and when immediately in front of the pipe, an agent, servant, or employe of said company, without notice or warning, 'turned boiling water, steam, and hot mud upon said Herbert George, by reason whereof he was severely scalded and burned, and that by reason of said injuries he was confined to his bed and room for over three weeks; that he suffered intense and excruciating pain, both in body and mind, and that as a result of said burns, it has left deep and lasting scars upon the body and limbs of said Herbert George, and that by reason of said injuries, he is permanently injured, to his great humiliation, mental suffering, and disgrace; that just immediately prior to the time said boiling water, steam, and hot mud were thrown upon him, the agent, servant, or employe of said railway company saw and noticed said Herbert George and his playmates playing at and near the end of said pipe, and that he did not notify or warn them that he was going to clean out a boiler, and that there was danger, or that they were liable to be injured. And it is charged that by reason of these facts, acts, and conditions, the railway company was guilty of gross negligence, willfulness, and wantonness, and he has been greatly damaged in the sum of $3,000.

The answer was one of general denial, except that it admitted that it is a corporation engaged in operating a railroad, and that it maintains and operates said roundhouse; denied that if said Herbert George was injured, such injuries were occasioned by any negligence or carelessness on the part of the railway company, or of its servants, agents, or employes, but alleged that the said injuries, if so received, were directly occasioned by and were the proximate results of the plaintiff's own negligence. To this answer a reply was filed, denying each and all of the allegations set up as a defense in said an

swer.

It is contended that the court erred in giving to the jury instructions Nos. 2, 7, and 8. Instruction No. 2 reads as follows:

"(2) In this case, you are instructed that if you find from a preponderance of the evidence that said Herbert George was injured as alleged, and that such injuries, if any, were occasioned and the result of the emission of steam, water, and hot mud from the pipe as alleged in the plaintiff's petition. and you further find that the steam, hot

water, and hot mud were discharged from said pipe while the employes of the company in a negligent and careless manner, and with a knowledge of the presence of the said Herbert George on the said premises, at or near the said pipe in question as alleged in his petition, and you further find that the said Herbert George was free from any negligent and careless conduct on his part which contributed to his injury, then you should find for the plaintiff, and assess his recovery at such sum as you find from all the facts and circumstances in the evidence and under the instructions hereinafter given you that you think he is justly entitled to, in no event to exceed the sum sued for, to wit, $3,000."

It is contended that the giving of this instruction was error; that it violated the rule laid down in case of Midland Valley R. Co. v Littlejohn, 44 Okla. 7. 143 Pac. 1. In that case it was held that it is error to instruct the jury so as to permit a trespasser or licensee who had suffered personal injuries from contact with dangerous things on the premises of a landowner to recover damages therefor without proof of either willfulness or wantonness on the part of such landowner. It is also contended that this instruction is contrary to the doctrine laid down in the case of the City of Shawnee v. Cheek, 41 Okla. 227, 137 Pac. 724, 51 L. R. A. (N. S.) 672, where it was held that the duty owing by a landowner to a trespassing child of ten years of age. "in respect to safety from dangerous artificial conditions of the premises" is that such landowner will not "injure him intentionally or wantonly." In both of these cases it is held that wantonness may be inferred in proper cases from an omission to correct the condition, as well as from acts of commission, where such omission "involves a reckless disregard for the safety of merely technical and reasonably anticipated trespassers."

It is contended that the court committed error in permitting the jury to return a verdict for the plaintiff if it found that:

"Hot water and hot mud were discharged from said pipe by the employes of the company in a negligent and careless manner, and with a knowledge of the presence of said Herbert George on the premises at or near the steam pipe in question as alleged in his petition."

The evidence discloses that on the 4th day of March, 1915, the day of the accident, the plaintiff in error was maintaining, and for six or seven years prior thereto had maintained, a roundhouse at Waurika, in which was located a stationary engine, a metal blowpipe three or four inches in diameter extending from it and out of the building some 40 or 50 feet; that the pipe was used for the purpose of blowing out engines; that when it blew off

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