remain in a defective and unsafe condition. That the injuries of said Walter W. Williams were caused by the carelessness and negligence of defendant as aforesaid." The defendant denied the allegations of the complaint and set up the defense of contributory negligence. The presiding judge charged the jury fully upon the question of negligence, but did not charge as to the effect of section 2183 of the Code of Laws of 1902.

The jury rendered a verdict in favor of the defendant, and the plaintiff made a motion for a new trial, which was refused in the following order: "The jury having returned a verdict for the defendant in the above case, the plaintiff's attorneys moved, on the minutes of the court, for a new trial, on the ground that I had given the jury the wrong standard by which to determine whether the injury complained of in this particular case was the result of defendant's negligence. This suit, it is contended, was brought under section 2183 of the Code of Laws of 1902, which provides substantially that where a railroad crosses a highway or street on a level, it shall so guard or protect its rails by plank, timber, or otherwise, as to secure a safe and easy passage over its road. The defense was a general denial, and the plea of contributory negligence. It is contended that a failure to conform to the provisions of the statute above referred to was negligence per se, and that I erred in not so charging the jury. I read the statute to the jury, and charged in response to the allegations of the pleadings, the testimony introduced and the position taken in the argument of the attorneys, as to what constituted negligence and contributory negligence. There was no request to charge, nor did plaintiff's attorney take the position in argument at the trial, that a failure to conform to the requirements of the statute was negligence per se. It is therefore ordered that the motion for a new trial be, and the same is, hereby, refused." The plaintiff appealed upon exceptions which raise practically the single question, whether the presiding judge, in the absence of a request, erred in not charging the jury that a failure to comply with the requirements of section 2183 of the Code of Laws, was negligence per se. This court is satisfied with the reasons assigned by the circuit judge in overruling the motion for a new trial, and his conclusion is fully sus tained by the cases of Hunter v. R. R., 41 S. C. 86, 19 S. E. 197, and State v. Adams, 68 S. C. 421, 47 S. E. 676.

It is the judgment of this court that the Judgment of the circuit court be affirmed.

(76 S. C. 91)

STATE v. WAY. (Supreme Court of South Carolina. Feb. 9, 1907.)

1. CRIMINAL LAW-EVIDENCE-RES GESTE. In order to render declarations admissible as part of the res geste. they must be sub

stantially contemporaneous with the crime, and be the instinctive utterances of the mind under the active influence of the transaction. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 804.]

2. SAME-HARMLESS ERROR.

The exclusion of evidence of accused as to declarations made by him shortly after the homicide was not prejudicial error, where by other witnesses the state had shown substantially the same declarations.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3145-3153.] 3. SAME-CHARGE ON FACTS.

An instruction that, if a man calls another some vile epithet, and he strikes and kills him, it is not a sufficient legal provocation, was not a charge on the facts, because of testimony that shortly before the killing deceased had called defendant "a damned liar."

4. SAME.

An instruction that, when the plea of selfdefense is relied on, it must be proved by a preponderance of evidence, is not erroneous, because it was not added that defendant was entitled to every reasonable doubt, where such instruction is afterwards given.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1990, 1991.]

Appeal from General Sessions Circuit Court of Orangeburg County; Gary, Judge. Jefferson W. Way was convicted of murAffirmed. der, and appeals.

Wolfe & Berry, for appellant. P. T. Hilderbrand, for the State.

JONES, J. The defendant was indicted and tried at September term, 1906, of general sessions for Orangeburg county, for the murder of John D. Palmer at Orangeburg, S. C., on July 9, 1906, and the jury found him guilty, with a recommendation to mercy, whereupon he was sentenced to life imprisonment in the penitentiary.

The first question presented by his appeal to this court, raised by the first, second, and third exceptions, is whether the court erred in excluding certain testimony offered by the defense through its witness E. O. Hoover. This witness was asked by defendant's counsel to state what the defendant said immediately after the shooting. The testimony was excluded on the solicitor's objection. The defendant's counsel contended that the testimony was admissible as a part of the res gestæ, and in direct reply to the testimony of the state's witnesses Boliver and Thomas, who testified as to statements made by defendant immediately after the shooting.

1. In order to render declarations admissible as a part of the res gestæ, the rule is that the declarations must be substantially contemporaneous with the litigated transaction, and be the instinctive, spontaneous utterances of the mind under the active, immediate influence of the transaction, the circumstances precluding the idea that the utterances are the result of reflection or design to make false or self-serving declarations. State v. McDaniel, 68 S. C. 310, 47 S. E. 384, 102 Am. St. Rep. 661. If the declaration is a mere narrative of a past occurrence, it is not

State v. Taylor,

admissible as res gestæ. 56 S. C. 369, 34 S. E. 939. As stated in State v. McDaniel, supra, questions of this kind must be largely left to the sound discretion of the trial judge, who is compelled to view all the circumstances in reaching his conclusion, and this court will not review his ruling, unless it clearly appears from undisputed circumstances in evidence that the tesimony ought to have been admitted or rejected, as the case may be. The circuit judge, in his view of the circumstances, regarded the utterance as a mere self-serving declaration, and we cannot say that he erred in so doing. The witness Thomas had testified in behalf of the state that, shortly after the shooting, defendant came out of his store, where the difficulty occurred, into the street, and said: "There it is. I have killed John Palmer. I had to do it. He came in my store and cursed me for a damn liar, and shot at me twice." And then he turned to his wife, who was walking in front of the store wringing her hands, and asked her if that was true, and she said: "Yes." Col. D. O. Herbert, for the state, had testified that he saw defendant running out of his store on the sidewalk with his pistol in his hand, and that he declared: "I had to do it, gentlemen. I had to do it in self-defense. He was trying to kill me, and I had to do it to save my life." That defendant went in the store, behind the counter, and said: "I had to do it. He ran me behind the counter and was shooting at me." And that defendant showed the witness how he was crouching behind the counter. Henry E. Boliver, witness for the state, had testified that he was across the street from the store of defendant; that, when defendant came to the door of his store a few seconds after the shooting, he said: "He called me a damn liar, and I shot him in self-defense." This witness, however, stated that defendant may have said something more which he failed to hear.

2. Now, counsel for defendant wished to show by the witness Hoover that defendant said that deceased had cursed him and shot at him twice, and he had to shoot deceased in self-defense. While it is true that, when the state has offered testimony as to the declarations of the defendant concerning the homicide, it is competent for defendant in reply to show the whole of the declarations made at that time, it is perfectly manifest that the exclusion of the testimony in this instance could not have prejudiced defendant, as the testimony for the state showed clearly that substantially the same declarations had been made by defendant.

3. The fourth exception raises the question whether the presiding judge charged in respect to matters of fact, in violation of the Constitution, in instructing the jury in these words: "If a man calls another a damned liar, or some other vile epithet, and he strikes and kills him, the law does not recog

nize that as a sufficient legal provocation." It is contended that this was a charge on the facts, because it was in the testimony that the deceased called defendant a damned liar just before he was killed. If the charge be construed as an allusion to matter in testimony, it was put in hypothetical form, and was not in violation of the rule declared in Norris v. Clinkscales, 47 S. C. 489, 25 S. E. 797. The charge was a mere statement of a legal conclusion which would result if the jury found certain facts. Kean v. Landrum, 72 S. C. 563, 52 S. E. 421. Besides, it was undisputed that the deceased did apply the epithet in question to the defendant at the time of the homicide.

4. The fifth exception alleges that the presiding judge erred in charging the jury that the defendant must establish the plea of self-defense by a preponderance of the evidence; whereas, he should have charged in that connection that the state was bound to prove every material allegation of the indictment beyond a reasonable doubt. At the conclusion of the charge, the jury were most explicitly instructed that the state must prove its case beyond a reasonable doubt, and that the defendant must be given the benefit of any reasonable doubt on any material fact in the case. The precise point has been ruled against appellant in State v. Way, 38 S. C. 346, 17 S. E. 39, which held that, in charging, "when self-defense is pleaded, it must be proved by the preponderance of the evidence." There was no error in failing to add that upon the whole testimony the defendant was entitled to every reasonable doubt, when such instruction was afterwards sufficiently charged.

The exceptions are overruled, and the judgment of the circuit court is affirmed.

An insurance policy provided that an increased hazard within the knowledge of the insured would avoid the policy. The owner of the building insured rented to a tenant a portion thereof to be used for a business more hazardous than contemplated by the policy. Held not to avoid the policy, where the temporary hazard ended without loss and the loss occurred from another source.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 751, 760.]

2. CORPORATIONS-EXISTENCE EVIDENCE.

The original charter of a corporation duly certified is the highest evidence of its incorporation, and, where that is introduced, defendant cannot avail itself of any alleged irregularity in complying with the law in subsequently changing the name of the corporation, which under Civ. Code 1902, § 1885, is available only in a direct proceeding by the state. 3. SAME ESTOPPEL TO QUESTION NAME.

Where a deed was executed to a corpora tion before a charter issued in the name set

out in the declaration in an action by the corporation, and thereafter the name in the char ter was changed by omitting one word from the title as set out in the declaration, and the deed conveyed the property insured to the corporation, the insurance company cannot object that the corporation acquired no title after is suing the policy and collecting the premium. Appeal from Common Pleas Circuit Court of Sumter County; Purdy, Judge.

Action by the Sumter Tobacco Warehouse Company against the Phoenix Insurance Company, Limited, of London. Judgment for plaintiff. Defendant appeals. Affirmed.

Jno. T. Seibels and Haynesworth & Haynesworth, for appellant. Lee & Moise, for respondent.

WOODS, J. This appeal is from a judgment recovered by the plaintiff on a policy of insurance issued by the defendant insurance company covering a "two-story frame shingleroof prizery"; the property having been destroyed by fire on July 11, 1903. The defense on the merits was under the following provisions of the policy: "This entire policy, unless provided by agreement indorsed hereon or added hereto, shall be void the hazard be increased by any means within the control or knowledge of the insured.

• if

This entire policy unless otherwise provided by agreement indorsed hereon or added hereto shall be void if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured or otherwise." The specific violation of these conditions alleged as avoiding the policy was that the plaintiff had changed the possession and increased the hazard by renting the building to a tenant who used it by permission of the plaintiff, and without the knowledge or consent of the defendant, in making and renovating mattresses, a business more hazardous than conducting a tobacco prizery, which was the business mentioned in the policy.

1. We consider first the exception which charges error in the instruction: "If the jury believe that the possession of the property insured was delivered to a tenant who occupied the property with an increased hazard, and if the jury believe that the occupation was temporary and ceased before the fire, then such occupation would not prevent a recovery, if it was contemplated and agreed between the parties that there should be a temporary use of it." The same point was made in other exceptions to the charge by request to direct a verdict and by motion for a new trial. Stating the evidence as to change of possession and increase of hazard most favorably to the defendant, it is manifest such change and increased hazard was only temporary, had ceased before the fire occurred, and had no connection with it. Ryttenberg, plaintiff's agent, about a month prior to the fire,

agreed to rent the property to one Potter, a maker and renovater of mattresses. Potter went into possession and placed a steam engine just outside of the building, which a witness on one occasion saw fired up ready for use in the mattress business; but, finding the building not suited to his purposes, Potter moved out after an occupancy of only two or three days. Ryttenberg seems to have supposed Potter was still in possession at the time of the fire, as he so stated in his proof of loss. In this statement of the facts, all evidence objected to by the defendant has been left out of view, and, if a temporary change of possession increasing the risk while it lasts, but discontinued before the fire, does not totally avoid the policy, but merely suspends it during the prohibited use, the provisions of the policy above quoted cannot avail the defendant.

On this point the authorities are in hopeless conflict. Some courts of high authority hold the policy to be finally avoided by such temporary increase of hazard. Mead v. Ins. Co., 7 N. Y. 530; Wheeler v. Ins. Co., 62 N. H. 326, 13 Am. St. Rep. 582; Ins. Co. v. Kyle, 24 N. E. 727, 124 Ind. 132, 9 L. R. A. 81, 19 Am. St. Rep. 77; Ins. Co. v. Russell, 69 Pac. 345, 65 Kan. 373, 58 L. R. A. 234. The precise point has not been decided by the Supreme Court of the United States, but the case of Kyte v. Ins. Co., 21 N. E. 361, 149 Mass. 116, 3 L. R. A. 508, is cited with ap proval in Imperial, etc., Ins. Co. v. Coos County, 151 U. S. 452, 14 Sup. Ct. 379, 38 L. Ed. 231. The issue in the last-mentioned case, however, was not as to the effect of a temporary change, but of a permanent charge due to material alterations of the building without the consent of the insurer. In Liverpool, etc., Ins. Co. v. Gunther, 116 U. S. 113, 6 Sup. Ct. 306, 29 L. Ed. 575, the prohibited hazard' was in existence at the time of the fire, and the exact point here under consideration was not involved. The reasoning in Kyte v. Ins. Co., the Massachusetts case just referred to, is that, unless the policy be regarded at an end the moment the hazard is increased, the insurance company would be held to furnish insurance for which it had not received the consideration it was entitled to demand and which with knowledge of the facts it would have demanded. But this reasoning seems fallacious, for the insurer is generally held to be not liable at all if the fire occurs during the continuance of the increased risk and in consequence of it. The contract of insurance must, like other contracts, be enforced according to its terms. In construing such contracts, however, courts should endeavor to ascertain from the language used, in the light of the surrounding circumstances and the nature of the business, the safeguards which the parties intended to place around themselves. It may be reasonable to suppose an insurance company would desire to reserve the valuable right of canceling a policy even on a temporary increase of hazard if known to

it at the time, because such change might result in loss, but it is not reasonable to impute to it a purpose or desire to curtail its own revenue by canceling a policy on account of a temporary increase of hazard which has come to an end without loss and from which it could not possibly suffer detriment. Hence there may be ground for holding a temporary increase of hazard forbidden by the policy to avoid the insurance without action or even knowledge on the part of the company when the loss resulted from that cause, but there is no ground for such an inference when the increase of hazard came to an end without loss. The greater weight of authority supports this conclusion. Ins. Co. v. Wetmore, 32 III. 221; National Fire Ins. Co. v. Catlin, 45 N. E. 255, 163 Ill. 256, 35 L. R. A. 595; Born v. Ins. Co., 80 Am. St. Rep. 300, 110 Iowa, 379, 81 N. W. 676, and note; Ins. Co. v. Lawrence, 81 Am. Dec. 521, 4 Ky. 9; Ins. Co. v. Kimberly, 6 Am. Rep. 325, 34 Md. 224; Angier v. Ins. Co., 71 N. W. 761, 66 Am. St. Rep. 685, and note; Doud v. Ins. Co., 141 Pa. 47, 21 Atl. 505, 23 Am. St. Rep. 263; Adair v. Ins. Co., 45 L. R. A. 204, 107 Ga. 297, 33 S. E. 78, 73 Am. St. Rep. 122; Wade v. Ins. Co., 58 L. R. A. 714, 95 Tex. 598, 68 S. W. 977, 93 Am. St. Rep. 870; Ins. Co. v. Union Stockyards Co., 87 S. W. 285, 27 Ky. Law Rep. 852; Ins. Co. v. McLimans, 45 N. W. 171, 28 Neb. 846; Gates v. Ins. Co., 55 Am. Dec. 360, 5 N. Y. 469. While in the case of Leggett v. Ins. Co., 10 Rich. Law, 202, stress was laid on the fact that the action was for insurance on a stock of goods, and not on the building in which they were contained, and that, therefore, some of the provisions of the policy similar to those here under consideration had no application, yet in that case the Court of Appeals approved a charge to the effect that an increase of risk permanent and continuous took away the benefit of the policy even though it did not produce the loss, but that "an occasional temporary increase of risk took away only the right to complain of loss which it had occasioned, and did not affect the right to recover for a loss with which it was in no way concerned." Some of the cases above cited from other states seem to go to the extent of holding that a temporary increase of hazard would not prevent a recovery on the policy, even where the fire was occasioned by the increased hazard. As to that question we express no opinion, as it is not involved in this case.

It follows from this discussion that the plaintiff was entitled to recover without respect to the question of waiver on the facts as proved by the defendant, unless there is some material error as to another defense set up by the defendant.

2. In proving title to the property, plaintiff offered in evidence a deed from William Mo

ran to the Sumter Tobacco & Cotton Warehouse Company, and a charter issued by the Secretary of State to the Sumter Tobacco Warehouse Company; the charter reciting that the original declaration set forth the name of the corporation as the "Sumter Tobacco & Cotton Warehouse Company," but this name had been changed to the "Sumter Tobacco Warehouse Company." The objec tion made to the admission of this charter on the ground that section 1884 of Civil Code allows a certified copy of the charter to be received in evidence, and therefore the original charter duly certified was inadmissible, is so obviously without force that it requires no consideration. The original charter duly cer tified is the highest evidence of the incorporation. The defendant could not avail itself of any alleged irregularity in complying with the law in changing the name of the corporation, because under section 1885 of Civil Code of 1902 such irregularity is available only in a direct proceeding to annul the charter instituted on behalf of the state.

3. One of the grounds of the motion for a new trial was that the deed of conveyance to the Sumter Tobacco & Cotton Warehouse Company conveying the lot on which the building stood was insufficient to prove title to the Sumter Warehouse Company. The deed was dated January 16, 1896, after the declaration looking to the charter of the Sumter, Tobacco & Cotton Warehouse Company had been filed, but before the charter was actually issued in the name of the Sumter Tobacco Warehouse Company. It is the duty of courts to give effect to deeds made in good faith rather than destroy them on technical grounds. A deed to a corporation made before the charter will have effect as soon as the charter is obtained, on the ground that its acceptance should be presumed as soon as the corporation is competent to accept it. 4 Thompson on Corporations, 5114, 5115. The slight change in the name of the corporation can make no difference. Cer tain it is that Moran, the grantor, would not be heard to allege against the validity of the deed on the ground taken by the defendant; and for a greater reason the defendant company, which had no interest in the land, after having issued its policy and having received its premium from the plaintiff as the owner of the property, cannot be allowed to do so. It would needlessly lengthen this opinion to review the cases relied on by the defendant. They are all different in their facts, and are not applicable to this case. To hold that the slight change in the name of the corpora tion should defeat the deed would be to refuse to regard the intention of all parties concerned for the sake of an attenuated technicality.

It is the judgment of this court that the judgment of the circuit court be affirmed.

a

Though the lowering of gates across street, where a railroad company is required to maintain them by ordinance, is notice that it is dangerous to cross, it does not excuse the railroad for failure to give the signals required by Civ. Code 1902, §§ 2132, 2139, at least 30 seconds before a train is moved.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, § 993.]

4. SAME CONTRIBUTORY NEGLIGENCE.

Failure to heed the warning given by gates closed at a crossing tends to show gross negligence.

Appeal from Common Pleas Circuit Court of Spartanburg County; Memminger, Judge.

Action by Bassett Weaver against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The following are defendant's exceptions: "(1) In allowing plaintiff, under the circumstances of this case, to testify that other persons crossed over between the cars before he did. The error being, as it is respectfully submitted, that, inasmuch as the gates were down, it was irrelevant as well as incompetent to allow testimony as to what others did, and what influence it may have had upon plaintiff; the issue in this case being solely as to the negligence of the defendant and the contributory negligence of the plaintiff, and not as to the acts and conduct of other persons.

"(2) Because his honor erred in allowing the witnesses Widdup and High to testify that they climbed over between these cars, and why they did it. The errors being that the issue in this case was as to the negligence of the defendant and the contributory negligence of the plaintiff, and not as to the acts and conduct of others; it being respectfully submitted that such evidence was both incompetent and irrelevant.

"(3) Because his honor erred in instructing the jury, as follows: 'And if you find that there was an ordinance of the city of Spartanburg which prohibited the railroad company from stopping its train on the street crossing for more than five minutes, and it being the general law that the railroad cannot stop upon the street crossing for an unreasonable time, and if you find that the Southern Railway did stop its train for an unreasonable time, for more than five minutes, that raises the general presumption of 56 S.E.-42

negligence, and the next question is: Did that negligence cause the injury alleged to have been suffered by this negro? And, if so, that is the basis of this action-if he has proved those allegations, he is entitled to damages.' The errors being, as it is respectfully submitted: (a) That this charge was a charge upon the facts, contrary to the provisions of section 26, art. 5, of the Constitution, in that his honor instructed the jury that the blocking of the street for more than five minutes would be blocking it for an unreasonable time. (b) In that his honor by this charge instructed the jury that if this train did block the street for an unreasonable time, for more than five minutes, that this raised the general presumption of negligence, and that the plaintiff, if he proved such negligence, would be entitled to damage, thereby ignoring the precautions that the defendant may have taken to warn persons not to cross the railroad, and making the right of plaintiff to recover depend entirely upon the length of time the train was across the street. That by this charge his honor instructed the jury that it was proven that the defendant did block the street for an unreasonable length of time, and that this negligence caused the injury, then the plaintiff was entitled to damage, thereby ignoring all questions as to the contributory negligence of the plaintiff, as well as all evidence of notice or warning given by the defendant before the train was moved.

(c)

"(4) Because his honor erred in charging the fourth request of the plaintiff, as follows: 'If a railroad company obstructs a highway for an unreasonable length of time, unless it is without fault, and a person enters upon its cars for the sole purpose of crossing the railroad track, he assumes only such risks as arise under the expectation that he has the right to entertain that the railroad will do what the law requires it to do that is, ring the bell or blow the whistle for at least 30 seconds before the moving of the engine and only such risks as may be attendant upon his own negligence; and whether he was guilty of gross or willful negligence, or of a violation of the law, is to be determined by the jury upon consideration of the facts and circumstances surrounding the case.' The error being that by this charge his honor ignored the provision of the statute which requires the plaintiff to prove, not only the failure of the defendant to comply with the statute, but that the plaintiff must make it appear that such failure contributed as a proximate cause to his injury, and led the jury to believe that, if the railroad company failed to ring its bell or sound its whistle, the plaintiff could recover simply by proving such fact without going further and proving that such failure contributed as a proximate cause to his injury.

"(5) Because his honor erred in refusing to charge the defendant's third request, as follows: (3) If the danger of climbing over