C. B. Shimer, of Covington, for appellee.

HOBSON, C. The Metropolitan Life Insurance Company issued to Alex W. McLaren on June 27, 1922, a policy insuring his life in the sum of $500, in consideration of the payment of an annual premium of $32.81. He made the first payment when the policy was issued. The next payment fell due June 27, 1923. The policy contained the following provisions:

re

"A grace of thirty-one days, without interest charge, shall be granted for the payment of every premium after the first during which period the insurance shall continue in force. "If, after this policy has been in force one full year, and before default in the payment of any subsequent premium, the company ceives due proof that the insured before attaining the age of sixty years, has become wholly and permanently disabled by bodily injury or disease, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, the company will waive payment of each premium as it thereafter becomes due during the insured's said disability. Any premium so waived shall not be deducted from the sum payable hereunder, and the values provided for under the provision Options on Surrender or Lapse' shall be the same as if such premiums had been paid in cash.

"This provision is granted without additional cost to the insured."

On July 13, 1923, the insured became wholly and permanently disabled by disease, so that he was permanently, continuously, and wholly prevented from performing any work for compensation or profit. He died in this condition on July 30, 1923; no proof of his condition was furnished the company before his death, and after he died the company denied liability upon the policy. This action was brought to recover upon it, and judgment having been rendered in favor of the plaintiff, the defendant appeals.

On

In Southern Life Insurance Co. v. Hazard, 148 Ky. 465, 146 S. W. 1107, the policy was issued on September 27, 1909. The premium for one year was then paid. The next premium was due on September 27, 1910. June 25, 1910, Hazard became wholly disabled by bodily disease, and this disability continued until the time of his death on May 18, 1911. On December 21, 1910, he furnished the insurance company with the required proof, showing his total, permanent disability. The policy in that case provided that premiums would be paid by the company if the insured was wholly disabled after one full annual payment had been made and before a default in the payment of any subsequent premium, if the insured furnished satisfactory proof that he had been wholly

"In the case at bar Hazard's right to have the company pay his premiums was fixed under the terms of the policy at the time he became disabled, on June 25, 1910. He was not

required to pay anything to have that right he had to do was to furnish proof of his disperfected, since by the terms of the policy all ability. The right, therefore, having been fixed during the life of the policy, and without the payment of any further premiums, it is apparent, under the authority of the Montgomery case, and the other cases heretofore cited, that time was not of the essence of Hazard's right to have the company pay his premiums. The presumption naturally arises, that having become totally disabled physically, he was not in a condition to attend to his business with that promptness which is required of persons in a normal condition. It is such conditions as these that give rise to the doctrine that time tract. Since Hazard had the right at the time is not, in equity, of the essence of the conhe became disabled, for the mere asking, to have the company pay his premiums until his death, we see no reason why, under the authorities heretofore cited, that he should not have had a reasonable time thereafter in which to present the proofs of his disability as required by the policy. Under the facts of this case we are clearly of opinion that the proofs of disability were furnished within a reasonable time." 148 Ky. 469, 146 S. W. 1109.

In that case, as in this, the insured had 30 days of grace in which to pay his premium after the due date. In that case, as in this, the policy provided that it should not be in effect if the premium was not paid. In that case seven weeks had elapsed after the expiration of the days of grace before the proofs of disability were furnished. While the wording of the two provisions as to the company paying the premiums in case of total disability is not literally the same, the substance to the average insurer would be the same, and the same reason exists for holding in one case, as in the other, that time was not of the essence of the requirement as to the insured furnishing proofs of disability. There is the same reason for allowing a reasonable time here as there was there.

McLaren was 38 years old. He had paid the first annual premium; he was not in default as to the second premium until the end of the days of grace, July 28, 1923. While the premium was payable on June 27th, he had the right to pay it at any time before July 28th, and having this right he was not in default until July 28th. When days of grace are allowed upon a note, it cannot be protested until the end of the days of grace, and no action can be maintained upon it until then. Certainly an insurance pol

icy should not be construed more strictly against the insured than such a note. Potomac Mfg. Co. v. Evans, 84 Va. 721, 6 S. E. 2; Osborn v. Rogers, 49 Hun (N. Y.) 245; Arnot v. Union Salt Co., 186 N. Y. 501, 79 N. E. 719.

Before the days of grace expired and on July 15th, the insured was stricken with a mortal disease. He could not present proofs before he was taken sick, and it would be a very unreasonable construction of the contract to say that he lost his rights by not presenting proofs while in this condition and before his death on July 30th. Such a construction of the contract would make it of no value to the insured in such cases, al

though this clause of the contract would, in many cases, be the inducement for taking the insurance, for this kind of insurance is usually taken by people who work for a living and who would rely on the company carrying the premium in case they become

disabled.

A very strict rule has been followed in favor of the insurer where the annual premium is not paid when due, but this is for the reason that the annual premium is the basis of the contract, and the business cannot be carried on without the payment of the premiums. But the furnishing of proofs of disability is entirely a different matter, and it is a sound rule that time is not of the essence of the contract and that proofs may be furnished in a reasonable time. It would have been nugatory to furnish the proofs after the insured died and after the insurer denied liability on, the contract. The denial of liability excused the furnishing of proofs then, and a reasonable time for furnishing the proofs had not then elapsed. Judgment affirmed.

LOVING v. COMMONWEALTH. (Court of Appeals of Kentucky. June 12, 1925.)

1. Obstructing justice 21-$1,000 fine and 12 months' imprisonment not too severe for inducing witnesses not to appear.

In prosecution under Ky. St. § 1294, for obstructing justice by inducing two witnesses to absent themselves from trial against accused, fine of $1,000 and 12 months' imprisonment in jail held not too severe, in view of fact that no limit has been placed on punishment by Legislature.

2. Witnesses 337 (2)-Admission of testimony as to accused's bad reputation, after he had testified, proper.

tion to attack his truth, veracity, or general moral character, in view of Civ. Code Prac. § 597.

3. Criminal law 1173(2)-Failure to limit evidence to question of credibility not prejudicial.

Where accused testified as a witness and state introduced evidence that his reputation for truth and veracity was bad, failure to admonish jury that this evidence could only be considered as affecting defendant's credibility was not prejudicial, as purpose of such evidence could not have been misunderstood.

Appeal from Circuit Court, Warren County. John D. Loving was convicted of obstruct

ing justice, and he appeals. Affirmed. G. D. Milliken, of Bowling Green, for appellant.

John A. Logan, of Brownsville, A. M. Chaney, E. of Bowling Green, Frank Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty. Gen., for the Commonwealth.

TURNER, C. Appellant was indicted charged with the obstruction of justice by unlawfully and corruptly enticing, soliciting, hiring, and persuading two named witnesses to absent themselves from the county and not to appear at a given term of court and give evidence against him in a prosecution then pending against him.

The offense charged is a common-law misdemeanor but the penalty therefor is prescribed by section 1294, Kentucky Statutes, wherein it is provided that upon conviction the defendant shall be fined or imprisoned, or both, at the discretion of the jury.

The evidence discloses that appellant was tried under a warrant in the Bowling Green police court charged with the sale of intoxicating liquor, and that two young men were the chief witnesses against him, and that upon his conviction there he appealed to the Warren circuit court. A few days before the term at which his case stood for trial in the Warren circuit court, he procured another, who was on intimate terms with one of the witnesses against him, to induce the witnesses to leave and remain away until after that term of court, and furnished the money with which they were induced or bribed to leave, and they did in fact leave and remain away until after the expiration of the

term.

[1] Upon his trial under this indictment he was found guilty and a fine of $1,000 assessed against him, together with a sentence of 12 months' imprisonment in jail.

On this appeal the first and chief com

This resolution was on the same day presented to the fiscal court and an order regularly entered by that body approving and adopting it. The matter was taken up by the state highway commission, and in conformity with those requests that commission on November 15, 1923, entered into a contract with the Cynthiana Const. Company for the construction of a reinforced concrete highway in Campbell and Pendleton counties along the highway mentioned, a distance of ten miles, at a cost of $349,167.82; the Pendleton Company part being apparently the distance set out in the resolution.

It appears that the publicity committee above named carried on an active campaign in favor of the bond issue and issued a circular over their names, headed "Some Facts and Figures on the $250,000 bond issue." It recited the amount of the bonds to be issued, their denomination, rate of interest and amount of the taxable property of the county, and various lengths of time for which they might be issued, the annual cost to the county to retire the bonds within certain stated periods and the tax rate necessary for that purpose, the cost of maintenance of roads under the then system, and the relief that would be afforded from such expenditure by permitting the state highway commission to construct and maintain them, together with the statement:

"That the state of Kentucky agrees to pay 50 per cent. of the cost of construction of intercounty seat roads and thereafter to take

"Outside of the intercounty seat roads there will be at least $160,000 out of the bond issue to be spent on side roads."

This action was filed by certain taxpayers of Pendleton county on the 10th of March 1924, and the above facts set out in the petition. It is alleged that the publicity committee was an agent of the fiscal court, and as such had authority from that tribunal to represent it in the campaign before the voters and styles the statements in the circular as "pre-election promises on the part of the fiscal court."

It is further alleged that Pendleton county's part of the contract mentioned made by the state highway exceeded the sum of $100,000; that, if the proceeds of the bond issue are devoted thereto, less than $150,000 will remain for outside roads, even without the

improvement of other intercounty seat highways, and that this is in violation of the "pre-election promises of the court" above alluded to, and is therefore unenforceable.

It is also alleged that the road contract above mentioned was invalid, for the reason that it was in excess of the balance of the unappropriated revenues authorized to be expended by the state highway commission for the fiscal year in which it was executed, and that the construction company upon the theory of privity of contract is seeking to obtain the proceeds of said bond issue. The relief sought is to enjoin the court and county from issuing the bonds or from paying the proceeds thereof or any part of them to the construction company, and that the latter be enjoined from asserting any claim thereto. A general demurrer was sustained to the petition and, plaintiffs declining to plead further, it was dismissed. Plaintiffs appeal.

[1-3] It is argued that the order of the fiscal court supra provided for a residue for the benefit of outside roads; that the publicity committee appointed by the fiscal court was authorized by the court to make definite statements in reference thereto, and that in fixing the residuum at $160,000 they were acting within the scope of their authority, and this constituted "a pre-election promise" which was binding on the court, and it is thereby precluded from expending in excess of $90,000 on the intercounty seat highways; that, as the admitted expenditure exceeds that sum, such expenditure is a diversion from the purposes for which the bonds were voted by the people and is therefore illegal. We are not impressed with this argument. The fiscal court speaks through its records. McKechnie v. Canada, 198 Ky. 807, 250 S. W. 111; McDonald v. Franklin Coun

ty, 125 Ky. 205, 100 S. W. 861, 30 Ky. Law Rep. 1245; City of Clinton v. Hickman Coun. ty, 160 Ky. 687, 170 S. W. 11. In this case