on his policy deprives his family of expected protection by failure to pay at a critical time. But insurance is a business proposition, and no company could survive if the insured could default while in good health, but retain a right to pay up when impaired health gives warning. It is a warning of which the company also has the right to take notice when asked to waive a forfeiture. It is the insured's own fault when he does not make a payment as he contracted.'" [4] The letter of September 9, addressed to Merl S. Nelson, informed him that he had then allowed his "policy to lapse by default in payment of the last premium," a fact of which he was presumed to have knowledge. By the letter of October 15, receipt of his check for $16.49, tendered in payment of the premium due August 10, was acknowledged and he was again advised that his policy had lapsed and that in order to restore the same it would be necessary to furnish the company with a satisfactory certificate of health; and again, on December 8, by letter he was advised that his policy had already lapsed and the proceeds of his check placed in suspense pending receipt of certificate of health which he had not then furnished, and never did furnish, and that "if we do not hear from you on or before December 25, we will refund your check of $16.49." Our opinion is that the policy had lapsed, that the letters addressed to the insured clearly negatived a waiver of the forfeiture committed by the insured, and that the judgment and order refusing plaintiff a new trial should be and are affirmed. Affirmed. Cheney, Jensen & Holman, of Salt Lake City, for plaintiffs. John A. Marshall, A. L. Hoppaugh, and Richard Hartley, Co. Atty., and James Ingebretsen, all of Salt Lake City, for defendant. WEBER, J. By this action plaintiffs seek to compel defendant, the assessor of Salt Lake county, to assess as money or cash in hand the bank deposits of the various taxin violation of an order issued by the state payers of the county. Plaintiffs allege that board of equalization defendant has treated bank deposits as credits from which the debts of the taxpayer may be deducted. able and should be assessed to the depositors. It is conceded that bank deposits are taxIt is also conceded that the relation between itor and debtor; that the general deposit bea general depositor and a bank is that of credcomes the property of the bank and becomes and is part of a general fund from which the depositor is paid on demand. The question presented for decision is whether bank deposits shall be assessed for taxation as money or as solvent credits. If they are assessed duct his debts, and, if bank deposits are asas money, the depositor is not entitled to desessed as solvent credits, the taxpayer may deduct his bona fide debts. The statutes of the different states relat ing to the assessment of bank deposits are so variant that the decisions of courts of other states in accord with the varying provisions of different statutes are of little, if any, assistance in arriving at a conclusion in the present case. In some of the states mon BRANTLY, C. J., and HOLLOWAY, HUR- ey is defined as including bank deposits. For LY, and MATTHEWS, JJ., concur. (56 Utah, 346) ROBERTS et al., State Board of Equalization, v. LYNCH, County Assessor. (No. 3489.) (Supreme Court of Utah. June 16, 1920.) 1. Statutes 205-Construed as whole. What a statute says must be taken as a whole in construing it. instance, in Texas bank deposits are regarded as cash, not as credits, because the statute defines money as including "every deposit which any person owning the same or holding in trust and residing in this state is entitled to withdraw in money on demand." Campbell v. Wiggins, 2 Tex. Civ. App. 13, 20 S. W. 735. Referring to Gray v. Street Com. of Boston, 138 Mass. 414, counsel for plaintiffs insist that "the court had before it a situation as nearly identical to the one before this court as two situations could possibly be." The statute of Massachusetts defining per2. Taxation 386(1)-Bank deposits assess-sonal property distinguishes money on deposit able as solvent credits, and taxpayer entitled to deduct debts. Under Comp. Laws 1917, §§ 5865, 5877, bank deposits should be assessed for taxation to the depositors as solvent credits, not as money, and from the sum total of his credits a taxpayer is entitled to a deduction of debts owing by him. from debts due the person, and the section of the statute of that state setting forth the form of valuation list made by the assessor provides that in the column for "ratable cash assets" the assessor shall enter the "‘amount of money at interest more than the person assessed pays interest for, including public securities; the amount of money on hand, inAction by B. H. Roberts and others, con- cluding deposits in any bank or in any savstituting the State Board of Equalization, ings bank, which is not exempted by law against James E. Lynch, as County Assessor from taxation;' and other kinds of personal of Salt Lake County. Complaint dismissed.estate." The Massachusetts decision was (190 P.) based upon a statute that differs radically The above section was borrowed from eifrom that of this state, and it follows that ther Montana or California; the latter state the case throws little light upon the question having enacted in 1872 what is substantially now involved. Nor can we accept Beard v. section 5877, supra. Instead of using the People's Savings Bank, 53 Ind. App. 185, 101 words "deposited money, gold dust or other N. E. 325, as persuasive. In Indiana the stat- valuables," both the California and Montana ute provides in its tax schedule for the en- statutes read: try, as the first item, of "money on hand or "Deposits of money, gold dust or other valuon deposit," thus treating, for taxation pur-ables and the names of the persons with whom poses at least, money on hand the same as such deposits are made and the places where money on deposit. they are to be found." In Michigan the Legislature has listed money under "personal property credits," and in City of Detroit v. Hertz, 184 Mich. 512, 151 N. W. 564, the court concludes that money on deposit is a credit because so listed by the Legislature. Money, gold dust, and other valuables are placed in a class by themselves, and are referred to as "such deposits”— i. e., such deposits of money, such deposits of gold dust, such deposits of other valuables. The deposits referred to are special deposits, the money, gold dust, diamonds, or other valu It would be futile to further notice decisions based on statutes unlike those of Utah. We are in full accord with counsel for plain-ables being placed in some drawer, safe, or tiffs when they say: "The question of whether the Legislature has authorized any deduction of indebtedness from moneys on deposit in banks is one determined by the provisions of the taxation laws of this state, and in their provisions the answer must be found." In section 5865, subd. 6, Comp. Laws Utah 1917, the word "credit" in the sense in which it is used in the statutes on taxation is defined as "those solvent debts, secured or unsecured, owing to a person." Section 5877 provides that the assessor may require from any person a statement under oath setting forth specifically all the real and personal property owned by such person or in his possession or under his control at 12 o'clock M., on the 1st day of January. Such statement must be in writing, showing separately, among other things, the following: "1. All property belonging to, claimed by, or in the possession, or under the control or management of such person. * * 5. A statement of all lands in parcels or subdivisions, not exceeding 640 acres each, and the sections and fractional sections of all tracts of land containing more than 640 acres which have been sectionized by the United States government; improvements, and personal property, including all vessels, steamers, and other water craft, and all taxable state, county, city, or other municipal or public bonds, and the taxable bonds of any person, firm, or corporation, and the deposited money, gold dust, and other valuables, and the names of the persons with whom such deposits are made, and the places in which they may be found; all mortgages, deeds of trust, contracts, and other obligations by which a debt is secured, and the property affected thereby; "6. All solvent credits, secured or unsecured, due or owing to such person, or to any firm of which he is a member, or due or owing to any corporation of which he is president, secretary, cashier, or managing agent, deducting from the sum total of such credits only such debts, secured or unsecured, as may be owing by such person, firm or corporation." other receptacle, the transaction being a bailment and the bailor being entitled to a return of the identical property that has been deposited. It appears that the particular question here involved has not been decided by the Supreme Court of either Montana or California, but in Clark v. Maher, 34 Mont. 399, 87 Pac. 272, it was held that moneys due from other banks and subject to draft are solvent credits from which the depositing bank is entitled to deduct its debts. a Pacific Coast Sav. Soc. v. San Francisco, 133 Cal. 14, 65 Pac. 16, is to the effect that a balance of money account on general deposit in a bank outside of the state, held by a corporation having its principal place of business in the state, is taxable as solvent credit to the California corporation. If deposits in banks outside of which the California taxpayer may deduct the state are considered solvent credits from his bona fide debts, why should not his deposits in banks inside the state be considered solvent credits under the laws of either California or Utah? It would be splitting hairs to distinguish between the words "deposit of money," as used in the California and Montana statutes, and "deposited money," as it occurs in our tax law. "Deposited money, gold dust, and other valuables, with whom such deposits are made and the places in which they may be found" means something different from credit balances in bank accounts. This is evident from the fact that "deposited" is used not only in connection with money, but also refers to gold dust and other valuables, the whole sentence plainly referring to money that is deposited as gold dust is deposited, or as other valuables are deposited, in some "place of deposit"-some receptacle, safe, or vault-and not to a debt due from some one, or to a bank deposit which is but a debt from the bank to the depositor. The directions that the taxpayer shall "give the names of the persons with whom such deposits are made and the places where they may be found" plainly indicate that for the purpose of preventing such prop- 2. Negligence 85(2)-Degree of care reerty from escaping taxation the Legislature quired of child graduated to age. provided for the disclosure of the hiding places where gold dust, jewelry, diamonds, coin, money, and other valuables were placed or secreted. [1] In their argument plaintiffs refer to "deposited money," and when they say that the Legislature in Utah has excluded "deposited money" from the classification of solvent credits, they treat the words "deposited money" as synonymous with "bank deposits." What the statute says must be taken as a whole. Particular words taken from the context may be given and may often have an entirely different meaning than when read in connection with the language with which they occur in the statute. So here "deposited money," when standing alone, separated from the sentence in which it occurs, might fairly be held to include bank deposits, but, in our opinion, "deposited money" as used in section 5877, supra, cannot reasonably be defined or construed as embracing bank deposits. If the Legislature intended to exclude bank deposits from the classification of solvent credits, it would unquestionably have employed language similar to that used in Massachusetts or some of the other states and would have said "money on hand, including deposits in any bank," etc. If it was the intention to take bank deposits from the class of solvent credits and for the purpose of taxation transmute a credit in a bank into actual money in the taxpayer's hand or pocket, the Legislature would certainly have resorted to the use of more suitable language to express such intent. [2] In our opinion, bank deposits should be assessed to the depositors as solvent credits, and from the sum total of his credits the taxpayer is entitled to a deduction of such debts as may be owing by him. The complaint in this case is therefore dismissed. (Supreme Court of Utah. June 9, 1920.) 1. Municipal corporations 706 (7)-Child not guilty of contributory negligence as matter of law when run over by automobile. A child of four years and ten months cannot as a matter of law be held to have appreciated the danger of crossing a street when an automobile was approaching, and is not presumed to conduct herself as an adult person would under similar circumstances.1 The degree of care required of a child must be graduated to its age, capacity, and experience, and must be measured by what might ordinarily be expected of a child of like age and capacity under similar conditions, and, if it acted as might reasonably be expected of such a child, it cannot be charged with contributory negligence. 3. Municipal corporations 705 (3)-Care required of automobilist on street; "ordinary care." street is not an insurer against damages to An operator of an automobile on a public children or other persons, and is only required to exercise ordinary care, or such care as an ordinarily prudent person would exercise under like or similar circumstances, but the degree of care required to be exercised will be greater when the safety of children, or others of immature judgment, is involved, and when such facts are known to the operator of the car. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.] 4. Municipal corporations 705 (3)-Blowing horn by automobilist did not relieve of charge of negligence as to child. The fact that defendant automobilist sound ed a horn when approaching a girl under five relieve him of the charge of negligence, as such years of age about to cross the street could not a child could not appreciate or understand the object sought or the reasons given for such warning. 5. Municipal corporations 706 (6) Negli gence of automobilist running over child for jury. In an action for personal injuries to a little girl four years and ten months old, received when run down by defendant's automobile, whether defendant was negligent in assuming that the little girl would not get in front of the automobile after having seen it held for the jury. Appeal from District Court, Cache County; J. D. Call, Judge. Action by Charlotte Herald, guardian, etc., against Abraham Smith. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted. Le Roy B. Young, of Brigham City, for appellant. Walters & Harris, of Logan, for respond ent. GIDEON, J. Plaintiff, a minor, by her guardian, brings this action, to recover damages for personal injuries resulting from an automobile accident alleged to have been caused by the negligence of the defendant. The grounds of negligence alleged are: That defendant operated the car at an excessive rate of speed; (b) failure to give any warning or to look ahead to see if pedestri Gesas v. O. S. L. R. R., 33 Utah, 156, 93 Pac. 279, 13 L. R. A. (N. S.) 1074; Groesbeck v. Lakeside Printing Co., 186 Pac. 103. (a) (190 P.) ans were crossing the intersection of the traveling along that walk, pulling the express street; (c) failure to have the car under wagon. Defendant's testimony is to the efproper control when crossing the intersection; fect that he observed the child while crossand (d) operating said car in a negligent and careless manner without regard to the safety of the plaintiff. ing, or immediately after crossing, the railroad track, and at that time the automobile was proceeding at a rate of about 5 miles per hour; that the plaintiff at that moment had left the sidewalk and had advanced into the street along the cement crosswalk probably some 7 or 8 feet; that, upon observing the child he feared an accident; that he immediately blew the horn of the automobile, and that the child stopped. At that time he was some 40 of 45 feet from the plaintiff. Defendant seems to have acted upon the theory that, as the child stopped when he blew the horn, he had a right to assume that she would not move forward. He therefore proceeded to advance. At the same time, apparently, the plaintiff, without much regard to the approach of the automobile (and from the testimony it appears that her attention was centered more on the little wagon than anything else), proceeded to go forward, and was either struck by the automobile or she walked against the running board and was thrown backward over the express wagon and sustained the injuries complained of. The witnesses all agree that the accident happened at or near the point marked B on the diagram, which is some two-thirds or three-fourths of the distance across the street from the north to the south. As stated, there is some conflict in the testimony as to the rate of speed at the particular moment of the injury. We regard that, however, as of little moment. It appears from the defendant's testimony that he saw the plaintiff in ample time to have avoided the accident had he assumed that the plaintiff would not heed the warning given, if any was given, and remain in the place where she was until after defendant's automobile had passed. On the afternoon of the day of the accident the plaintiff, pulling a small express wagon, came down the cement sidewalk, traveling westward on the north side of Depot street, and on arriving at the street intersection, at a point at or near A on the diagram, turned and proceeded to cross the street to the south corner, upon which a bank is located. A small [1, 2] The plaintiff was a little girl four automobile was parked at the point marked A. years and ten months old. She was lawfully There was also a tree near that point. The on the street at the time of the accident. plaintiff passed behind the automobile, under The defendant's duty to the plaintiff cannot the tree, and turned south across the street. be measured by what he might reasonably About the same time the defendant approach- have expected to be the conduct of an adult ed the intersection driving north on the west person in such circumstances. It was his side of Main street. There was no obstruction duty to avoid the accident if possible in the to prevent the defendant from seeing the plain- exercise of ordinary care, and it was for the tiff at the time or immediately after she jury to say whether he was justified in asturned across the street from the point mark- suming that the plaintiff would do or might ed A. The testimony of the plaintiff's witness- do the acts which the testimony shows she es is that defendant approached the intersec- actually did. A child of that age cannot, as tion traveling about 12 or 15 miles per hour; a matter of law, be held to have appreciated that he did not slacken his speed perceptibly the danger and is not presumed to conduct until after the accident. The testimony of herself as an adult person would under simdefendant is that in approaching the intersec-ilar circumstances. There is nothing in the tion from the south he was traveling at the rate of about 10 miles per hour, and that in turning eastward to cross the railroad track he slackened his speed to about 5 miles per hour. A cement walk some 3 or 4 feet wide runs from the point A southward across Depot street to the bank, and the child was record to indicate that the plaintiff had sufficient capacity to understand or appreciate the danger to which she was exposed by the approach of the defendant's automobile. In fact, the contrary appears. "The degree of care required of a child must be graduated to its age, capacity, and experi ence, and must be measured by what might [cumstances. The facts, however, do not show ordinarily be expected from a child of like age, that the operation of the car at that rate of capacity, and experience under similar condi-speed was the cause of, or contributed to, the tions. If it acted as might reasonably be accident. The only negligence of defendant expected of such a child, it cannot be charged shown by the testimony, if he was guilty of with contributory negligence." Gesas v. O. S. L. R. R., 33 Utah, 156, 93 Pac. 279, 13 L. R. A. (N. S.) 1074. any, was in proceeding eastward over the crosswalk after he observed the child, upon the assumption that the plaintiff would heed See, also, Groesbeck v. Lakeside Printing his approach and remain away from the Co., 186 Pac. 103. course of the automobile. [3] There is no testimony in the record [5] We are of the opinion, and so hold, that tending to prove that defendant did not have the plaintiff was entitled to have that queshis car under control or that he was operat- tion submitted to the jury under proper ining it in a reckless manner, but there is testi-structions as to the degree of care required mony, in our judgment, entitling the plaintiff of the defendant under all the circumstances to have the question submitted to the jury shown by the record. These conclusions are whether or not the defendant was negligent supported by Meserve v. Libby (Me.) 15 N. C. in proceeding over the cement crosswalk in C. A. 781, 98 Atl. 754, and Deputy v. Kimmell, disregard of plaintiff's rights, after he had 8 N. C. C. A. 369, 89 S. E. 919. The recent observed the approach of plaintiff and knew cases bearing upon the question herein conthat an accident was imminent and made no sidered are collated in the note to Meserve v. effort to stop the car. An operator of an au- Libby, supra. tomobile on a public street is not an insurer against damages to children or other persons. He is only required to exercise ordinary care or such care as an ordinarily prudent person would exercise under like or similar circumstances, and, as indicated, the degree of care required to be exercised will be greater when the safety of children or others of immature judgment is involved, and when such facts are known to the operator of the car. What would constitute reasonable care in one case might not be reasonable care in another. Berry, Automobiles (2d Ed.) § 279, and cases cited. [4] There is a conflict in the testimony respecting whether the defendant sounded the horn of the automobile at or about the time he crossed the street car track. Under the circumstances and facts of this case it is immaterial whether such alarm was given or not. The plaintiff was a little girl not yet five years of age. The ordinary child of that age could neither appreciate nor understand the object sought or the reasons for giving such warning. If it made any impression at all upon her mind, she probably accepted it as for her amusement rather than anything else; in other words, we regard the fact as to whether defendant sounded the horn as im material. It would in no way relieve the defendant of the charge of negligence, if he was negligent in going forward after he observed the child crossing the street, nor would it charge the plaintiff with contributory negligence. It follows that the judgment of the district court must be reversed, and a new trial granted. Such is the order; appellant to recover costs. CORFMAN, C. J., and FRICK, WEBER, and THURMAN, JJ., concur. (56 Utah, 519) GEO. A. LOWE CO. et al. v. INDUSTRIAL (Supreme Court of Utah. June 29, 1920. Rehearing Denied July 15, 1920.) Evidence 1. Master and servant 405 (5) held to show dependency within Compensation Law. In a proceeding for compensation claimed by father and mother of deceased servant, evidence held to establish the partial dependency of the claimants within Laws 1917, c. 100, as amended by Laws 1919, c. 63. 2. Master and servant ~417(7)—Finding of dependency within Compensation Law conclusive. The decision of the Industrial Commission is conclusive on the question of dependency of claimants awarded compensation for the death of a servant, where sustained by some substantial testimony. 3. Master and servant 416-Compensation award not invalidated by failure to find daily wage. Claimants having established partial dependency on deceased servant under Laws 1919, c. 63, amending Comp. Laws 1917, § 3140, subd. 3, an award based on the average weekly wage was not invalid because the commission failed to make a finding as to amount of the daily wage, especially where under the evidence the only finding that could have been made would justify the award. |