or not a valid and binding contract of insurance ever came into existence between the appellant, insurance company, and said John A. House prior to his death on February 13th. In the case of Stemler v. Stemler, 31 S. D. 595, 141 N. W. 780, this court held that the liability of the insurer must be determin is now assigned and urged as error. It is [lation to the acts of the parties that might the contention of respondent, and the trial or could upon any theory be held to concourt so held and found, that, by virtue of stitute a waivor of the said provisions of the said representation of Salmons, the evidence application, other than the issuance of the of the president of appellant that according policy in question and the circumstances to universal rule all policies of appellant surrounding the issuance thereof. Therefore, were dated as of the date of the reference as we view it, the vital question is whether of the application to the medical committee and the fact that the policy by its terms commenced said term of insurance on the 30th day of January, appellant impliedly waived the said stipulation of the application as to the time of the commencement of the said contract of insurance. It is uncontroverted that this applicant for insurance, notwith-ed from the contractual relations existing standing said oral conversation with said Salmons, executed and delivered to appellant the written application containing the said provisions hereinbefore quoted. Such are usual and common stipulations in insurance applications. We are of the opinion that the said evidence of Newell, under the circumstances of this case, was erroneously admitted. Section 860, Rev. Code 1919, provides: "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument." We are of the view that the testimony of the witness Newell is clearly within the rule established by this statute. It seems to be generally held that the parties to insurance contracts may, by express or implied agreement, subsequent conduct, or by the terms of the policy issued, waive provisions of a written application on which the policy is based, and that where there is a conflict or material variance between the provisions of an application and the policy the provisions of the policy must control. Anderson v. Mutual Life Ins. Co., 164 Cal. 712, 130 Pac. 726, Ann. Cas. 1914B, 903; Burt v. Burt, 218 Pa. 198, 67 Atl. 210, 11 Ann. Cas. 708, and note. If by a lawful policy subsequently executed the appellant materially varied from the terms of the application and issued a policy expressly starting the running of said contract of insurance at a different and earlier date than that specified by the terms of the application, and said policy, as so drawn, had been accepted or consented to by the applicant in his lifetime, then, and in that case, it might properly be held that the provisions of the application, as to when the contract of insurance should commence, had been waived, and that the provisions of the policy must control; and, under such circumstances, it also might properly be held that the admission of the testimony of the witness Newell, although erroneous, was wholly immaterial and nonprejudicial to appellant. From the record before us there seems to have been no subsequent conduct or circumstances in re between the insured and the insurance company at the instant of the death of the insured; that after the death of the insured the insurance company was powerless to enter into any new contract with him, or to change any old contractual relations existing between them, whether it had notice of his death or not. The decision in the case of Reserve Life Ins. Co. v. Hockett, 35 Ind. App. 89, 73 N. E. 842, is directly in point. In that case the provisions of the application involved were the same as in this; the application was signed and delivered and the first premium paid on April 5; the application and first premium were received at the office of the insurer on April 7; the applicant died on April 8, and on April 9 the policy was in fact issued and mailed, which policy, like the one in question, expressly provided that the term of insurance commenced on April 5th, the date of the application and payment of the premium. Among other things, the court, in rendering the opinion in that case, said: "When the decedent, in his application, made a proposal to become insured, he stated that make the insurance binding upon the company a certain cash installment had been paid to from the date of the delivery of the policy; and he agreed that the policy issued on the application should not take effect unless the premium was paid, nor unless the policy was delivered to him while he was in good health. Upon compliance with these conditions precedent, the contract of insurance was to take effect. The first was complied with the premium was paid. The second-as indispensable to the taking effect of the policy as the firstwas never complied with, and never could be complied with, because the life of the applicant sought to be insured had ended before the policy was written and issued. It is not a question of the proper construction to be given a doubtful or ambiguous provision of a policy. The parties had the right to contract out of their negotiations any uncertainty that might arise as to when the risk should attach and the insurance become binding upon the company. This they did. While negotiations for insurance were commenced when the application was signed and the premium paid on April 5th, yet no contract was then made, nor was it the purpose to contract afterwards in any manner other than by a policy issued by the company (180 N.W.) him. 4. Negligence jury question. ›136 (29)—Child's capacity and delivered to the applicant. The contract | ordinance, unless the unlawful speed of the was not made, in any event, before April 9th, automobile was apparent to and realized by and at that time one party to the contract was dead, and the subject-matter of the contract, the life regarding which the contract was made, did not exist. The death of Hockett on April 8th rendered the making of the proposed contract of insurance impossible. The fact that the policies, when issued on April 9th, were dated back as of the date of the application, April 5th, is not controlling. No contract of insurance was made prior to April 8th, and after that date no contract could be made that would be effective from any date." [2] For the reasons stated in the decisions cited and quoted, we are of the opinion that at the time of the death of the applicant, John A. House, the provisions of the said application, whereby he agreed that under no circumstances should said insurance so applied for by him be in effect until a delivery of the policy to him during his lifetime while he was in good health, was in full force and effect, the fulfillment of which agreement was a condition precedent to the completion of the contract of insurance thereby applied for by him; that the policy issued after his death was wholly ineffectual either as a completed contract of insurance or as a waiver of the said stipulation contained in the application; and that, by reason thereof, no binding contract of insurance was in existence between appellant and said John A. House at the time of his death. The judgment and order appealed from are reversed, and the cause remanded. CAMERON v. MILLER. (No. 4714.) (Supreme Court of South Dakota. Dec. 1, 1920.) 1. Municipal corporations >706 (6)—Negligence of automobile driver held for jury. In action for injuries to bicycle driver struck by automobile approaching from opposite direction on crossing street to enter alley, question of whether automobile driver was negligent in driving at an excessive rate of speed held for jury. 2. Municipal corporations 706 (6)-Whether negligence of automobile driver proximately caused collision held for jury. In action for injuries to bicycle driver struck by automobile approaching from opposite direction on crossing street to enter alley, whether negligence of automobile driver in traveling at an excessive rate of speed was a proximate cause of accident held for jury. 3. Municipal corporations 705 (10)-Bicycle driver may assume approaching automobile is not violating ordinance. Bicycle driver was warranted in assuming that automobile approaching from opposite direction was not exceeding speed limit fixed by A child's capacity for contributory negligence is a question for the jury unless there is a conclusive presumption of incapacity or unless the inference is such that reasonable men must draw the same conclusion. 5. Trial 178-Evidence viewed favorably to plaintiff on defendant's motion for directed verdict. On defendant's motion to direct a verdict, the court is bound to resolve the evidence most favorably to plaintiff. 6, Municipal corporations 706 (7)-Contributory negligence of 12-year old bicycle 'driver held for jury. In action for injuries to 12 year old bicycle driver struck by automobile approaching from opposite direction on crossing street in front of automobile in order to enter alley, question of bicycle driver's contributory negligence held for jury. 7. Evidence 62-Twelve year old boy presumed to have ordinary intelligence of boy same age. Twelve year old boy is presumed to have the ordinary intelligence, experience, and discretion of a boy of such age. Appeal from Circuit Court, Brown County; Frank Anderson, Judge. Action by James A. Cameron, by Anna Cameron, guardian ad litem, against Frank Miller. From judgment for plaintiff and from order denying motion for new trial, defendant appeals. Affirmed. McNulty & Campbell, of Aberdeen, for appellant. George H. Fletcher, of Aberdeen, for respondent. WHITING, J. Plaintiff sued to recover damages which he claims to have suffered as a result of an injury received when a bicycle, ridden by him, collided with an auVerdict and tomobile driven by defendant. judgment were for plaintiff. From the judgment and an order denying a new trial defendant appealed. The sole question presented upon this appeal is the correctness of the ruling of the trial court in refusing to direct a verdict for the defendant. Plaintiff was riding a bicycle along the north side of First avenue in the city of Aberdeen, and was going in a westerly direc tion. Defendant was driving his automobile along the south side of said avenue and was going in an easterly direction. They approached one another while traveling beOne-half tween Main and Lincoln streets. way between these streets and on the south side of First avenue is an alley extending in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a southerly direction through the center of this lack of evidence a verdict should have the block which lies between Main and Lin- been directed. He argues that, so far as the coln streets. It was while plaintiff was evidence tends to show, this collision was attempting to cross First avenue in order to just as likely to have occurred if he had been pass into the said alley that he collided with driving his car at a much less rate of speeddefendant's auto, the fender on the south that the excess of speed was in no way reside of the auto striking the very rear end sponsible for the accident. While, of course, of the bicycle. It is plaintiff's contention it is true that plaintiff, if he had chanced to that defendant was negligent in his driving have been running the bicycle slower, or had of said auto and that such negligence was the chanced to have started a little later on the proximate cause of the injury. Defendant errand upon which he was engaged, might contends, and urged upon his motion for di- have reached the place of collision at the rected verdict, that the evidence wholly fail-same instant when defendant's car would ed to show any act of negligence charged by have reached same providing such car had plaintiff, that such negligence was not the cause of the injury, and that, under the undisputed evidence, plaintiff was guilty of contributory negligence. It is plaintiff's contention that, owing to the minority of plaintiff, a child of 12 years of age at the time of the accident, the question of contributory negligence was properly submitted to the jury. As these parties were approaching one another, they each observed the other until about the time that the plaintiff turned to cross into the alley. Plaintiff admitted seeing the automobile approaching, but testified that he thought he had ample time to cross in front thereof, and that, as he started to make the turn, he shifted his attention to the running of the bicycle and did not observe the auto from that time until he was directly in front thereof. Defendant, while admitting that he saw the plaintiff on the bicycle coming westward on the opposite side of First avenue, testified that he did not see him at the time that plaintiff made the turn and did not see him until he was directly in front of the auto. been running at some lesser rate of speed, yet, in considering such possibilities, we enter into the field of mere conjecture. It is a fact, which the jury, under the evidence, were warranted in finding, that plaintiff, observing the approaching automobile, was of the opinion that he had ample time to cross in front thereof. Plaintiff had a right to rely on the assumption that defendant was traveling at a speed within the limit fixed by the ordinance (20 R. C. L. 118), unless the unlawful speed of the automobile was apparent to and realized by him. It does not appear that plaintiff did realize the speed at which the auto was traveling, and, if the auto had been traveling even three miles an hour less than it was in fact traveling (no matter what its actual speed was), it is beyond all question that the distance that would have been traveled by the auto, from the time plaintiff started to make the turn across the street until the time of the collision, would have been enough less than the distance actually traveled by said auto to have permitted of the bicycle passing the point of the collision before the auto reached such point. It folwhich the jury was warranted in finding, not lows, therefore, that there was evidence from only that the defendant was guilty of neglispeed, but that such negligence was the proxgence in driving his auto at an excessive imate cause of the collision. [1] Was there evidence from which a jury could reasonably find that the defendant was guilty of negligence, such negligence, if any, consisting in the fact of defendant's driving his automobile at a speed greater than the speed limit for that particular place, preBut defendant earnestly contends that, unscribed by an ordinance of the city of Aber der the undisputed evidence, it appears that deen? There was the testimony of several plaintiff was himself guilty of negligence, and witnesses to the effect that the said automo-that such negligence was a contributing bile was, at the time of and immediately cause of the injury suffered by him. This prior to the collision, running at a speed court has said: from three to eight miles in excess of the speed limit fixed by such ordinance. It was held by this court in Traction System v. R. R. Co., 39 S. D. 17, 162 N. W. 740, that a jury was bound to presume, until the contrary was shown, that the running of a train at a higher rate of speed than that limited by the ordinance of a city was negligence. See, also, Whaley v. Vidal, 27 S. D. 627, 132 N. W. 242. It follows, therefore, that there was sufficient evidence to go to the jury upon the question of defendant's negligence. [2, 3] Defendant contends that there was no evidence to support the claim that the speed of the automobile was the proximate cause of the collision, and that because of "Where reasonable men might draw different conclusions from the undisputed evidence, the question of negligence or contributory negligence is one of fact for the jury, and it is only where the evidence is without material conflict and is such that all reasonable men must draw the same conclusion therefrom that the question is for the court." Whaley v. Vidal, supra. [4] Were it not for the fact that the plaintiff was a child, the trial court, perhaps, should, in accordance with the above rule, have directed a verdict for defendant; the act of plaintiff, in crossing the street in front of the approaching automobile, being one (180 N.W.) comprehend the certainty of personal injury if he should collide with the auto. If the ability of plaintiff to recognize the above fact had been the only thing to be determined by the court or jury, the court should have directed a verdict. However, the court was bound to recognize that plaintiff was called upon to determine, not merely the certainty of injury if he collided with the auto, but the probability of such collision; or, in other words, the imminence thereof. This called for the exercise of a degree of judgment entirely different from that necessary to determine the probable result of a collision-it called upon him to judge of the relative speed of the two machines as well as the relative distance to be traveled. Whether plaintiff, a boy of 12 years of age presumed to be possessed of the ordinary intelligence, experi sufficient mental capacity, discretion, knowledge, and experience to render him capable of comprehending the situation and realizing the risk he ran in attempting to cross in front of the auto, was a matter upon which reasonable men might well differ in their conclusions. which, if it had been that of an adult person, | gence-and we must presume this boy was might have been held negligent as a matter possessed of such intelligence-would fully of law. But plaintiff was a child, and he contends that the question as to whether or not he was possessed of such mental capacity, discretion, knowledge, and experience as to render him capable of contributory negligence was one that the court was bound to submit to the jury. There is a great conflict of authority as to age under which it will be conclusively presumed that a child is incapable of contributory negligence; the age, if any, under which it will be presumed, but not conclusively, that a child is capable of contributory negligence; and the age, if any, over which it will be presumed that a child is capable of contributory negligence. We find it unnecessary at this time to enter into this very interesting field of study, as no question is raised but that the instructions given to the jury laid down correct rules of law. The question before us is simply wheth-ence, and discretion of a boy of that age, had er this question of capacity was one of fact under the evidence? Ordinarily the question of a child's capacity is one to be determined by the jury exactly as any other fact upon which rests the ultimate determination of the existence of negligence or contributory negligence. Therefore the rule above quoted from the opinion in Whaley v. Vidal applies, and this question of capacity must go to the jury in all cases except where there is a conclusive presumption of incapacity, or where, under the evidence, "reasonable men must draw the same conclusion." See authorities cited in notes L. R. A. 1917F, 68 and 84-92. To draw from these authorities any rule that may serve as a guide in determining whether the proven mental capacity, discretion, knowledge, and experience of plaintiff were such that all reasonable men would conclude that he should have comprehended the particular danger confronting him, is, we think, impossible. Therefore we do not deem that any good purpose would be served by detailing the particular facts, and the rulings thereon in the almost innumerable cases referred to in L. R. A. 1917F, 84-92; but one conclusion can be drawn therefrom: Each case must be determined upon its own facts. It must be conceded that the record presents a very close question; yet if there be a doubt in our mind we must assume that there was at least a doubt in the mind of the trial court, and the existence of such doubt, if any, gave full warrant to such court to submit this question to the jury. The judgment and order appealed from are affirmed. STATE v. THOMPSON. (No. 4748.) (Supreme Court of South Dakota. Dec. 1, 1920.) Judges 51(4)-Judge required to call in other judge to preside on filing of affidavit of bias. Under Rev. Code 1919, § 4813, requiring judge to call other judge to preside on filing of affidavit of bias, the court had no alternative on filing of affidavit except to call in other judge, in view of Const. art. 6, § 21, even though defendant voluntarily answered judge's questions as to grounds for his affidavit. Appeal from Circuit Court, Meade County; James McNenny, Judge. [5] Upon the motion to direct a verdict the court was bound to resolve the evidence most favorably to plaintiff. Under this rule, what were the facts which the court was bound to assume to be undisputed when it was called upon to determine whether there was any issue to go to the jury? What seems to us to be the all-important facts were that plaintiff did not know that the auto was traveling at such a speed that it would come up to him as quick as it did; that he thought he could cross ahead of it; and that the auto was traveling much faster than he thought it was. [6, 7] Of course, it must be conceded that Byron S. Payne, Atty. Gen., and E. D. boy of 12 years of age, of ordinary intelli-Roberts, of Pierre, for the State. George H. Thompson was convicted of burglary, and appealed from the judgment and order denying a new trial. Reversed and remanded, with directions. Harry P. Atwater and H. M. Lewis, both of Sturgis, and Henry Frawley, of Deadwood, for appellant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes GATES, J. Defendant was charged with! the burglary with explosives of the Farmer's State Bank of Faith. After his plea of not guilty and before trial, he filed an affidavit of bias and prejudice of the presiding judge in the language of the statute and demanded that another judge be called to preside at the trial. On the same day the defendant was ordered into court and the following proceedings were had: "By the Court: Mr. Thompson, you signed an affidavit here yesterday in which you charge that you could not have a fair trial. "Mr. Atwater: If the date is yesterday, it is a mistake, because it was signed this morning. "By the Court: You signed, then, this morning an affidavit charging that you could not have a fair trial by reason of the bias and prejudice of this court? A. Yes, sir. "By the Court: Did you ever see me before? A. No, sir. "By the Court: You stated that you never saw me before? A. No, sir; only the time I was up before you the other day to plead. "By the Court: And does that form your basis on which you make the affidavit that by reason of the bias and prejudice of me you cannot have a fair trial? A. For that reason, and I understood you were attorney for the bank here for a number of years. I thought that under that condition I couldn't have a fair trial. "By the Court: Is that the ground upon which you filed the affidavit, too, Mr. Gabriel? A. Yes, sir. "By the Court: And because you think I was attorney for a bank eight or nine years ago, you think that fact would warrant you in filing the affidavit that I was biased and prejudiced against you, do you? A. Yes, sir." The trial court denied the motion for a change of judges, and in so doing said, among other things: The statute in question is a portion of section 4813, Rev. Code 1919, viz.: "And if he shall make affidavit that he can not have an impartial trial by reason of the bias or prejudice of the presiding judge of the circuit court where the indictment or information is pending, the judge of such court must call some other judge of the circuit court to And it shall be the duty preside at said trial. of such other judge to preside at said trial and do any other act with reference thereto as though he were presiding judge of said circuit court." It will be observed that by the letter of the statute the filing of such affidavit operates The statute does to disqualify the judge. not contain the words "if it appear to the satisfaction of the court," which do appear in the earlier part of the same section relating to change of place of trial. When an affidavit of bias or prejudice of the presiding judge is filed, no issuable question is presented as to whether the judge is or is not biased or prejudiced. The law on this subject has been the same as at present ever since the enactments of section 285, c. 35, Laws Dakota Territory 1874-75, except that until the Revised Code 1919 the language "the judge of such court must call some other judge" appeared as "the judge of such court may call any other judge." under the section as it was prior to Rev. Code 1919 the word "may" was construed to mean "must." State v. Henning, 3 S. D. 492, 54 N. W. 536; State v. Palmer, 4 S. D. 543, 57 N. W. 490; State v. Finder, 12 S. D. 423, 81 N. W. 959. The decisions of our Even sister state under the like statute were to the same effect. The trial court therefore had no right to interrogate the accused as to the facts constituting the basis for his assertion of bias or prejudice, but should have called in another circuit judge to try the case. "Now, the statute provides that when an affidavit is filed alleging the bias and prejudice But it is claimed that, because the accused of the presiding judge a judge must immediately call in another judge to try the case, and I am answered the questions, the transaction must mindful of the fact that the Legislature of the be held to be a voluntary submission to the state of South Dakota had a right to say by trial court of the question of bias or prejuwhom, when, and where a person charged with dice, and because of the fact that defendant crime shall be tried. I also believe that a was convicted he has not been prejudiced by court has inherent power and that it is the duty the ruling. We cannot consent to the view of the court to protect the court and the people that the answers to these questions were from fraud and imposition, and I believe that the affidavit in this case and the statements made would, if the court followed them, work a fraud and imposition upon this court and the people, and, much as I regret having to pass upon a case of this kind, I feel that there is no other tribunal competent to pass upon it at this time, and that it is my duty to pass upon it. And as I view the affidavit and the statements made in connection with it by the defendant parties who filed the affidavits, are so far-fetched, frail, and unsubstantial that The Judgment and order denying a new to act upon them would be committing fraud and imposition upon the courts of this state trial are reversed, and the cause is remandand the people of South Dakota. Therefore, ed, with directions to the trial court to call gentlemen, I am compelled to deny the motion." in another circuit judge to try said cause. voluntarily given, nor is the final outcome of |