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Claypool v. Continental Casualty Co.

though no application had been accepted by it or policy issued. Appellant insists that, as his check for $3.75 was cashed by the company, this is evidence that the application was in fact received and acted upon favorably, and that, therefore, the company is liable. The answer to this contention is found in the letter which the company wrote appellant when it returned his application on the 13th. At that time it cannot be contended that the company was acting in any other than the best of good faith. In that letter the company said: "We herewith return you the application, and would suggest that you favor us with a new one, dating the same, to become effective December 1st [the time when the industrial policy then held by appellant expired]. Awaiting your reply and a new application, we are holding the amount received in our 'Suspense Account,' etc. [Signed] H. G. V. Alexander, 2nd V. P., and General Manager." There is nothing in this letter which would support the theory of appellant that the company had appropriated to its own use the $3.75, but, on the contrary, it shows conclusively that the application in the form in which it then was was not acceptable to the company, and they, in returning it, suggested how it could be made acceptable to the company, and at the same time notified appellant that the money which he had forwarded with the application would be held in the

suspense account." The proof shows that this check was not passed into the general fund account of the company until after the satisfactory application was received by the company on the 16th of November, and the company, not knowing of the accident or injury to appellant, issued to him a policy on the "commercial" plan according to the terms agreed upon in the amended application which it received on the 16th.

Claypool v. Continental Casualty Co.

The second ground relied upon by appellant is that it usually takes mail trains 12 hours to run from Dyersburg to Chicago, and that a letter mailed on the morning of the 14th would arrive in Chicago some time during the night, and be delivered on the morning of the 15th, and that the letter containing the amended application must have been received at that time. This might be true if the letter was promptly forwarded from Dyersburg, properly handled by the mail agents, the train proceeded on time, and the mail handled expeditiously at the Chicago end of the line; but there is nothing in the record to show the existence of any of these necessary prerequisites in order to support appellant's conclusion. He is building up a theoretical case, proceeding along speculative lines. While, as above stated, it is true that the letter mailed in Dyersburg on the morning of the 14th could have been delivered in Chicago on the morning of the 15th, it is equally true that it might not have been delivered until the morning of the 16th, and in the light of the positive evidence to that effect it was not. The failure of the company to preserve the envelope which inclosed this letter containing the amended application while a circumstance to be considered cannot militate against it; for it appears that all used envelopes were consigned to the waste basket, and only the letters preserved in the files. It may be added that such is the usual course of business concerns in regard to the preservation of their letters.

Appellant also complains that the lower court erred in transferring the case to the equity side of the docket. As the evidence in the case utterly failed to show the existence of a contract of insurance between appellant and appellee on the policy sued on, it would have been immaterial on which side of the docket the

Claypool v. Continental Casualty Co.

case stood, for, had it remained on the ordinary docket, it would have been the duty of the judge at the conclusion of the testimony to have instructed the jury to find for appellee. Conceding that the case should have remained on the ordinary side of the docket, appellant was not prejudiced by its transfer, for he was given ample opportunity to present his entire case. On his motion certain questions were submitted to the jury for their finding and determination, and, although every question submitted to the jury was answered in favor of appellant, yet the finding of the jury upon all points submitted by appellant failed to make out his case, and the answers to the questions submitted by the defendant were mere conclusions, based upon no evidence, but, on the contrary, were in direct conflict with the direct and positive evidence of the four witnesses introduced by appellee, who testified concerning matters bearing upon two of the three questions submitted.

The third question submitted by appellee bore upon the weekly earnings of appellant, and consequently has no bearing upon the case. Hence, even though the court erred in transferring the case to equity, the substantial rights of appellant have in no wise been. prejudiced by reason of such transfer. There was not the slightest evidence showing that the application which appellant mailed at Dyersburg on the 14th was received or acted on before the time of the accident; for, giving to the testimony of appellant its full weight, it would only go to show that the letter containing the application which was mailed at Dyersburg on the 14th reached Chicago 12 hours after it left Dyersburg, and should have been delivered on the morning of the 15th. He does not pretend that the letter was received by the appellee company one mo

Claypool v. Continental Casualty Co.

ment earlier than the time its witnesses say it was received, to wit, about 8 o'clock on the morning of the 16th. This being true, his case must fail; for, in the absence of a showing on his part that this application was received and acted upon before the time he received the injury, under the plain terms and provisions of the application itself, there was no contract of insurance whatever.

There being no contract of insurance, appellant had no cause of action, and any errors that the court may have made in the transfer of the case to equity, or in the failure to permit a jury to try all of the questions raised by the pleadings, in no wise prejudiced his substantial rights, and, under the provisions of sections 134 and 756 of the Civil Code of Practice, which provide that "the court must in every stage of the action disregard any error, or defect, in the proceedings, which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect," the judgment of the lower court must be affirmed. NUNN, J., dissents.

Reck & Riehl v. Caulfield.

CASE 79.-FORCIBLE DETAINER ACTION BY RECK & RIEHL AGAINST C. I. CAULFIELD.-October 8.

Reck & Riehl v. Caulfield

Appeal from Jefferson Circuit Court; Common Pleas Branch; First Division.

MATT O'DOHERTY, Judge.

Judgment for defendant, plaintiff appeals Affirmed.

1. Landlord and Tenant-Notice to Quit-Waiver.-Notice to a tenant to quit is waived by the landlord giving a subsequent notice, fixing a later date for a surrender of the premises.

2. Forcible Entry and Detainer-Notice to Quit.-A tenant under an indefinite tenancy, the term beginning the seventh day of the month, was not guilty of forcible detainer until June 7th, though 30 days' notice to quit was given April 15th, since a landlord cannot change the rental day nor the terms of the tenancy.

BENJAMIN F. GARDNER for appellants.

A written lease for "one month from February 7, '07 and by the month," with rent payable "at the beginning of each and every lease month" is a tenancy for a fixed term, and notice to tenant to quit, is unnecessary. Even if the lease may be construed a tenancy from month to month' and the duration of the term to that extent indefinite, the court erred in refusing an instruction that one month's verbal notice was sufficient to terminate the tenancy.

AUTHORITIES.

Throop v. Broadus, 5 Ky. Law Rep., 812; Riccius & Bro. v. Columbia Finance & Trust Co., 27 Ky. Law Rep., 880; Pulliam v.

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