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Haet, C. J.,
(after stating the facts). It is earnestly contended by counsel for appellant that the circuit court erred in refusing- to continue the case on account of the illness of one of his attorneys. The record shows that both of the attorneys for the defendant represented him at his examining trial. After the indictment was found, the case was set for trial at an adjourned term of court. Both of his attorneys were present, but one of them represented that he was ill with appendicitis, and had been in bed all the day before. The court refused to continue the case, and both the attorneys actively participated in the trial. The record shows that the defendant was ably and skillfully represented at the trial, and that no injury resulted to him on account of the illness of one of his attorneys. Under these circumstances it cannot he said that the circuit court abused its discretion in overruling’ the defendant’s motion for a continuance. Holmes v. State, 144 Ark. 617, 224 S. W. 394, and G. H. Robinson Co. v. Hudgins Produce Co., 138 Ark. 500, 212 S. W. 305.
It is next contended that the court erred in permitting- Jim Patterson to testify that, immediately after they left the scene of the shooting, Minor Patterson beg-an to pray for the defendant, Horace Adcock. Witness said that they had not gone a hundred yards when the praying commenced. The record shows that, when objection was made to the testimony, the court stated that he would overrule the objection for the present. The witness drove home with his'uncle, and telephoned for a doctor. The physician came, and at once carried Minor Patterson to a hospital at Texarkana. At about 7 :30 o’clock in the evening the deputy prosecuting attorney came and took down his dying statement, after Patterson had declared that he knew he was going* to die. He did die the next morning at about 7:30' o’clock. The physician who attended him testified that he was shot on the right side, between the eighth and ninth ribs, and that the bullet lodged in the muscle. The physician said that the bullet was calculated to produce death. It is within the province- of the court to hear the circumstances under which the alleged dying declarations were made and to determine whether they are admissible. After they are made, it is within the province of the jury to weigh them and the circumstances under which they were made, and-give them such credit upon the whole evidence as they may think they deserve. Jones v. State, 88 Ark. 579, 115 S. W. 166; Robinson v. State, 99 Ark. 209, 137 S. W. 831; Rhea v. State, 104 Ark. 162,147 S. W. 463; Stewart v. State, 148 Ark. 540, 230 S. W. 590; and Lowmack v. State, 178 Ark. 128, 12 S. W. (2d) 909.
In these cases the court has held that the inference that the declarant was under a sense of certain and speedy death may not only be found from what the de-clarant stated on the subject, hut also' from the character of the wound itself and the fact that he died within a short time, in connection with the other attendant circumstances.
In the first place, the trial court admitted the testimony of the witness to the effect that the deceased had prayed for the defendant without first ascertaining whether the proper foundation had been laid for admitting the testimony as a dying declaration, but that this ruling- was temporarily made. The record shows that soon thereafter the trial court did hear testimony on this point, and made an affirmative finding to the effect that a proper foundation for a dying declaration had been laid. He did not rule out the testimony referred to, and it is fairly inferable that he considered it admissible as a dying- declaration. It was admissible for that purpose as a declaration showing the state of mind of the deceased to the defendant at the time of the shooting. Hence we do not think that the court erred in admitting this testimony;
It is next insisted that the court erred in allowing witnesses to testify that, on the next day after the shooting, they examined the scene, and allowed them to describe the condition of the ground with reference to the wagon tracks across the road and tracks of the team hitched to the wagon. It is claimed that, the shooting-having occurred on a public road, the condition of the ground easily changed, and that the testimony could shed no light as to the appearance of the ground at the time of the shooting. This was a matter for the jury. The evidence showed that the shooting occurred on a country road which was not traveled much. The jury was the judge of the credibility of the witnesses, and could tell from their descriptions of the ground whether or not there had been sufficient passage of other teams and vehicles to materially change the condition of the ground from that which existed at the time of the shooting.
It is next insisted that the court erred in admitting the oral testimony oí the witness Cook as to the dying declaration, which had been reduced to writing. It is insisted that the written declaration is the best evidence. The court only admitted the testimony of Cook to show that the dying declaration was made, written down, and signed by the deceased at a time when he thought he was going to die, and that his death was immediate and impending. Under the authorities above cited, the testimony of Cook was necessary to lay a proper foundation for the dying declaration.
It is next insisted that the court erred in allowing Dr. Allen to testify as to the location of the bullet, because an X-ray picture had been made, and the X-ray photograph would be the best evidence of the location of the bullet. We do not agree with counsel in this contention. The physician had practiced medicine for more than twenty years, and was competent to testify not only as to the location of the wound, which, he could do from actual observation, but also as to the location of the bullet, which he could know by probing in the wound. The X-ray photograph would only show the location of the bullet. If the body of the deceased 'showed no place of exit of the bullet, it was necessarily lodged somewhere within the body. The exact location was not material, because the point of entrance could be observed, and the physician testified that the wound was calculated to produce death, and it actually did produce death on the next-morning after the deceased was shot. Hence no‘prejudice could possibly have resulted to the defendant from the admission of this testimony.
Finally, it is insisted that the court erred in giving State’s instruction No. 9, which reads as follows:
“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless, by proof on the part of the prosecution, it is sufficiently manifest that the offense only amounted to manslaughter,.or that the accused was justified or excused in committing the homicide, provided you find from the evidence on the whole case, beyond a reasonable doubt, that the defendant is guilty.”
In this connection it may also he said that the court gave the defendant’s instruction No. 6, which reads as follows:
“In this case the killing is admitted, and the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless, by proof on the part of the prosecution, it is sufficiently manifest that the offense only amounts to manslaughter, or that the accused was justified or excused in committing the homicide; and you are further instructed, however, that upon the whole case the burden is on the prosecution to establish defendant’s guilt beyond a reasonable doubt. ’ ’
It is insisted that the instructions are conflicting. We do not think so. The killing was admitted by the defendant while he was on the stand, and his theory was that it was done in necessary self-defense. The court properly gave to the jury § 2342 of Crawford & Moses’ Digest, and qualified it by telling the ,jury*that the burden of the whole case rested upon the State. The fact that the defendant admitted the killing, and that it was established by the undisputed proof to have been done by the defendant, did not relieve the State from establishing the guilt of the defendant by evidence beyond a reasonable doubt, because in any event the burden of proof on the whole case rested upon the State. Tignor v. State, 76 Ark. 489, 89 S. W. 96; Parsley v. State, 148 Ark. 418, 230 S. W. 587; and Sheppard v. State, 160 Ark. 315, 254 S. W. 657.
We find no reversible error in the record, and the judgment is therefore affirmed. | [
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Humphreys, J.
This is an appeal from a judgment of $50 obtained by appellee against appellant in the circuit court of Lawrence County, Western District, on appeal from the court of a,.justice of the peace, for killing his dog, in February, 1928, by negligently running over him with an extra freight train, On its sidetrack in Black Rock, Arkansas.
Appellant contends for a reversal of the judgment upon the ground that the statutory presumption of negligence on its part, arising on account of the dog being found dead on its track, was overcome by the undisputed testimony of its witnesses. At the conclusion of the testimony appellant requested an instructed verdict in its favor, upon the theory advanced now for a reversal of the judgment, which was refused by the court, over appellant’s objection and exception.
The dog was found after daylight on the morning of February 28, 1928, lying on the sidetrack paralleling the main track, which ran north and south through Black Rock. His head was lying inside of the east rail and his body opposite the head on the outside thereof. His head had been severed from his body, and there was nothing about the body or head to indicate that he had been struck by the cow-catcher, or dragged from the place where killed. Only one train, an extra freight train No. 4015, entered and left the sidetrack during the preceding night. This train entered the sidetrack about 1:30 o’clock a. m. for the purpose of allowing a fast freight train, No. 135, to pass on the main line, and left, proceeding northward, immediately after the fast train passed. The .enginemen operating the extra freight testified that the headlight to their engine was on and the bell ringing, and that they were keeping a lookout as they headed into as well as when they pulled off the sidetrack, and that they did not see a dog or strike one with any part of the engine. They also testified that it would have been impossible for the fast southbound freight train to have struck and thrown the dog under the train standing on the sidetrack and to have left him in the position he was found.
There is no conflict in the testimony, as we read it, and the only conclusion that can be reached from a consideration thereof is that the dog was killed while trying to pass under the extra freight train, either while entering or leaving the sidetrack. The statutory presumption of having negligently killed the dog was overcome by the undisputed proof, and the trial court should have instructed a verdict for appellant. Chicago Rd. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15; Fowler v. Hammett, 162 Ark. 307, 258 S. W. 392.
On account of the error indicated the judgment is reversed, and the cause is dismissed. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in 'the circuit court of Pike County for the crime of murder in the second degree, for wounding Austin Cox with a knife, on the 5th day of May, 1928, from the effects of which he died on the 7th day of May, 1928, and was adjudged to serve a term of five years in the State Penitentiary as a punishment therefor, from which is this appeal.
Among the assignments of error urged by appellant for a reversal of the judgment was the refusal of the trial court to allow him to introduce in evidence several judgments of conviction for felonies committed by the deceased, Austin Cox, as affecting the credibility of his dying declarations relative to the difficulty and resultant tragedy, which the State introduced in evidence. It is provided in § 41*87 of Crawford & Moses’ Digest that a witness may be impeached by the introduction of a judgment showing' his conviction of a felony.
Under the rules of evidence in this State, dying declarations are treated as other sworn testimony when introduced in evidence, and for that reason are subject to be impeached in the same manner as other testimony is impeached. Alford v. State, 161 Art. 256, 255 S. W. 884; Clark v. State, 163 Ark. 180, 259 S. W. 378. The trial court therefore committed reversible error in excluding the judgments of convictions for felonies of the deceased as affecting the credibility of his dying declarations which were introduced in evidence by the State.
In this connection the trial court also erred in excluding the testimony of Dr. W. W. Chamberlin, to the effect that the deceased was not in a dying condition when brought to the hospital, as tending to refute the testimony of the witnesses who testified that he made dying declarations to them before reaching the hospital concerning the difficulty and the wounds he had received at the hand of appellant. The question of whether the deceased made the statements to the several witnesses in view of impending death, was a question for the jury, in the last analysis, and his physical condition upon his arrival at the hospital was a circumstance which might aid them in determining that question. The testimony of the physician was admissible for that purpose.
Testimony was introduced by appellant tending to show that he inflicted the knife wound in the defense of his son.
Another assignment of error urged by appellant for a reversal of the judgment was the giving by the trial court of instructions 11, 12, 13 and 15, at the instance of the State, because it is alleged that they cut off the right of appellant to go to the defense of his son. The instructions do not have that effect, when read in connection with instructions numbered 16, 17 and 18 given by the trial court at the request of appellant. The first instructions complained of dealt with appellant’s right to defend himself, and the instructions which the court gave at appel lant’s instance dealt with his right to g'o to the defense of his son. There is no conflict whatever in the instructions, and when read together they present the whole law of self-defense correctly.
Another assignment of error urged by appellant for a reversal of the judgment is that the trial court told the jury, in instruction No. 27, that they might convict appellant for second degree murder without finding that the killing was done with malice. Instruction No. 27 was unhappily worded, but it is clear that the trial court did not intend in the use of the language in said instruction to tell the jury that there icould be a conviction of murder in the second degree without malice. He specifically instructed them, in instruction No. 1, that they must find the existence of malice in order to convict appellant of murder in the second degree. As the case must be reversed and remanded for a new trial for errors heretofore pointed out, we are sure the trial court will eliminate the alleged ambiguity in instruction No. 27. We would not reverse the case upon this alleged error alone.
Another assignment of error urged by appellant for a reversal of the judgment is that the trial court told the jury, in instruction No. 28, that it was appellant’s duty to retreat after being attacked before he could act in necessary self-defense. This instruction does not bear the interpretation placed upon it by appellant, when read as a whole. The first part of the instruction is a correct declaration of law, and it is apparent that the second part of the instruction was given in explanation of the first. It was unnecessary to have added the explanation to the instruction, but we do not think it in any way prejudiced the rights of appellant. Upon a new trial of the cause the explanatory feature of the instruction will doubtless be eliminated by the trial court.
Appellant' urges other objections to instructions given and refused by the trial court, which we think are untenable.
The judgment is reversed, and the cause is remanded for a new trial. | [
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Humphreys, J.
This is a petition filed by appellant in tbe circuit court of Lonoke county against appellee to off-set $3,000 which she received from its joint tort-feasor September 13, 1939, on a covenant not to sue its joint tortfeasor,' the Fischer Cement & Roofing Company. Appellant admitted its liability under said judgment of date February 8, 1940, for $5,000, but stated that it was entitled under the laws of the state of Arkansas to claim a credit by way of off-set on the judgment recovered against it for the amount paid by its joint tortfeasor of $3,000, in consideration for her covenant not to sue the said Fischer Cement & Roofing Company. Appellant was not a party to her covenant not to sue said Fischer Cement & Roofing Company. Appellant also admits-that it had knowledge of and knew that appellee had executed a covenant not to sue the Fischer Cement & Roofing Company before it filed its answer setting up its defenses in the suit brought by appellee to recover damages from appellant for negligently killing her husband, and that it never embraced in its answer the defenses of counter claim or set-off in mitigation of damages by reason of and on account of appellee executing a covenant to the Fischer Cement & Roofing Company not to sue it in consideration of $3,000.
The petition and answer thereto were presented to the trial court under a stipulation the gist of which was set out in the petition and a judgment was rendered denying the off-set of $3,000 against the $5,000 judgment, from which is this appeal.
A few additional facts reflected by the stipulation will be related to aid in a better understanding of .the case.
In the suit between appellee and appellant in which appellee recovered a $5,000 judgment of date February 8, 1940, each party filed a motion for a new trial, but neither appellee nor appellant obtained a ruling thereon so neither motion was granted nor denied and the time for appeal from the $5,000 judgment expired on August 9, 1940. The term of the Lonoke circuit court at which the $5,000 judgment was rendered adjourned and a new term began on September 2, 1940.
This petition asking for the credit or off-set on the $5,000 judgment of the $3,000 received by appellee from appellant’s joint tortfeasor on September 13, 1939, was filed on the 19th day of September, 1940.
Appellant contends that under the undisputed facts it was entitled, as a matter of law, to have the $5,000 judgment credited with the $3,000 appellee received from its joint tortfeasor even though it had not pleaded thé payment as a defense by way of counter claim or set-off. A complete answer to this contention is found in § 1416 of Pope’s Digest, which provides as follows:
“The answer shall contain:
u
“Third: A statement of any new matter constituting a defense, counter-claim or .set-off, in ordinary and concise language, without repetition.
“Fourth: In addition to the general denial above provided for, the defendant must set out in his answer as many grounds of defense counter-claim or set-off, whether legal or equitable, as he shall have.”
If the covenant not to sue were available for any purpose, it was by way of defense in mitigation of damages.
In the case of Gorman v. Bonner, 80 Ark. 339, 97 S. W. 282, this court said: “A defendant can not, under the Code system of procedure, let. judgment go against him at law upon a legal liability, and then enjoin the judgment in equity upon equitable grounds which were known before the judgment at law. The effect of the Code procedure has modified, and to a large extent rendered obsolete, the ancient jurisdiction of equity over judgments at law. The rule now is that parties must litigate the whole controversy in one action, and a defendant who has an equitable defense to an action at law is not now without a remedy against such action, for he can interpose such defense by answer or counterclaim, and, if necessary, have the case transferred to the chancery court. Kirby’s Digest, § 6098. If he fails to do this, and allows judgment at law to go against him, he may find that his defenses have been cut off by such judgment, and that he is without a remedy, either in law or equity. Reeve v. Jackson, 46 Ark. 272; Ward v. Derrick, 57 Ark. 500, 22 S. W. 93; Moore v. McCloy, 70 Ark. 505, 69 S. W. 311; Daniel v. Garner, 71 Ark. 484, 76 S. W. 1063.”
The court, also, said in the case of Interstate Jobbing Co. v. Velvin, 172 Ark. 212, 287 S. W. 1015, involving the same point involved in the instant case, that: “This new defense was in the nature of a plea of payment of a portion of the account for which defendant would otherwise he liable, and it is a rule of pleading well settled by the decisions of this court that where there is no plea of payment, proof thereof is inadmissible. Robinson v. Woodson, 33 Ark. 307. In the case of Jarvis v. Andrews, 80 Ark. 277, 96 S. W. 1064, it was held that evidence tending to prove payment of the note in suit was properly excluded in the absence of a plea of payment. See, also, Hays v. Dickey, 67 Ark. 169, 53 S. W. 887. Cases cited in the notes to 30 Cyc. 1253 and 21 R. C. L., pp. 115 and 117, show that this rule is one of general application.”
Appellant cites § 1250 of Pope’s Digest, but we do not think it applicable, for appellant admits that it knew of the covenant not to sue its joint tortfeasor before appellee obtained her judgment for $5,000 and admits that it did not set that up in the trial of the case in mitigation of its damages and we do not think appellant’s alleged right to a set-off is a claim within the meaning of § 1250 of Pope’s Digest.
Appellant does not contend that it was released from liability under and by virtue of the covenant not to sue executed by appellee to the Fischer Cement & Roofing-Company, but only contends that it is entitled to an off-set in mitigation of the judgment for damages against it. If it contended otherwise this court has already adjudged in the case of Altman-Rogers Co. v. Smith, 185 Ark. 100, 46 S. W. 2d 45, as follows:
“. . . The most it (the evidence) shows and the jury could have found it .shows is that appellee agreed for a consideration not to sue the Southwestern Bell Telephone Company.
“This court is committed to the doctrine that a covenant not to sue one of two joint tortfeasors does not operate as a release of the other from liability.”
No error appearing, the judgment is affirmed. | [
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George Rose Smith, Justice.
The appellant was employed by the appellee as a toolmaker and foreman for a total of about 21 years. He was discharged in 1984 for having allegedly accepted a $100 check in return for having ordered light bulbs for the appellee from a particular company, which sent him the check. Bryant brought this action against the appellee for damages for wrongful discharge and also for the outrageous but unspecified manner in which he was discharged. The appellee moved for summary judgment on the ground that the plaintiff had been an employee at will and could be discharged without cause. See Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982). The motion was denied.
Upon trial the appellee again asserted its position in a motion for a directed verdict, but the trial court let both causes of action go to the jury. The jury found for the plaintiff on the issue of wrongful discharge and awarded $65,000 in damages, but found for the defendant on the issue of outrageous conduct. The defendant reasserted its position in a motion for judgment notwithstanding the verdict. The trial court granted that motion and entered judgment for the defendant, holding that the court had made an error of law in permitting the jury to find that there was an enforceable contract of employment between the parties. The appeal was taken to this court as presenting a tort question.
The only argument for reversal is that the trial court should not have entered judgment n.o.v. on the basis of the employment-at-will doctrine.
The trial court’s action was correct. In the Griffin case, supra, we adhered to our settled rule that a contract of employment for an indefinite term is a contract at will, with either party having an absolute right to terminate the relationship at any time. Here Bryant introduced no substantial evidence that his employment was anything other than indefinite as to its duration. He submitted proof that in 1979, after he had been employed for many years, the company distributed an Employee Handbook which stated that after a probationary period of 60 days an employee would be entitled to all fringe benefits. The handbook also stated that certain conduct on the part of employees would not be tolerated, including dishonesty, cheating, willful negligence, theft, loafing during working time, and insubordination.
There was nothing in the handbook assuring any employee that he or she would be employed for a particular length of time or would be discharged only for cause. Hence this is not the type of case we had in mind in Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984), when we mentioned the possibility of modifying the common-law rule. Here the handbook did not alter that rule. Bryant offered nothing else to show that his employment was other than at will. Under the law the company had the absolute right to terminate Bryant’s employment at any time, just as he had the right to quit his job at any time. There was therefore no question of fact for the jury with regard to the asserted cause of action for wrongful discharge.
Affirmed.
Purtle, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Robert Orr, was convicted by a jury of first degree murder and sentenced to life imprisonment. It is from that conviction that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(b). We affirm.
Testimony at the trial indicated that appellant and the victim, Loretta Daniels, had been having an affair for several years. At about 1:30 a.m. on May 16,1984, Mrs. Daniels and her five-year-old daughter, Patty, were sitting in their car outside the entrance to the Mar-Bax Shirt Factory in Gassville, Arkansas. They were waiting for Bill Daniels, Mrs. Daniels’ husband, to get off of work when a pickup truck pulled alongside the car. A shot was fired from the truck which hit the car and then struck Mrs. Daniels on the top of her head, killing her. Later that morning, Orr and his wife and son arrived at the Mountain Home Police Department, where Orr turned himself in. He was transported to the Baxter County Sheriffs Office where he was given a Miranda warning and signed a rights waiver form. He then gave a statement confessing the shooting. Trace metal detection tests were performed on Orr with positive results. After a preliminary hearing, the trial judge ruled the confession and the trace metal test results were admissible.
The appellant’s first argument on appeal is that it was error to admit into evidence his statement because it was involuntary, and the trace metal detection tests, as they were performed without notification to Orr of his Miranda rights.
We independently review the totality of the circumstances surrounding a confession to determine whether an ac cused knowingly, voluntarily and intelligently waived his constitutional rights. Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984). Among the factors considered in determining the validity of a confession are the age, education, and intelligence of the accused, the advice or lack of advice of his constitutional rights, the length of detention, the repeated or prolonged nature of the questioning, or the use of mental or physical punishment. Id.
Applying this test, the appellant is 36. There is no specific testimony about his education or intelligence, but he testified that he had worked at Travenol Laboratories in Mountain Home for eight and one half years as an assembly worker in the needle department, and he wrote songs as a hobby. He also indicated he could read, since he stated during his testimony that he read his statement over before the trial. Orr was advised of his constitutional rights and signed a rights waiver form. He was detained about three and one half hours, an hour of which was spent setting up and conducting the trace metal test, and he was questioned twice, once informally before the trace metal test, and once after. There was no evidence of or testimony about mental or physical punishment.
The appellant bases his argument for exclusion of the confession on the fact that he was so upset at the time the statement was made that he did not fully understand his constitutional rights. In fact, the appellant testified that he did not even remember if he was read the Miranda warnings, nor did he remember signing the rights waiver form. Appellant also points to the testimony of the officers that some of his answers to questions were not responsive, and the fact that at the conclusion of the confession he refused to sign the statement and requested a lawyer, as evidence that he did not understand that he was giving testimony against himself.
The officer who read appellant his rights testified, however, that when he signed the rights waiver form and by the time the interview began, Orr “had settled down” and was not shaking anymore and was giving responsive answers.
Examination of Orr’s seven page statement reveals a step by step narrative of Orr’s activities on the evening in question and detailed information as to his relationship with the victim. Although he refused to sign this confession, he was asked by an officer if he wanted to make corrections. The officer testified that Orr did, and that both he and Orr placed their initials on the various pages where corrections appear. This scenario is sufficient to support a conclusion that the appellant’s statement to the investigating officers was given knowingly, intelligently and voluntarily.
The trial court found the appellant knowingly and intelligently waived his right to remain silent after being given the standard Miranda warnings. The court also found the confession was voluntary. The court recognized that there was evidence that at one or two points the appellant experienced rather substantial emotional upset but that there was not evidence indicating “the emotional upset occurred at the time that he was advised of his rights or even occurred during the interview. . . The Court can’t help but believe that [it was] a conscious and deliberate act on his part in giving that statement and that it was voluntary. That his present posturing of amnesia, the Court does not find particularly credible.”
When testimony as to the circumstances surrounding the taking of a confession is conflicting, it is for the trial court to weigh the evidence and resolve the credibility of the witnesses and we do not disturb the court’s finding unless it was clearly against the preponderance of the evidence. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983). The court’s decision was not clearly against the preponderance of the evidence. The confession was properly admitted.
The appellant’s contention that the results of the trace metal test should have been excluded is also without merit. Physical tests, such as the trace metal test, are not within the purview of the fifth amendment protection against self-incrimination. Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985).
The admission into evidence of state’s exhibits 1,5 and 19, all photographs, is next challenged by the appellant. He contends these three photographs have no substantial evidentiary value and unfairly prejudiced or inflamed the jury.
Exhibit 1 is a photograph of the back of the victim’s shaved head showing the wound area. The other two pictures show a portion of the victim’s skull and hair stuck to the car headliner. Exhibit 1 was used by Dr. Donna Brown, a forensic pathologist, to explain the wound received by the victim and the manner in which it caused her death. The question of admissibility of photographs lies largely in the sound discretion of the trial court. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982), rehearing denied. Even inflammatory pictures are admissible “if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony or to corroborate testimony.” Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980) (quoting Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979)). The photograph of the wound was permissible since it corroborated Dr. Brown’s testimony. Fuller v. State, supra.
Exhibits 5 and 19 were admitted into evidence without an objection by appellant as to unfair prejudice, thus this argument cannot be raised for the first time on appeal. Nevertheless, the trial judge did not abuse his discretion in admitting the pictures since they were used by investigating officers in their testimony to demonstrate where the bullet hit the car and deflected.
Appellant next contends that the statements made by 5-year-old Patty Daniels to the police were hearsay and were therefore inadmissible. Auxiliary Deputy Larry Haskins testified that he questioned Patty about what happened and she told him, “Yes this man shot my mommy.” She said a brown truck pulled up beside their car and her mother told the man to go home and she also said the man wore dark rimmed glasses. Patty told Deputy Sheriff Major McPherson that a man in a brown truck with dark framed glasses shot her mommy in the head.
Patty’s statements to the police were hearsay and it was error to admit them. They do not fall within the Unif. R. Evid. 803(3) exception governing statements of then existing states of mind, because that exception does not include “a statement of memory or belief to prove the fact remembered or believed.” Patty’s quoted declarations were inadmissible as they were statements of her memory about the past, not statements of an existing state of mind. State v. Abernathy, 265 Ark. 218, 577 S.W.2d 591 (1979).
Although we find that Patty’s comments to police officers should have been excluded, the trial court’s error was harmless. Before the police testimony was offered at the trial, seven witnesses testified without objection that Patty ran by after the shooting saying “somebody shot my mommy”. Patty was heard by one witness to say that a man pulled up in his truck and shot her. momma, and Bill Daniels, Patty’s father, testified she told him “Momma got shot” and “Robert done it daddy. Momma told him to go away, go home and leave me alone and he wouldn’t do it and he shot mommy.” The only new information given to the police by Patty was that the truck was brown and the man wore glasses. The fact that the pickup truck parked next to the victim’s car was brown was attested to by the other witnesses in the parking lot that night. Since the same evidence was introduced by other witnesses and was properly before the jury for its consideration, it was harmless error to allow the officers to testify as to Patty’s statements to them. See Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). The appellant also claims Patty’s statements were inconsistent. That, however, was a matter for the jury to resolve when it weighed the credibility of the witnesses.
The final two issues raised by appellant are that the court erred by limiting testimony about statements made by Loretta Daniels to Patsy Gwenn Estes on the night of the shooting concerning her relationship with appellant, and by not allowing defense counsel to explore the history of that relationship.
As to the first limitation on testimony, appellant stated that Ms. Estes would have testified that on the night of the shooting, the deceased had a date with the appellant but later made a second date with a man named Bill and was going to break the date with appellant. This information, according to appellant, would have corroborated his testimony. The court ruled that the defense could elicit statements from Ms. Estes that “the decedent said that she was supposed to meet Robert that night and that she was wishing to avoid meeting Robert that night.” That is substantially what Ms. Estes said in her testimony. Inasmuch as the appellant was allowed to inquire into the subject he indicated a desire to pursue, no error was committed.
We need not reach the second limitation on testimony claimed by appellant. He argues that he was denied the opportu nity to explore the relationship between appellant and the decedent, but he did not proffer the evidence he would have presented. We have held that “where error is assigned in the refusal of the court to hear testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial.” Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975), (quoting Latourette v. State, 91 Ark. 65, 120 S.W. 411 (1909)). Here, the appellant did present testimony by several parties that the appellant and Loretta Daniels were apparently having an affair. Without knowing what additional testimony was refused, we cannot address its exclusion.
Pursuant to Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Sup. Ct. R. 11(f) we have reviewed all objections brought to our attention in the abstract and briefs. We find no prejudicial error.
Affirmed.
Purtle, J., not participating. | [
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Steele Hays, Justice.
Phillip Vance was convicted of aggravated robbery and theft of property in connection with the January 18,1985 robbery of a Little Rock branch bank. On April 1,1985 the circuit court noted that the defense of mental disease or defect might be raised and ordered that Vance be examined at the Pulaski County jail by a psychiatrist then under contract to provide psychiatric services at the jail. The order directed the examining psychiatrist to notify the court of the defendant’s fitness to proceed and the requirements of further psychiatric examination if necessary.
On April 6 the psychiatrist responded on a form stating that he had conducted a psychological competency screening of Phillip Vance to determine competency, with the following result:
“ X not with psychosis and competent to stand trial.”
At a later hearing the public defender asked the court to order an additional evaluation in view of information that Vance had been discharged from the Navy with mental disability, had been hospitalized in San Francisco, for mental problems, had had an injury of some kind to his head requiring surgery, and had been discharged from the Arkansas State Hospital on January 17, 1985, the day before the robbery from which these charges arose.
The court declined to order any further screening and the jury found Phillip Vance guilty, rejecting testimony by a psychiatrist who examined Vance at the Arkansas State Hospital in January, 1985, and had diagnosed him as having a psychotic illness — chronic schizophrenia, paranoid type, with acute exacerbation. Concurrent sentences of thirty years for aggravated robbery and twenty years for theft of property were imposed.
Vance has appealed on the premise that his due process rights were violated by the trial court’s failure to order a forensic psychological evaluation. We think the argument must be sustained.
Ark. Stat. Ann. § 41-605 provides that when the court has reason to believe mental disease or defect of the defendant will become an issue, or there is reason to doubt the defendant’s fitness to proceed, the court shall order that the defendant undergo examination by one or more qualified psychiatrists at a local regional mental health center or clinic, or shall appoint at least one qualified psychiatrist to make an examination and report on the defendant’s mental condition, or shall commit the defendant to the Arkansas State Hospital, or other suitable facility, for an examination for thirty days, or such longer period as the court deems necessary. The statute provides for such further examination and observation as may be warranted.
The report required by the statute “shall include the following: (a) a description of the nature of the examination; (b) a diagnosis of the mental condition of the defendant; (c) an opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense; (d) an opinion as to the extent, if any, to which the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired at the time of the conduct alleged [.]”
The report in this case told the court virtually nothing and was palpably in noncompliance with the statute. In light of the insufficient report, coupled with Vance’s history of mental illness, further observation and examination as contemplated by the statute should have been ordered.
Reversed and remanded.
Purtle, J., not participating. | [
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George Rose Smith, Justice.
Mellie Nichols Deal, 88, a resident of Monticello, died testate in April, 1984, survived by two sons, the appellants, and two daughters, the appellees. The bulk of the estate, consisting of certificates of deposit and other liquid assets valued at about $125,000, was left equally to the testatrix’s four children and presents no problem. Two disputes, however, have arisen with respect to the testatrix’s furniture, household goods, and other personal effects.
First, in a paragraph to be quoted in a moment, the will left all such articles of tangible personal property to the two daughters as trustees, to be appropriately distributed by them among the four children. The sons questioned the validity of that trust, as being too indefinite to be enforceable. The probate judge held that the trust is valid, but that the discretion vested in the trustees “is not subject to control by any person or court.” The sons appeal from that decision, bringing the case to this court under Rule 29(l)(p).
Second, Martha Deal Huddleston, executrix of the will, filed a petition alleging that her two brothers had wrongfully taken various articles belonging to the estate, claiming ownership. She asked that the brothers be directed to return the property. The trial judge held that the probate court had no subject-matter jurisdiction of that petition, which was dismissed without prejudice. The executrix cross appeals from that decision. No proof has been submitted on either issue.
We first consider the validity of the trust. The paragraph creating the trust reads as follows:
Specific Bequest of All Household Goods and Personal Effects. I bequeath to my two daughters, Martha Deal Huddleston and Melanie Elizabeth Deal Dwyer, or to the survivor of them, as trustees and in trust, for the uses and purposes, with the authority and subject to the responsibilities and duties hereunder stated, all of the household furniture, appliances, fixtures, equipment, and all bedding, linens, tableware, silverware, china, cut-glass, vases, and other articles of household utility or adornment, and all wearing apparel, pictures, jewelry and other personal effects, owned by me at the time of my death. My two daughters, as trustees, shall be vested with the authority, and charged with the duty and responsibility, to distribute my household goods and personal effects among my surviving children (including my two daughters, also including the heirs of the body of any child of mine who shall have predeceased me) in such manner as my daughters, in the exercise of their own best judgment and discretion, consider to be most appropriate, fair, just and equitable, having due regard for any memoranda which I may leave indicating my wishes as to who shall have particular items of my household goods and personal effects.
The appellants, citing a number of cases and other authorities, argue that the proposed trust is too indefinite to be enforced by a court and involves an impermissible conflict of interest in that the two sisters have asserted they have the authority to distribute all the property to themselves if they wish. The trial court sustained the sisters’ position.
It is fundamental that when discretion is conferred upon a trustee with respect to the exercise of a power, a court may act to prevent an abuse of that discretion. Restatement of Trusts 2d, § 187 (1959). We have often recognized the authority of the chancery court to supervise a trustee’s conduct. Bieatt v. Echols, 181 Ark. 235, 35 S.W.2d 431 (1930), citing earlier cases. We have not considered the situation now presented.
Elsewhere, a few cases have arisen in which, as here, one or more trustees have been given the discretionary power to distribute trust property among the members of a group that includes the trustees. The courts have almost invariably upheld such trusts, but have taken steps appropriate to the particular case to avoid adverse results from the conflict of interest. In some instances the superintending court has substituted its own discretion for that of the trustee. In Re Peabody’s Will, 277 App. Div. 905, 98 N.Y.S.2d 614 (1950); Armington v. Meyer, 103 R.I.211, 236 A.2d 450 (1967). In other circumstances the appointment of a cotrustee or a new trustee has been found to be proper. Rogers v. Rogers, 111 N.Y. 228, 18 N.E. 636 (1888); Estate of Kagan, 118 Misc.2d 1084, 462 N.Y.S.2d 128 (1983).
As is always the rule in the interpretation of a will, we must if possible give effect to the intention of the testatrix. It will not do for us to adopt either of the courses chosen in the above cases, displacing the trustees, for here Mrs. Deal unquestionably meant to have the benefit of her daughters’ best judgment in the matter. For the same reason we reject a suggestion made by the appellants, that the articles be sold and the proceeds divided. That sort of disposition is exactly what the testatrix wanted to avoid.
On the other hand, Mrs. Deal did not mean for her daughters to take all the articles themselves or to make an arbitrary distribution, for she expected the division to be “appropriate, fair, just and equitable.” We think the most sensible solution is for the appellees to put down in writing, within a reasonable time to be fixed by the trial judge if necessary, just what articles they propose to award to each of the four heirs. The appellants must then be given an opportunity to present their specific objections, with the points of disagreement to be submitted to the probate court if the brothers and sisters are not able to reach an agreement. We realize that all four are nonresidents, living in four other states, but that is a difficulty they must overcome.
The will directs the trustees to have “due regard” for any memoranda the testatrix may leave indicating her wishes. That language is not mandatory, but her wishes should have much weight. The appellants argue that no such memorandum made after the execution of the will can be effective. That was formerly our rule, but in 1979 the legislature approved the use of signed memoranda, with certain restrictions. Ark. Stat. Ann. § 60-419 (Supp. 1985). Whether any such memoranda were left by Mrs. Deal is for the trial court to decide if the issue is disputed. A memorandum was attached to the inventory, but the signature in the margin has not been verified.
The cross appeal concerns the trial court’s disclaimer of jurisdiction to determine the ownership of articles assertedly taken by the appellants, at least some of which they claim to have owned before their mother’s death. For a long time there was uncertainty in our statutory and case law about the jurisdiction of the probate court to determine questions, arising in administration proceedings, with respect to the ownership of personal property. In Snow v. Martensen, 255 Ark. 1049, 1056, 505 S.W.2d 20 (1974), we discussed several of our pertinent decisions and concluded that “the better rule would be that the probate courts do have jurisdiction to determine the ownership of property ... as between personal representatives claiming for the estates and heirs or beneficiaries claiming adversely to the estates.” More recently, in Keenan v. Peevy, 267 Ark. 218, 233, 590 S.W.2d 259 (1979), we echoed the statement in Snow that “the better rule” is for the probate courts to have that jurisdiction. As a practical matter it is plain that the dispute should be determined in one court, not in two. We accordingly adopt without equivocation this better rule and recognize that the probate court’s jurisdiction should and does exist.
Reversed on direct and cross appeal and remanded.
Purtle, J., not participating. | [
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Robert H. Dudley, Justice.
Appellant, Darrell H. Pope, contends that his one-fourth mineral interests are not leased and seeks an accounting from appellee, the owner of the working interest in a producing oil well, for all oil and gas sold. The Chancellor dismissed the petition for an accounting. We affirm.
The mineral interests at issue are under 70 acres of land in Columbia County which were owned by appellant’s father, A.G. Pope, who died intestate on July 11, 1965. Surviving A.G. Pope were his widow, Jupe O. Pope, and their four children; appellant, Jerry Bertie Duke, Gertrude Rolaine, and Garland Pope.
In 1956, nine years before his death, A.G. Pope and his wife, Jupe O. Pope, conveyed 30 of the 70 acres to one of their daughters, Gertrude Rolaine, and they then conveyed the other 40 acres to their other daughter, Bertie Duke. Both deeds contained out of the ordinary clauses which provided the conveyances were to be effective at the death of the grantors and that the grantors reserved the right to sell minerals under the land, to receive bonus money, to receive delay rentals, and to have control of the land for their natural lives.
Bertie Duke did not file her deed for record until July 14, 1965, three days after A.G. Pope’s death. Gertrude Rolaine did not file her deed for record until November 8,1965. On June 20, 1968, two and one-half years after recording the deed, Jupe Pope and Bertie Duke executed an oil and gas lease of the 40 acre tract to the appellee oil company for a term of two years. On July 2, two weeks later, Jupe Pope and Gertrude Rolaine executed an identical oil and gas lease to appellee on the 30 acre tract. Just before these initial leases expired, in mid-summer 1970, the same lessors executed renewal leases on the two tracts. The renewal leases were for a primary term of three years.
On October 17, 1971, appellee commenced drilling and on December 5,1971, completed a producing oil well. In June 1973, Jupe O. Pope and all of the heirs, including appellant, signed a division order which authorized the payment of all royalty to Jupe O. Pope for her lifetime and, in addition, provided:
THIRD: We, the undersigned, do hereby agree that all of Pennzoil Producing Company’s leasehold covering the above described tracts are in full force and effect and we do hereby adopt, ratify and confirm each of Pennzoil Producing Company’s leases covering these tracts and provided Pennzoil pays royalties in the proportions set out, same will be maintained in full force and effect.
Jupe O. Pope died on July 31,1979. Appellee Pennzoil then filed a bill of interpleader in order to determine to whom the royalty should be paid. Appellant filed a counter claim asserting that the 1956 deeds from A.G. Pope and wife to Bertie Duke and Gertrude Rolaine were ineffective to pass title. The Chancellor held that there was no delivery of the deeds and, in addition, they were intended as a will, but did not meet the statutory requirements of a will. The trial court did not decide the validity of the leases to appellee at that time, but decreed that the parties could maintain a separate action concerning the validity of the leases. In 1981, appellant filed the petition in the suit now before us, contending that his one-fourth interest in the 70 acres, which he obtained as a result of the failure of the deeds, is unleased and prayed for “an accounting of all oil and gas sold since date of first production and that all of said monies derived therefrom after pro rata cost of production be paid over to him. . . .” The appellee responded that it was a bona fide purchaser, that appellant was estopped by the ratification of the leases contained in the division order, and that appellant was barred by the combined doctrine of laches and stale demand. The trial court found each of appellee’s defenses was well taken.
The appellant contends that the trial court erred in applying the doctrine of laches to estop him from claiming his one-quarter interest back to the date of first production. The Chancellor was correct.
We have consistently held that oil and gas properties are unusual and require diligence on the part of parties claiming a property interest. Walker-Lucas-Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S.W. 836 (1925). In Sanders v. Flenniken, 180 Ark. 303, 21 S.W.2d 430 (1929), this court cited with approval the following language from Patterson v. Hewitt, 195 U.S. 309 (1904):
There is no class of property more subject to sudden and violent fluctuations of value than mining lands. A location which today may have no salable value may in a month become worth millions. Years may be spent in working such property, apparently to no purpose, when suddenly a mass of rich ore may be discovered from which an unusual fortune is realized. Under such circumstances, persons having claims to such property are bound to the utmost diligence in enforcing them, and there is no class of cases in which the doctrine of laches has been more relentlessly enforced.
In Sanders we continued discussion of the concept as follows:
From these citations it will be seen that this court, as well as the Supreme Court of the United States, has uniformly recognized that, on account of the fluctuating and uncertain values of oil and gas lands, parties asserting title thereto must act more promptly than in ordinary cases in which the values remain practically the same.
Of course, it is equally well-settled that, when the question of laches is an issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence.
Here, the deeds which purported to convey the mineral interests under the 70 acres were recorded in 1965. At that time no oil had been discovered in the drilling unit. The initial oil and gas leases were executed in 1968 and renewed in 1970. Appellant had actual and constructive notice of these leases. Appellee, the owner of the working interest, spent large sums of money drilling from October to December 1971. Production commenced in December 1971. Appellant personally observed the drilling, the erection of the tanks, batteries, pumping units, and the laying of the pipelines. Still, he silently stood by and made no claim until December 1981, thirteen years after the initial leases had been executed, ten years after production had begun, and ten years after the value of the leases had dramatically increased. The Chancellor sagaciously noted:
Due to the risks involved in the exploration for and production of oil and gas, I find that the Plaintiff [appellant] should be barred by the doctrine of laches as to any claim at this time to his allegedly unleased mineral interest. No doubt had production ceased before the well paid out the Plaintiff certainly would make no claim to a working interest and share in the cost of drilling, but would only seek payment for his Vs royalty.
The Chancellor was correct. The appellant is barred by the doctrine of laches.
The Chancellor additionally applied the doctrine of estoppel because appellant had expressly ratified the leases. Appellant also argues that the Chancellor erred in applying estoppel for this reason.
The division order, approved by appellant’s attorney and executed by appellant in 1973, provides that appellant does “adopt, ratify, and confirm each of Pennzoil Producing Company’s leases. . . .” Normally, a division order will not constitute a conveyance of an interest in the land, minerals, or other interests. However, under some circumstances one who signs a division order may be estopped to deny that the stipulation of interests in the order is correct. 4 Williams & Meyers, Oil & Gas Law § 707 (1985). Here, appellant, the non-leasing concurrent owner, expressly ratified the leases to appellee. Absent fraud or misrepresentation such express ratification is effective to bind appellant. See, e.g. American Refining Co. v. Tidal Western Oil Corp., 264 S.W. 335 (Tex. Civ. App. 1924); 4 Williams & Meyers, Oil & Gas Law § 708 (1985). Under these conditions, detrimental reliance is not essential. Texas & Pacific Coal & Oil Co. v. Kirtley, 288 S.W. 619 (Tex. Civ. App. 1926).
Appellant tacitly acknowledges that he acquiesed in the leases but argues that they only affect his one-fourth of the one-eighth royalty interest before his mother’s death. From that basis, he argues that he did not ratify the working interest and therefore, he is entitled to an accounting of the seven-eighths working interest for his one-quarter interest in the land. The argument is without merit. When one executes or ratifies an oil and gas lease to another person in exchange for a one-eighth royalty interest, or some part thereof, he agrees to the seven-eighths interest being held by someone else. Therefore, the appellant is estopped to deny that the stipulation of interests in the division order is correct.
The Chancellor held that, in addition, the appellee had good title as a bona fide purchaser of the leasehold interests without notice. The appellant contends the ruling was in error. Since we have already upheld the ruling on the basis of the two forms of estoppel we need not discuss this assignment of error.
Appellant additionally argues that appellee will be unjustly enriched if we uphold the Chancellor. Again, the argument is without merit. Appellee spent all of the money and took all of the risk to drill and complete the well. Appellant assumed none of that risk and did not offer to pay his pro rata share of drilling until 10 years after the well was completed. There is no unjust enrichment to appellee.
Affirmed.
Purtle, J., not participating. | [
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James R. Cooper, Judge.
First National Bank and Trust Company of Rogers, Arkansas (First Rogers) and First National Bank of Siloam Springs, Arkansas (First Siloam) brought an action against Northwest National Bank (Northwest) on a $409,000.00 letter of credit, dated April 15, 1983, issued by Northwest to First Rogers. Northwest filed a third-party complaint against City National Bank of Fort Smith, Arkansas (City National), alleging that City National had participated in the letter of credit to the extent of $309,000.00, and asking that the letter of credit be reformed to reflect City National’s liability in the amount of $309,000.00, and Northwest’s liability in the amount of $100,000.00. After a trial, it was ordered that First Rogers and First Siloam have judgment against Northwest in the amount of $409,000.00, plus interest and costs, and that Northwest have judgment against City National for $309,000.00, plus interest and costs. From that decision, comes this appeal.
The evidence shows that the letter of credit arose out of a project initiated by Thomas Comley. In 1983, Comley formed the Shadyridge Limited Partnership in order to build and operate an apartment project. The construction of the project was financed by housing bonds issued through First Rogers. One of First Rogers’s loan requirements was for Shadyridge to obtain a letter of credit in the amount of $409,000.00 for the benefit of First Rogers. Shadyridge obtained the $409,000.00 letter of credit from Northwest on April 15, 1983. City National agreed to participate in the letter of credit to the extent of $309,000.00. The terms of City National’s participation were set out in a letter of commitment issued from City National to Northwest on April 13,1983. City National’s letter of commitment set forth several conditions upon which its participation was based, including the conditions that Northwest would have a second mortgage on the then-unbuilt apartment complex, and that Northwest would have a security interest in the Raspberry note, a contract of sale between M. O. Raspberry and Thomas Comley.
On August 16, 1984, First Rogers assigned a $329,000.00 participation in the letter of credit to First Siloam, and Northwest acknowledged notice of the assignment. Whether Northwest effectively notified City National of the assignment is a subject of dispute; the chancellor found that, at some point, City National received a copy of the assignment. Between December 27,1984, and March 15,1985, First Rogers advanced $80,000.00 under a note secured by the $409,000.00 letter of credit. Between August 27, 1984, and August 28, 1984, First Siloam advanced $329,000.00 under a note which was also secured by the letter of credit. Whether these advances were made to Thomas Comley personally, or to Comley as agent for Shadyridge, is disputed on appeal.
In October 1984 Comley pledged the Raspberry note to Mcllroy Bank and Trust Company of Fayetteville, Arkansas, as security for a $324,000.00 letter of credit which otherwise is unrelated to the issues in the case at bar. In April 1985, Thomas Comley and Fran Sabbe, an employee of Northwest, met with George Beattie, the loan officer for City National who was handling the Shadyridge account. They discussed extending the expiration date of the letter of credit to December 31,1985, and the release of the Raspberry note as collateral for the letter of credit. They agreed to extend the letter of credit’s expiration date. The appellant, City National, denies that Beattie agreed to release the Raspberry note as collateral. The appellee and cross-appellant, Northwest, asserts that Beattie did authorize Northwest to release the note as collateral. It is undisputed that Northwest did in fact release the Raspberry note on May 9,198 5.
On August 21, 1985, First Rogers made a written demand upon Northwest under the $409,000.00 letter of credit, and subsequently added City National’s name to the demand at the request of Northwest. Northwest offered to pay First Rogers $100,000.00 on the letter of credit in exchange for a release, but First Rogers refused. City National subsequently denied liability on its participation in the letter of credit and refused to pay. With both Northwest and City National refusing to fully honor the letter of credit, First Rogers and First Siloam filed the action which gave rise to this appeal.
For reversal, the appellant, City National, contends that Northwest failed to prove that City National agreed to release the Raspberry note as collateral; that any agreement by City National to release the Raspberry note is void for lack of consideration; that First Rogers’s assignment of a $329,000.00 interest in the letter of credit to First Siloam had the effect of releasing City National from its obligation; that Northwest’s release of the Raspberry note as collateral released City National from liability; that the chancellor erred in excluding the testimony of Tom Reed, a witness called by City National; and that the chancellor erred in permitting Fran Sabbe to testify concerning an oral modification of the written letter of commitment which set forth the terms of City National’s participation in the letter of credit.
The appellee and cross-appellant, Northwest, disputes City National’s contentions and additionally argues that the chancellor erred in failing to find that no demand on the letter of credit was made on Northwest by First Siloam; that a condition precedent to First Rogers’s and First Siloam’s right to demand payment of the letter of credit did not exist; that the chancellor erred in failing to find that Northwest’s issuance of the letter of credit in the amount of $409,000.00 was unenforceable as an illegal contract; and that the chancellor erred in awarding thirteen percent interest.
We first address the points for reversal advanced by the appellant, City National. The appellant initially contends that Northwest failed to prove that City National agreed to the release of the Raspberry note as collateral. Citing APCO Oil Corp. v. Stephens, 270 Ark. 715, 606 S.W.2d 134 (Ark. App. 1980), the appellant argues that clear and convincing evidence is required to prove an oral modification to a written agreement, and asserts that Northwest did not present clear and convincing evidence that City National consented to the release of the Raspberry note. Although the appellant correctly states that an oral modification of a prior written contract must be established by clear and convincing evidence, Freeman v. Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987), a requirement that the evidence be “clear and convincing” does not mean that the evidence must be uncontradicted. Freeman, 20 Ark. App. at 15.
The evidence in the case at bar shows that, on April 4,1985, Thomas Comley, Fran Sabbe of Northwest, and George Beattie of City National met to discuss the extension of the letter of credit’s expiration date to December 31,1985, and the release of the Raspberry note as collateral. At this meeting, Comley asked Beattie to release the note, and told him that there was enough equity in the apartment complex to secure the debt. Because the release of the note would leave only a second mortgage on the apartment complex as collateral, Beattie indicated that he would need to see the apartments and review his file before agreeing to release the note. Fran Sabbe telephoned Beattie several times during April 1985 to discuss the extension of the letter of credit and the release of the collateral. Beattie viewed the apartment complex on May 1,1985, and was favorably impressed with the project, which was by then virtually complete.
The most significant point of divergence in the testimony of the witnesses centers upon a conversation between Sabbe and Beattie that took place on May 8 or 9,1985. Sabbe testified that Beattie agreed to extend the letter of credit until December 31, 1985, and that Beattie made no objection when Sabbe stated that it was her understanding that the extension would be secured only by the second mortgage on the project. Sabbe followed up this conversation with a letter to Beattie dated May 10,198 5, in which she enclosed a new promissory note and mortgage. The promissory note, dated April 15,1985, stated that the note was secured by a second mortgage on the Shadyridge apartment complex. The Raspberry note was not listed as collateral. Sabbe later received a letter from Beattie, dated May 28, 1985, in which Beattie acknowledged receipt of the documents. Despite the fact that the Raspberry note was not listed as collateral on the promissory note, Beattie made no objection to the release of the Raspberry note.
Beattie’s testimony concerning the events leading up to the release of the Raspberry note is markedly different from Sabbe’s account. He stated that he had no recollection of any request by Comley or Northwest to release the note as collateral. With respect to the promissory note of April 15,1985, Beattie testified that the fact that a box on the note was checked to indicate that the promissory note was secured by a U.C.C. security interest led him to believe that there were two items of collateral securing the promissory note, a mortgage and the Raspberry note. The appellant contends that Beattie’s letter of May 28, 1985, indicates that he had not consented to the release of the Raspberry note as collateral, because in that letter he refused to execute a participation agreement, forwarded by Sabbe, which would have given Northwest the right to release collateral without City National’s consent. Beattie’s letter also shows that he was unaware that any disbursements had been made under the letter of credit when, in fact, disbursements had been made for the entire $409,000.00 amount of the letter of credit.
Although chancery cases are tried de novo on appeal, we do not reverse the chancellor’s findings of fact unless they are clearly erroneous. Ballard v. Carroll, 2 Ark. App. 283, 621 S.W.2d 484 (1981). We review the evidence in the light most favorable to the appellee, and indulge all reasonable inferences in favor of the decree. Id., 621 S.W.2d at 486. The chancellor in the case at bar found that City National, through Beattie, agreed to the release of the Raspberry note as collateral. When the burden of proving a disputed fact in chancery is by “clear and convincing” evidence, the question on appeal is whether a finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Freeman v. Freeman, supra.
Viewing the evidence in the light most favorable to the appellee, we cannot say that the evidence that City National released the Raspberry note as collateral is not clear and convincing. Although some of the evidence is circumstantial, circumstantial evidence may be sufficient to show that the parties entered into a contract. Steed v. Busby, 268 Ark. 1, 593 S.W.2d 34 (1980). Moreover, the chancellor’s opportunity to assess the credibility of the witnesses is especially important where, as here, the testimony is in hopeless conflict. Although the appellant argues that the fact that the U.C.C. box was checked on the April 15, 1985, promissory note had the effect of leading Beattie to believe that the promissory note was secured by the Raspberry note, we do not think that the promissory note was intrinsically misleading: City National’s vice-president for commercial lending, Larry Smith, reviewed the Shadyridge file when Beattie was on vacation in the summer of 1985, and was able to determine from his review that the Raspberry note was no longer listed as collateral. Furthermore, the evidence makes it clear that Beattie reviewed the documents sent to him by Sabbe and objected to various provisions set out therein. Despite this evidence of close scrutiny, there is no indication that Beattie ever objected to the Raspberry note’s release until after the letter of credit had been called. Under these circumstances, we hold that the chancellor did not err in finding that Beattie agreed to the release of the Raspberry note.
The appellant next contends that City National’s agreement to release the Raspberry note is void for lack of consideration, and argues that City National Bank obtained no benefit in exchange for its agreement to release the note. We disagree. Both Northwest and City National agreed to release the collateral and extend the letter of credit, and mutual promises constitute consideration for each other. Freeman, supra.
City National also contends that it is released from its duty to honor the letter of credit because First Rogers assigned a $329,000.00 interest in the letter of credit to First Siloam. This contention is based upon Ark. Stat. Ann. § 85-5-116(1) (Supp. 1985), which provides that “ [t] he right to draw under a credit can be transferred or assigned only when the credit is expressly designated as transferable or assignable.” We find no merit in the appellant’s argument. The chancellor specifically found that the right to call the letter of credit remained with First Rogers, despite the partial assignment of an interest therein to First Siloam. A chancellor’s findings of fact will not be reversed on appeal unless they are clearly against the preponderance of the evidence. Pennybaker v. Pennybaker, supra. We review the evidence in the light most favorable to the appellee, indulging all reasonable inferences in favor of the decree, and giving due deference to the chancellor’s superior opportunity to judge the credibility of the witnesses. Cox v. Cox, supra; Gooch v. Gooch, supra.
The evidence shows that the terms of the partial assignment of the letter of credit provided that all terms of the original letter of credit remained in effect. This would include the required procedure that the letter of credit was to be called by First Rogers, accompanied by First Rogers’ signed statement that the amount drawn was due in connection with a loan to Shadyridge. Although there was some testimony to the effect that First Siloam’s officers were consulted by First Rogers and consented to First Rogers calling the letter of credit, the evidence clearly shows that the actual call was made by First Rogers, with the notation that the amount was drawn under Northwest’s letter of credit. In light of the evidence that the partial assignment preserved the original terms of the letter of credit, and that the letter of credit was in fact called under the terms specified in the original agreement, we hold that the chancellor did not err in finding that the right to call the letter of credit remained with First Rogers, and that the assignment of an interest in the letter of credit to First Siloam did not release City National from its duty to honor the letter of credit.
We do not reach the appellant’s contention that City National is released from liability because the assignment was in violation of Ark. Stat. Ann. § 85-3-407(1)(a) (Repl. 1961), because there is no indication in the abstract that the possibility of a violation of this statute was raised in the trial court. Arkansas courts have consistently held that issues raised for the first time on appeal will not be considered. Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983). Moreover, we do not think that the appellant’s argument would be found to have merit even had it been properly preserved for appeal. Section 85-3-407 (Repl. 1961) deals with alterations of an instrument. An instrument is defined in Ark. Stat. Ann. § 85-3-102(1)(e) (Repl. 1961) as a negotiable instrument. To be a negotiable instrument, a writing must “contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this Article.” Ark. Stat. Ann. § 85-3-104(1)(b) (Repl. 1961). The letter of credit in the case at bar did not contain an unconditional promise or order to pay; instead, payment was specifically conditioned upon receipt of a signed statement that the amount drawn was due in connection with a loan to Shadyridge, Ltd. Even if the letter of credit in the case at bar were considered to be a negotiable instrument, City National would be discharged under § 85-3-407 only in the event of an alteration by the holder that was both material and fraudulent, and City National has failed to prove that the assignment of an interest in the letter of credit to First Siloam was made for a fraudulent purpose. Thus, we think that the appellant’s argument would fail, even had it been raised below.
Next, the appellant contends that the release of the Raspberry note as collateral released City National from liability. This contention is based on Ark. Stat. Ann. § 85-3-606 (Repl. 1961), which, in pertinent part, provides that “[t]he holder discharges any party to the instrument to the extent that without such party’s consent the holder (b) unjustifiably impairs any collateral for the instrument. . . .” (Emphasis supplied.) We need not decide whether the letter of credit in the case at bar was a negotiable instrument in order to address the appellant’s contention, because we have affirmed the chancellor’s finding that City National consented to Northwest’s release of the Raspberry note as collateral. In light of that finding, the appellant’s argument lacks merit.
The appellant also argues that the chancellor erred in excluding the testimony of Tom Reed, a witness called by City National. We do not reach this contention, for the appellant has failed to cite any authority in support of its position. Assignments of error unsupported by convincing arguments or authority will not be considered on appeal unless it is apparent without further research that the assignments of error are well taken. Western Auto Supply Co. v. Bank of Imboden, 17 Ark. App. 4, 701 S.W.2d 394 (1985). In light of the fact that City National never listed Reed as a witness in its answers to interrogatories, we do not think the appellant’s argument is so convincing as to merit consideration on appeal in the absence of citation to authority.
The appellant next asserts that the chancellor erred in permitting Fran Sabbe to testify concerning the oral agreement to release the Raspberry note as collateral, and argues that Sabbe’s testimony was improper as parol evidence introduced to change or alter a contract in writing. Although it is true that the Parol Evidence Rule prohibits the introduction of evidence of all prior or contemporaneous agreements of the parties which would vary the express terms of their written agreement, see Sterling v. Landis, 9 Ark. App. 290, 658 S.W.2d 429 (1983), it is well established that this rule is not violated by proof of a subsequent oral agreement modifying the terms of a written one. Id., 658 S.W.2d 429. Because Sabbe’s testimony was not offered to prove an agreement that was prior to or contemporaneous with the agreement embodied in the letter of commitment between City National and Northwest, but instead related to an oral agreement reached after the letter of commitment had been executed, we hold that the chancellor did not err in admitting Sabbe’s testimony.
We next address the contentions advanced by the cross-appellant, Northwest, for reversal of the decree entered against it in favor of First Rogers and First Siloam. Northwest first contends that the failure of First Siloam to call the letter of credit precludes First Siloam from seeking a judgment on it arguing that First Rogers assigned to First Siloam the duty of calling the letter of credit. We disagree. Although we have said that an assignment couched in general terms is an assignment of the assignor’s rights and a delegation of his unperformed duties under the contract unless the language or the circumstances indicate the contrary, see Newton v. Merchants & Farmers Bank, 11 Ark. App. 167, 668 S.W.2d 51 (1984), we think that both the language of the assignment and the circumstances of the case at bar indicate that First Siloam was not assigned the duty of calling the letter of credit. The partial assignment provided that it was to operate upon the same conditions as the letter of credit. One of the conditions of the credit was that it was to be called by First Rogers under a draft drawn on Northwest. Moreover, there is no evidence to show that First Siloam ever intended to assume First Rogers’s duty of calling the letter of credit; to the contrary, First Siloam has neither claimed the right to call the letter of credit nor attempted to do so. We think that the evidence clearly shows that the purpose of the assignment was merely to provide security for First Siloam’s loan to Comley, and that no delegation of duties was intended. Under these circumstances, we hold that the chancellor did not err in failing to dismiss First Siloam’s complaint against Northwest.
Next, Northwest contends that the conditions for First Rogers to call the letter of credit did not exist. This argument is without merit. Northwest states in its brief that the letter of credit required First Rogers to state in its call that the First Rogers’s loan to Shadyridge was due, and argues that this condition was not satisfied because there is no evidence to show that First Rogers’s loan was to Shadyridge, Ltd., as opposed to Thomas Comley individually. However, the letter of credit did not require that the loan be made to Shadyridge per se, but only provided that the demand must specify that the amount drawn was in connection with the loan to Shadyridge, Ltd. Because the record clearly shows that the proceeds of the loans to Comley were deposited in the account of Shadyridge, Ltd., we hold that First Rogers’s demand met the conditions set out in the letter of credit.
Northwest next asserts that the chancellor erred in failing to find that Northwest’s issuance of the letter of credit in the amount of $409,000.00 was unenforceable as an illegal contract. Northwest’s argument is based upon 12 U.S.C. § 84 (1982), which sets lending limits for national banks. Virginia Morris, Northwest’s chief executive officer, testified that Northwest’s lending limit with respect to the Shadyridge letter of credit was approximately $105,000.00. She further stated that Northwest could avoid exceeding its lending limit by having another bank participate, and that City National was asked to participate in the letter of credit. Because Northwest had never before engaged in a participation involving a letter of credit, she asked David Marley of City National for guidance, and sent all of the paperwork to Marley for approval. When Ms. Morris asked Marley whether two letters of credit should be issued, one from Northwest and another from City National, Marley told her that only one letter of credit should be issued, and that it should be issued by Northwest, to which the request had originally been addressed. Finally, Morris stated that she made First Rogers aware of City National’s participation by notifying two of First Rogers’s officers, James Glenn and John Carpenter. Northwest asserts that its issuance of the letter of credit in the amount of $409,000.00 violated the lending limits imposed by 12 U.S.C. § 84 (1982), and that the letter of credit is thus an illegal contract which cannot be enforced.
The general rule with respect to illegal contracts is that neither courts of law nor of equity will interpose to grant relief to the parties, if they have been equally cognizant of the illegality. Womack v. Maner, 227 Ark. 786, 301 S.W.2d 438 (1957). An exception to the general rule exists, however, in cases where the party suing, though particeps criminis, is not in pari delicto with the adverse party: under those circumstances, the party suing will not be barred from asserting rights under the transaction. Dillard v. Kelley, 205 Ark. 848, 171 S.W.2d 53 (1943). We think that First Rogers’s knowledge of Northwest’s loan limit is the crucial factor in determining whether First Rogers was in pari delicto with Northwest with respect to Northwest’s asserted violation of the federal statute governing lending limits. See National Farmers Organization, Inc. v. Kinsley Bank, 731 F.2d 1464 (10th Cir. 1984). In its brief, Northwest states that Ms. Morris testified that she made First Rogers aware of the lending limit problem and the need for City National’s participation. Although it is true that Ms. Morris stated that both Comley and City National were aware that the participation was required in order to avoid exceeding Northwest’s lending limit, we find no indication in the record that First Rogers was also made aware of the lending limit problem. Instead, Morris merely stated that she made First Rogers aware of City National’s participation by contacting Glenn and Carpenter. Glenn testified that, while he was aware of City National’s participation in the letter of credit, he did not suspect that the reason for the participation was that Northwest had a problem with its lending limits. On this record, we cannot say that First Rogers was aware that Northwest exceeded its lending limit in issuing the letter of credit, and that First Rogers was thus in pari delicto with Northwest concerning any violation of 12 U.S.C. § 84 that may have occurred. The law will not presume that the parties to a contract intended an illegal act. Stroud v. Pulaski County Special School District, 244 Ark. 161, 424 S.W.2d 141 (1968). We therefore hold that First Rogers was not precluded from enforcing the letter of credit against Northwest in the amount of $409,000.00.
We finally address Northwest’s contention that the chancellor erred in awarding interest at the rate of thirteen percent. Northwest argues that the letter of credit was a contract in which no rate of interest was agreed upon, and that prejudgment interest is thus limited to six percent per annum under Ark. Const. art. 19, §13, amend. 60, § 1 (d)(i) (1982). We agree. See Rest Hills Memorial Park, Inc. v. Clayton Chapel Sewer Improvement District, 6 Ark. App. 180, 639 S.W.2d 519 (1982). Although the promissory note which First Rogers issued to Comley provided for interest at the rate of thirteen percent, the letter of credit itself made no provision for the payment of interest. We therefore modify the chancellor’s decree to provide for the payment of prejudgment interest at the rate of six percent rather than the thirteen percent rate the chancellor awarded.
Affirmed on direct appeal.
Affirmed as modified on cross-appeal.
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Beth Gladden Coulson, Judge.
The appellant, Frederick Rideout, was convicted of driving while intoxicated. His drivers license was suspended for a period of 90 days, and he was fined $150.00 plus costs and sentenced to 24 hours already served in jail. On appeal, it is argued that the trial court erred in finding that the arresting officer had sufficient probable cause to arrest the appellant for DWI. We find no error and affirm.
At trial, the arresting officer testified that on October 13, 1985, at approximately 2:21 a.m., he was traveling westbound on Interstate 40 when his radar clocked the appellant’s vehicle doing 74 miles per hour in a 55 mile per hour zone. The officer also observed the appellant’s vehicle drive several feet off the main road onto the shoulder before returning to the roadway. The officer stopped the appellant and noticed a moderate odor of alcohol about the appellant’s person. The officer administered various field sobriety tests, which the appellant failed, and then arrested the appellant for speeding and for DWI. The officer testified that in his opinion the appellant was driving under the influence of intoxicants. A breathalyzer test was later administered, and the appellant registered 0.13%.
At no time had the appellant moved to suppress the results of the breathalyzer test nor had he objected to this evidence when introduced. At the close of all the evidence, the appellant moved for a judgment of acquittal based upon a lack of probable cause for the arrest. This appeal was prompted by the trial judge’s comment that he found probable cause by virtue of the justifiable stop for speeding and the officer’s detection of the odor of alcohol on the appellant’s person, but that he attached no value to the results of the field sobriety tests. We decline to reach the merits of the issue raised by the appellant because the issue was not properly presented to the trial court.
The appellant’s motion for a judgment of acquittal based on lack of probable cause was in reality a motion to suppress the evidence coupled with a motion for a directed verdict. Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985). Our decision in Holt makes clear that defendants should pursue the issue of probable cause under Rule 16.2 of the Arkansas Rules of Criminal Procedure by timely filing a motion to suppress the evidence obtained as a result of the allegedly unlawful arrest. Under Rule 16.2(b), that motion must be filed no later than 10 days before trial, except that the trial court has the discretion to allow a later motion to suppress on a showing of good cause. The appellant, as was the case in Holt, failed to timely file his motion to suppress, made no attempt to demonstrate good cause for waiting until the close of all the evidence, and failed to object to the introduction of the evidence which resulted in his conviction.
Rule 16.2(b) is reasonable and should be complied with in the absence of good cause. “The rule facilitates the orderly procedure of the trial court, and gives the court and the parties an opportunity to study preliminary issues before the trial proper and perhaps dispenses with the necessity for a trial.” Dodson v. State, 4 Ark. App. 1, 5, 626 S.W.2d 624, 626, cert. denied, 457 U.S. 1136 (1982). We hold that the attempt to suppress the evidence was not timely and need not have been considered by the trial judge. Holt, supra.
Having viewed the appellant’s motion for a judgment of acquittal as a combined motion — to suppress and for a directed verdict — we test the sufficiency of the evidence to support the conviction. We view the evidence in the light most favorable to the State and affirm if there is substantial evidence to support the verdict. In light of the officer’s testimony and the results of the breathalyzer test, we find substantial evidence to support the appellant’s conviction for DWI.
Affirmed.
Corbin, C.J., and Jennings, J., agree. | [
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James R. Cooper, Judge.
The appellant in this criminal case was charged with driving while intoxicated, and convicted after a trial in the City Court of Kensett, Arkansas. After a de novo appeal to the Circuit Court of White County, Arkansas, the appellant was found guilty of driving while intoxicated, first offense. He was fined $600.00, his driver’s license was suspended for ninety days, and he was sentenced to ten days in the White County Detention Center. From that decision, comes this appeal.
For reversal, the appellant contends that the circuit judge erred in failing to find that the arrest was invalid on the ground that the arresting officer was an auxiliary policeman who was not under the direct supervision of a full-time certified law enforcement officer. He also argues that the arresting officer was not acting in his capacity as an auxiliary policeman at the time of the arrest, but instead was acting as a member of the Kensett Neighborhood Watch. We affirm.
There is evidence to show that the appellant was driving erratically within the city limits of Kensett on March 22, 1986. Carthel Kelsey, an auxiliary law enforcement officer of the Kensett City Police and president of the Kensett Neighborhood Watch, was patrolling Kensett when he observed the appellant’s vehicle weave, go into the ditch on the left side of the road, and come out again. Kelsey gave chase and arrested the appellant. At the time of the arrest, Kelsey was certified as an auxiliary law enforcement officer, and was dressed in the uniform of the Kensett Police Department. Larry Smith, a fireman, was riding with Kelsey as he made his patrol. Smith was a member of the Kensett Neighborhood Watch, but he was not a law enforcement officer or an auxiliary law enforcement officer. When Kelsey left the patrol car to apprehend the appellant, he told Smith to wait in the car, and Smith took no part in the apprehension. Chief Webb of the Kensett Police Department, a certified law enforcement officer and Kelsey’s supervising officer, arrived on the scene after Kelsey made the arrest, but he did not otherwise participate in the arrest. Kelsey stated that he was in radio contact with Chief Webb while on patrol; that he had talked to Webb by radio approximately ten minutes before he observed the appellant driving erratically; and afterwards informed Chief Webb by radio that he was in pursuit of the appellant.
The appellant first asserts that Kelsey was not under Chief Webb’s direct supervision when the arrest occurred, and contends that the trial court thus erred in failing to find that the arrest was invalid. We disagree. The authority of an auxiliary law enforcement officer is governed by Ark. Stat. Ann. § 42-1404 (Supp. 1985), which provides in part that:
(a) An auxiliary law enforcement officer shall have the authority of a police officer as set forth by statutes of this State when the auxiliary law enforcement officer is performing an assigned duty and is under the direct supervision of a full-time certified law enforcement officer.
(b) When not performing an assigned duty and when not working under the direct supervision of a full-time certified law enforcement officer, an auxiliary law enforcement officer shall have no authority other than that of a private citizen.
The essence of the appellant’s argument is that Kelsey’s radio contact with Chief Webb did not provide the “direct supervision” that the statute requires. We find no merit in this contention, because the physical presence of a supervising officer is not required to validate an arrest made by an auxiliary law enforcement officer. Ark. Stat. Ann. § 42-1401 (Supp. 1985). Moreover, direct supervision of an auxiliary law enforcement officer can be provided by radio contact. See McAfee v. State, 290 Ark. 446, 720 S.W.2d 307 (1986). Under these circumstances, we hold that the trial court did not err in failing to find that the arrest was invalid.
Next, the appellant asserts that the evidence was insufficient to support a finding that Kelsey was acting in his capacity as an auxiliary law enforcement officer when he arrested the appellant, and that the evidence shows that Kelsey was acting as a member of the Kensett Neighborhood Watch when the arrest was made. Where the sufficiency of the evidence is at issue, we review the evidence in the light most favorable to the State, and we affirm if the verdict is supported by substantial evidence. Lair v. State, 19 Ark. App. 172, 718 S.W.2d 467 (1986). Substantial evidence is evidence which induces the mind to go beyond mere suspicion or conjecture, and which is of sufficient force and character to compel a conclusion one way or the other. Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987). Although it is true that Kelsey was a member of the neighborhood watch, and was accompanied by another watch member as he made his patrol, Kelsey unequivocally stated at trial that, on the night in question, he was on patrol as an auxiliary police officer and not as a member of the neighborhood watch. There is also evidence to show that Chief Webb had assigned Kelsey to patrol duty on the night in question; that Kelsey was in the uniform of the Kensett Police Department; and that Smith, the fireman, took no part in the appellant’s arrest. Viewing the evidence in the light most favorable to the State, we hold that the evidence was sufficient to support a finding that Kelsey was acting in his capacity as an auxiliary policeman when he arrested the appellant.
Affirmed.
Corbin, C.J., and Mayfield, J., agree. | [
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James R. Cooper, Judge.
The appellee, Martha Gibson, was employed by the appellant and was injured in the course of her employment after inhaling kerosene fumes. Her injury was found to be compensable, and further hearings were held before the administrative law judge to determine the extent of her disability and whether the employer was entitled to a fifteen percent credit for a permanent partial disability previously paid. The administrative law judge found the appellee to be permanently and totally disabled, that the appellant was not entitled to a fifteen percent setoff, and that the appellee’s attorney was entitled to attorney’s fees based on the medical bills that had been paid by Blue Cross/Blue Shield. The full commission adopted the opinion of the administrative law judge. The appellant now argues on appeal that the evidence was insufficient to support a finding that the appellee is permanently and totally disabled, that the Commission erred in refusing to allow the appellant fifteen percent credit against the award because the appellant had previously paid the appellee for a fifteen percent partial disability, and that the Commission erred in awarding attorney’s fees on the medical expenses paid by Blue Cross/Blue Shield. We affirm.
On September 18, 1984, in proceedings not a part of this appeal, the appellee was found to have suffered a compensable injury to her lungs after inhaling kerosene fumes. On June 18, 1985, a hearing was held to determine the extent of her injury. The appellee testified that after two months of working in the kerosene, she began to bleed from her kidneys. The appellee suffers from chest pain, aching in her joints, and occasionally coughs up blood. She stated that she is extremely sensitive to odors and becomes ill in the grocery store and gas station. The appellee’s husband testified that since the injury, the appellee spends most of her time in bed and is unable to complete her household chores. Shortly after being hospitalized with pulmonary problems the appellee attempted to return to work. However, the work-related odors made her ill and her doctor recommended that she not work. The appellee now suffers from a chronic hypersensitivity to chemicals.
A rehabilitation report was entered into evidence. The report stated that the appellee had a formal education through eleventh grade and had worked in the past as a nurses’s aide, a cook, and on the line in a factory. It was the opinion of the rehabilitation specialist that the appellant would not be able to return to any of the jobs in which she had experience. He further stated that the appellee may in the future, with retraining, be capable of working in an environment where there are no fumes, cigarette smoke, or chemicals. However, the appellee’s treating physician, Dr. Wor-rell, stated that he felt it would be at least two to five years before the appellee could return to work even in a cleaner environment. Dr. Worrell further stated that he did not feel the appellee could even handle the necessary retraining for several years.
It is the appellant’s contention that because there was evidence that the appellee may be able to re-enter the work force, the Commission’s decision that the appellee is permanently and
totally disabled is not supported by substantial evidence. We disagree.
Under our limited standard of review, decisions of the Workers’ Compensation Commission must stand if supported by substantial evidence, and, in determining the sufficiency of the evidence to sustain findings of the Commission, testimony must be viewed in its strongest light in favor of the Commission’s findings. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). Findings of fact by the Commission are, on appeal, given the same verity that would attach to a jury’s verdict. Substantial evidence has been defined as more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is of such force and character that it would with reasonable and material certainty and precision compel a conclusion one way or the other. Id. at 263, 663 S.W.2d at 200; DeFrancisco v. Arkansas Kraft Corp., 5 Ark. App. 195, 636 S.W.2d 291 (1982).
In determining wage loss disability, many other factors are to be determined along with the medical evidence. Consideration should be given the claimant’s age, education, experience, and other matters affecting wage loss including the degree of pain endured as a result of the compensable injury. Chism v. Jones, 9 Ark. App. 268, 658 S.W.2d 417 (1983); Hunter Wasson Pulpwood v. Banks, 270 Ark. 404, 605 S.W.2d 753 (Ark. App. 1980).
In the case at bar, the evidence reflected that the appellee was 53 years old, had worked in two other fields, and had a GED equivalency diploma. Although the rehabilitation therapist testified that the appellee may be able, with retraining, to find employment in five years, such an assessment is speculative. We hold that the evidence supports the Commission’s finding that the appellee is totally and permanently disabled.
The appellant next argues that the Commission erred in refusing to offset the award to the appellee by the amounts the appellant had paid to the appellee for a previous back injury suffered by the appellee in 1983. However, the law cited by the appellant applies to situations where the prior injury suffered by a claimant combines with the second injury to cause disability. See Ark. Stat. Ann. § 83-1313(f)(1) (Repl. 1976). However, in the present case it is clear that the recent injury suffered by the appellee in her employment with the appellant, standing alone, left her totally and permanently disabled. In other words, there is no evidence in the record to support a finding that the previous back injury contributed in any way to the appellee’s present disability, and the ceilings on compensation found in §81-1313 (f)(1) do not apply. Cooper Industrial Products, Inc. v. Worth, 256 Ark. 394, 508 S.W.2d 59 (1974).
The appellant’s last argument concerns the fees awarded to the appellee’s attorney. Prior to the determination that the injury was compensable, the health insurance carrier, Blue Cross/Blue Shield, paid over $ 15,000.00 for medical expenses incurred by the appellee. At one point in the case at bar, Blue Cross/Blue Shield was granted permission to intervene; however, they were later dismissed at Blue Cross/Blue Shield’s request. The appellee’s attorney was awarded a fee partially based on the amount of medical expenses paid by Blue Cross/Blue Shield after a hearing on this issue. The appellant alleges that this was error. We disagree.
The test is that fees are calculated on the amount controverted and awarded. Ark. Stat. Ann. § 81-1332 (Repl. 1976); Hot Spring County Bicentennial Park v. Walker, 271 Ark. 688, 610 S.W.2d 268 (1981). The appellant in this case disputed that it had any liability at all. Its position at the hearings was that the appellee’s injuries could not have been caused by the inhalation of kerosene. The award of medical benefits made by the Commission in the first hearing was not appealed from. We do not find it significant that the medical bills were paid by a collateral source; they were awarded to the appellee by the Commission after being controverted by the appellant. We find no error.
Affirmed.
Cracraft and Mayfield, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Arkansas Board of Review holding that the appellant was not eligible for unemployment benefits because she had quit her last work without good cause connected with the work.
In December of 1979, the appellant went to work for a group of plastic surgeons as a medical transcriptionist. In March of 1981, she was promoted to office manager. According to her testimony, her duties included interviewing and hiring applicants, receptionist, preparing payrolls, ordering supplies, accounts receivable, daily deposits, tax deposits, scheduling surgery and hospital rounds, correcting office problems, and the supervising and firing of employees. In November of 1983, the doctors hired a man as administrative office manager. Over the course of the next year, he assumed a large number of appellant’s responsibilities himself or assigned them to someone else. Appellant claims she was relegated to being a bookkeeper; that she no longer had any input into the hiring and firing of employees, or the granting of vacations or pregnancy leave; and that she no longer had any medical duties.
The appellant testified that after the administrative office manager was employed there was job-responsibility confusion and after about eight months of attempting to resolve her work problems, she asked for a conference with the doctors. However, when the meeting began one of the doctors had to leave on personal business. Another meeting was to be scheduled but appellant resigned before the date and time for the next meeting was set.
In support of her argument that she had good cause connected with the work for resigning, the appellant points to the fact that prior to her resignation a nurse was hired to handle the medical responsibilities of the office and after appellant’s resignation an executive secretary was hired who does not supervise other employees and is not involved in personnel matters. Appellant cites Ladish Company v. Breashears, 263 Ark. 48, 563 S.W.2d 419 (1978), as standing for the proposition that a change in work calling for less competence and lower remuneration is cause for work to become unsuitable and good cause for voluntarily quitting. Ark. Stat. Ann. § 81-1106(c)(1) (Repl. 1976), provides that in determining the existence of good cause for an employee to voluntarily leave work it is necessary to consider, among other factors, “the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings,. . . .” And in Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980), the court said good cause for quitting work involves good faith, the desire to work, and whether the employee took appropriate steps to remedy the situation causing the problem with the work. Both Ladish and Teel recognized that the issue presented was a question of fact. It is settled that the factual determinations of the Board of Review must be affirmed if supported by substantial evidence and that this means legal evidence that a reasonable mind might accept as adequate to support a conclusion. Victor Industries Corporation v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981).
In the instant case, the appellant’s pay did not decrease after the administrative office manager was employed. In fact, her pay increased from $ 15,000 to $ 17,000 after he was hired. Moreover, the appellant admitted that the doctors’ practice had grown to the point that additional help was needed to run the office. One of the doctors testified that he and the other doctors spoke with appellant and she thought help was needed and that she could work under someone else. This doctor also testified that before the administrative office manager was employed the appellant and the doctors ran the office. He said the doctors were involved in the financial aspects of the office and the hiring and firing of the employees, although the appellant interviewed applicants and had input into the hiring decision. However, the administrative office manager testified that he also made an effort to involve appellant in the hiring process and that she made suggestions in that regard. He also said he did not want her to leave and that he tried to work with her. It is admitted that appellant quit before the doctors had a second meeting to attempt to solve appellant’s problems.
Although the appellant was relieved of some of her duties, there is no evidence that this precluded her from receiving future pay increases or reduced her job to one that was unsuitable for her training and experience. She is not a nurse and some of the duties she lost concerned medical matters and were given to an employee who was a nurse. Many of her duties were helping the doctors oversee the daily operation of the office, and it is clear that the administrative office manager was hired to take over that portion of the doctors’ work. In summary, we think there is substantial evidence from which the Board of Review could properly find that the appellant quit her job without good cause connected with the work.
Affirmed.
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Beth Gladden Coulson, Judge.
In this appeal from a decision of the Workers’ Compensation Commission, appellant raises two points for reversal. We find neither persuasive, and we accordingly affirm the Commission’s order granting appellee benefits.
In July, 1984, while employed by appellant Preway, Inc., appellee, Paulette Davis, suffered a compensable back injury. She underwent surgery and, in August, 1985, was rated at fifteen percent permanent partial disability. Appellee was advised to return for medical treatment as needed. According to the record, she sought permission from appellant Travelers Insurance Company to see a physician in her home town of Paragould, Arkansas, for treatment of back pain and was advised instead to return to her treating physician in Memphis, Tennessee. Although the office of the doctor in Memphis maintained a satellite clinic in Jonesboro, Arkansas, the earliest appointment with the group that appellee could obtain was at the Memphis office.
Appellee stated that she left her house shortly before 8:00 a.m. on October 11,1985, for her 1:00 p.m. appointment with the physician in Memphis. She intended to drop off her son at his grandmother’s house, which was on the road to Memphis. At 7:50 a.m., a tie rod on her car broke, causing the vehicle to wreck. Appellee suffered a broken ankle. At a hearing before an administrative law judge, appellant insurance company contended that appellee was not on a direct route to the doctor’s office at the time of the accident and that the injury to her ankle was not within the scope and course of employment and constituted an independent intervening cause. Appellee argued that her injury arose out of the scope and course of her employment. The law judge awarded benefits, holding that the injury to the ankle was compensable. The award was affirmed by the Workers’ Compensation Commission. From that decision, this appeal arises.
In their first point for reversal, appellants argue that the Commission erred in finding that appellee was in the course and scope of her employment when she was injured in an automobile accident while en route to a doctor for treatment of a prior compensable injury. The terms in which appellants have framed their argument do not quite fit the circumstances at hand. There are no Arkansas cases directly on point regarding this issue. It is noted in 1 Larson, Workmen’s Compensation Law, § 13.13 (1985), that
when an employee suffers additional injuries because of an accident in the course of a journey to a doctor’s office occasioned by a compensable injury, the additional injuries are generally held compensable, although there is some contra authority.. . . But... a fall or automobile accident during a trip to a doctor’s office has usually been considered sufficiently causally related to the employment by the mere fact that a work-connected injury was the cause of the journey, without any necessity for showing that the first injury in some way contributed to the fall or accident.
It appears that the majority of jurisdictions award compensation in situations similar to the present case.
Appellants rely, in part, on Guidry v. J&R Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984), for the proposition that appellee’s second injury resulted from an independent intervening cause — the automobile accident. Guidry involved a claimant who sustained injuries in a collision that occurred about six months after the date of his compensable injury. The distinction, as pointed out by appellee, between that case and hers is clear. In Guidry, no evidence was presented to indicate that the automobile accident that occurred was in any way connected to the claimant’s employment or to his seeking medical treatment for his prior injury. In the instant case, appellee was acting at the explicit direction of appellant insurance company in obtaining medical treatment for the compensa-ble injury.
In his treatise, Larson has developed the concept of “quasi-course of employment” as an analytical tool in dealing with cases such as the present one:
By this expression [quasi-course of employment] is meant activities undertaken by the employee following upon his injury which although they take place outside the time and space limits of time employment, and would not be considered employment activities for the usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. Quasi-course activities in this sense would include, for example, making a trip to the doctor’s office. . .
When the injury following the initial compensable injury arises out of a quasi-course activity, such as a trip to the doctor’s office, the chain of causation should not be deemed broken by mere negligence in the performance of that activity, but only by intentional conduct which may be regarded as expressly or impliedly prohibited by the employer.
1 Larson, § 13.11(d). Under these principles, appellee could be said to have been acting reasonably. She was engaged in activities rendered necessary by her compensable injury. Appellant’s attempt to suggest that appellee was acting negligently in driving a car with a faulty tie rod, an assertion that under Larson’s rule is immaterial. We cannot say that appellee was in violation of an express or implied prohibition of her employer when she made it her purpose to deliver her child at his grandmother’s house on the way to Memphis. Such an arrangement is hardly to be considered unreasonable.
Appellants erroneously attempt to invoke the going and coming rule. That mode of analysis is irrelevant for the purposes of this case, where appellee was not traveling to and from her place of employment, but instead to a doctor’s office to be treated for a prior compensable injury. We believe that the Commission did not err in finding that appellee was injured within the scope and course of her employment.
In their second argument, appellants contend that the Commission erred in holding them responsible for any injuries to appellee’s ankle following her fall in a bathtub after the automobile accident. The operative reports of the surgeon, however, indicate that the first surgery was required as a result of the car wreck, and the second surgery, performed after the bathtub fall, was needed to remove plates which had been inserted in the earlier operation. This question was simply one of fact for the Commission to decide. We cannot say, on the basis of the record, that the Commission decided wrongly.
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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George Rose Smith, Justice.
This case has not yet been tried. The chancellor, after a hearing, granted the plaintiffs motion to allow the case to proceed as a class action under ARCP Rule 23, with Jerry Sarver representing the class. This appeal by Cooper Communities from that interlocutory order comes to us under Rule 29(l)(c) and (k). We affirm.
The appellant Communities, a corporation, was the developer of Hot Springs Village, which has grown to be a substantial community on Highway 7. The principal entrance to the Village originally consisted of a gatehouse at the highway. Before 1982, Communities built a shopping center near the gatehouse. The corporation also built a second gatehouse about 100 yards farther away from the highway than the first one. The original gatehouse had been owned by the Hot Springs Village Property Owners Association. In exchange for the corporation’s construction of the new gatehouse the Association leased the old gatehouse to the corporation for 99 years.
Communities began using the old gatehouse as an office for its real estate salesmen. A number of realtors who owned lots in the Village complained to the Arkansas Real Estate Commission that Communities was in fact maintaining a branch real estate office at the gatehouse without proper identification. The Commission sustained the complaint and required the company to comply with the governing regulations.
In January, 1985, the present suit against Communities and the Association was filed by “A Class of Owners of Real Property in Hot Springs Village.” The suit is actually being financed by several realtors who own lots in the Village, but the complaint does not identify any particular plaintiff.
The complaint alleges that the 99-year lease of the old gatehouse is invalid, because it was not authorized by 51% of the members of the Association. It is also alleged that Communities is using the gatehouse to steer visitors to properties that Communities has for sale. That course of action is asserted to be an unfair trade practice. There is also an allegation that the branch office has resulted in undue traffic congestion at the entrance to the Village. The prayer is that the lease be declared void and that Communities be enjoined from using the gatehouse as a sales facility.
The only issue before us is whether the suit should be maintained as a class action. At the hearing the plaintiffs presented three witnesses. All three were realtors having lots for sale in the Village. Two of them also have homes there. Their testimony tended to support the allegations of the complaint, that the operation of the gatehouse by Communities unfairly competes with other realtors. One witness testified that Communities’ method of operation also hurts a number of non-realtors in the Village who have their homes “for sale by owner.”
The plaintiffs also introduced about 120 identical short affidavits signed by a total, including spouses, of 184 owners of real property in the Village. Each affiant identifies his property, states that he is a member of the class of plaintiffs, requests the relief prayed, and states that his name may be used as a party plaintiff. At the hearing Communities presented two other property owners as witnesses, who played down the traffic congestion and said they did not want to be represented by the plaintiffs.
The chancellor, in ruling that the case may proceed as a class action, stressed the importance of the validity of the lease, an issue that concerns all the property owners. The plaintiffs were required to name an individual to represent the class. They selected Sarver, a real estate broker who had testified. The court ruled that the persons who had signed the affidavits would constitute the class.
In a case of this kind the trial judge has broad discretion in determining whether a class action is proper. Drew v. First Fed. S. & L. Assn. of Ft. Smith, 271 Ark. 667, 610 S.W.2d 876 (1981). Here we find no abuse of that discretion.
Civil Procedure Rule 23, governing class actions, requires that the question be of interest to many persons and that it be impractical to bring them all before the court within a reasonable time. A group comprising 184 individuals satisfies this part of the Rule. We do not agree with counsel’s argument that the mere signing of the affidavit made each affiant a party to the case. No doubt if each of them were required to join as a named plaintiff, many would prefer to be represented by their own attorney, unnecessarily complicating the handling of the case.
The Rule also requires that the questions of law or fact common to the members of the class predominate over questions affecting only individual members. Certainly that is true here, for the chancellor observed that the validity of the 99-year lease is the main issue.
Finally, the Rule requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. The appellant argues that there is no substantial reason why the case cannot proceed in the name of a single complaining property owner or in the names of the realtors who are the primary movers in the case. The validity of the lease of Association property is a paramount issue in the case. A properly conducted class action will bind all the owners, which would not be true if the plaintiffs were limited to one person or a few persons. The chancellor also considered the argument that the realtors are the moving force in the case, but he concluded that regardless of motives the determinative questions are the validity of the lease and the matter of traffic congestion. Both those questions go to the merits of the case rather than to the propriety of the class action.
It is also argued that Sarver, a broker, is not truly representative of the entire class. The trial judge expressed some concern about that point, because Sarver testified that if Communities offered to settle the case by closing its branch office, he as an individual would be in favor of accepting the offer and dismissing the case. The chancellor, however, observed that the court would be supervising the litigation and would have to approve any settlement that might be made. That, again, is an advantage inherent in a class action that would not be applicable to a suit by individuals.
It is our opinion that the trial court was right in deciding that the case is a proper one to be carried forward as a class action. It certainly cannot be said that the chancellor abused his broad discretion in reaching that conclusion.
Affirmed.
Purtle, J., not participating. | [
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David Newbern, Justice.
The appellee sought enforcement of visitation rights pursuant to a divorce decree issued by a court in the State of Washington and registered in Arkansas. The appellant responded by seeking modification of the visitation provisions. The chancellor held he lacked jurisdiction to modify the Washington decree because of the Uniform Child Custody Jurisdiction Act, Ark. Stat. Ann. §§ 34-2701 through 34-2725 (Supp. 1985), and he, therefore, did not rule on the merits of the appellee’s modification petition. We reverse because we conclude the chancellor does have jurisdiction to modify the decree. The chancellor did not cite any particular section of the Act as precluding him from taking jurisdiction. Our review of each section of the Act discloses none which would bar him from doing so.
Section 34-2714(a) governs modification of custody decrees rendered by courts of other states. It provides:
If a court of another state has made a custody decree, a court of this State shall not modify that decree unless: (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Act [§§ 34-2701 — 34-2725] or has declined to assume jurisdiction to modify the decree and (2) the court of this State has jurisdiction.
Whether the Washington court continues to have jurisdiction must be determined by reference to § 34-2703, and we find no provision there which would confer jurisdiction on the Washington court to entertain the appellee’s request for modification. Instead, the record before us shows the two children in question have resided in Arkansas with the appellee far longer than the six months mentioned in § 34-2703(a)(l), and thus Arkansas has, according to the Act, become their home state.
Nor is there evidence of any pending custody litigation in Washington or any state other than Arkansas. Thus § 34-2706(a) would not preclude the modification sought here. See Davis v. Davis, 285 Ark. 403, 687 S.W.2d 843 (1985).
Although we must reverse the chancellor’s determination that he lacked jurisdiction to modify the decree, we express no opinion on the merits of the appellant’s request for modification. No hearing was held on that issue, and thus we cannot engage in a de novo review with respect to the merits. Instead, we remand the case for a hearing on the question whether conditions have changed so as to warrant modification of the decree since the parties, by consent decree, registered the Washington court’s decree with the chancery court. Rains v. Alston, 265 Ark. 108, 576 S.W.2d 505 (1979).
Reversed and remanded.
Purtle, J., not participating. | [
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Per Curiam.
Appellant, Jesse Ray Williams, by his attorney, has filed for a rule on the clerk.
His attorney, Jesse L. Kearney, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Purtle, J., not participating. | [
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Per Curiam.
Appellant, Terry Moss, by his attorney, R. Paul Hughes, III, has filed a motion for rule on the clerk.
The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Purtle, J., not participating. | [
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Robert H. Dudley, Justice.
Appellant was found guilty of burglary, robbery and theft of property. He appeals the convictions for burglary and robbery, but does not appeal the conviction for theft of property. We affirm the convictions.
Appellant’s first point is that the evidence is insufficient to sustain the convictions. On appeal, the evidence must be viewed in the light most favorable to appellee, and the judgment must be affirmed if there is any substantial evidence to support the finding of the trier of fact. Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). “Substantial evidence is that which is more than a scintilla and must do more than create a suspicion of the existence of the fact to be established; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Phillips, supra.
The evidence, viewed most favorably to appellee is as follows: On December 3, 1984, the victim was attacked by three men in the living room of her home; they hit her on the head; they tied her up with telephone cord and put a pillowcase over her head; they stole her car keys, some money, her jewelry and her 1981 Grand Mercury Marquis automobile; on December 22, 1984, appellant was observed in Rockford, Illinois, in possession of the victim’s car and was arrested for possession of stolen property; the victim’s photo identification card was found in appellant’s jacket pocket.
During his initial interview with the Rockford police, appellant first told them that a person in Rockford named Larry had given him the car; he then told them that he had found the car at Granite Mountain in Little Rock on December 6, with the keys in it, and that when it was still there on December 8, he took it and went to Rockford; he finally told them the story that is contained in his written statement, which is that he accompanied two black males to the victim’s house thinking they were going to purchase weed; that when he discovered what they were really up to he “pushed the door open and just stepped inside and told them [he] was leaving” and hitched a ride back to Granite Mountain; and that the two subsequently talked him into getting rid of the car.
Proof that is based upon circumstantial evidence must be consistent with the guilt of the accused and exclude every other reasonable hypothesis consistent with innocence. Ward v. State, 280 Ark. 353, 658 S.W.2d 379 (1983). On appeal, however, this Court’s “responsibility is simply to determine that the verdict is based on substantial evidence.” Ward, supra.
In the case at hand, the victim could not identify the appellant. She was certain, however, that there were three persons who attacked her, and she did not see or hear anyone come up on the porch. Appellant admitted that he accompanied the two assailants to the victim’s house; he just denied knowing of their purpose and taking part in their attack.
The evidence places the appellant at the scene of the crimes, in exclusive possession of recently stolen property, and giving inconsistent statements to the police in attempting to explain his possession of the recently stolen property. In Ward v. State, 280 Ark. 353, 658 S.W.2d 379 (1983), we wrote:
As early as 1879 we expressed the rule, already followed elsewhere, in cases of burglary, larceny and possession of stolen property that possession of recently stolen property is prima facie evidence of the guilt of the party in whose possession the property is found, unless satisfactorily accounted for by the evidence. Boykin v. State, 34 Ark. 443. Nor is the rule limited to larceny and possession. In Gunter v. State, 79 Ark. 432 (1906), we declined to draw a distinction between larceny and burglary, and explained the rule:
Such evidence raises no presumption of law as to the guilt of the accused, but only warrants an inference of fact, of more or less weight according to the particular circumstances of each case, which the jury may draw therefrom as to his guilt. It makes a question for the jury, and is sufficient to warrant conviction where it induces in the minds of the jury a belief, beyond a reasonable doubt, of the guilt of the accused.
The inference also arises in cases of robbery, when the defendant is in exclusive possession of property shown to have been recently taken in a robbery. 67 Am. Jur. 2d, Robbery § 53 (1985). See Shell v. State, 84 Ark. 344, 105 S.W. 575 (1907). In addition, the inconsistent statements given to the police in an attempt to explain the possession of the property authorize an inference of guilt. The evidence is sufficient to sustain the convictions for burglary and robbery.
The appellant next argues that the trial court erred in the manner in which he fixed the length of the sentences. However, there was no objection in the lower court to the fixing of the sentences, and we will not consider a matter not raised below. The reason for the rule is most obvious in this case. The appellant never notified the judge of his objection to the manner in which the judge fixed the sentences and, as a result, the judge never had a chance to rule on the matter, and to correct it if it was in error.
Affirmed.
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David Newbern, Justice.
The appellant, Dr. Harold Mings, objects to the use as a parking lot of part of a tract of land owned by the appellee St. Edward Mercy Medical Center. The tract is across the street from Dr. Mings’ home and directly adjacent to a vacant lot he owns. Dr. Mings has been denied declaratory and injunctive relief against the hospital as well as injunctive relief he sought against the appellee City of Fort Smith. The claim against the hospital is that the hospital agreed not to use the land for a parking lot and thus is estopped from doing so. The claim against the city is that it violated its procedural requirements in allowing the parking lot in connection with a conditional use granted on the tract in question. We agree with the chancellor’s finding that Dr. Mings’ proof of estoppel by an agreement by which the hospital promised not to have a parking lot on the land fell short. We also agree with the chancellor that the city’s conduct was in at least substantial compliance with its ordinances. Thus we affirm as to both appellees.
In 1970, Dr. Mings and others fought the rezoning sought and obtained by the hospital to build its facility on a large tract of land near Dr. Mings’ residence. In connection with appearances before the city planning commission, Dr. Mings and others agreed to withdraw their opposition to the hospital’s request that its tract be rezoned T-l (transitional) from R-2 (residential). In exchange for Dr. Mings and others dropping their opposition, the hospital agreed it would maintain a buffer zone between its facility and the property of Dr. Mings and others. The portion of the hospital’s land on which its facility was to be built would be rezoned T-l, but the remaining part of the land constituting the buffer zone would remain zoned R-2. R-2 zoning would permit residential dwellings and duplexes and the sort of parking lot for nine cars which has been developed on the buffer zone and which is the subject of this case.
In 1982, the hospital went back to the planning commission and received permission to construct a jogging and walking trail as a conditional use on the buffer zone. The hospital’s representative at that meeting pointed out explicitly that there would be no parking lot constructed in connection with the jogging trail.
In 1984, the parking lot was constructed on the buffer zone next to Dr. Mings’ vacant lot by boy scouts as part of a merit badge project. When objections were voiced by Dr. Mings and others, the hospital closed the lot. The hospital then sought permission from the planning commission to reopen the parking lot. The planning commission denied the request. No one appealed that decision to the Fort Smith Board of Directors, but it appeared on the board’s agenda. The city attorney advised the board to take no final action in the absence of a formal appeal, so the board voted to ask the planning commission to reconsider the matter. The planning commission again sent out notices and held a second plenary hearing and again denied the hospital’s request. The hospital did not appeal that decision, but one of the citizens, a Mr. Faulkner, who had supported the hospital’s earlier request to the, planning commission, lodged an appeal with the board of directors. The board of directors overruled the planning commission’s decision, thus permitting the hospital to use the parking lot. Dr. Mings brought the action now on appeal.
1. Estoppel by Agreement
Dr. Mings argues the hospital is estopped from operating the parking lot because of its agreement with him and the other property owners not to do so. The evidence of an agreement reached before the original hospital construction supports no conclusion stronger than that the buffer zone would remain R-2 and be developed with a “park like” atmosphere. There was nothing specifically said about a parking lot.
When the hospital applied for the conditional use permit to construct the jogging trail in 1982, its representative told the planning commission that no parking lot would be built in conjunction with the jogging trail. There is evidence that that representation was made as the result of an agreement between the hospital and Dr. Mings. It was only a part of the presentation showing the planning commission how the land was to be used. Dr. Mings cites no authority, and we know of none, to the effect that a statement made by a party seeking a conditional use of land before a planning commission is binding upon that party and enforceable by those who opposed his request to the commission.
Dr. Mings had the burden of showing the existence of the agreement on which his estoppel claim was based. Hanna v. Johnson, 233 Ark. 409, 344 S.W.2d 846 (1961). When estoppel is the basis of a claim, we have held “. . . that there must be certainty as to every intent, that the facts constituting it must not be taken by argument or inference, and that nothing can be supplied by intendment.” Ford Motor Credit Co. v. Exchange Bank, 251 Ark. 881, 476 S.W.2d 208 (1972). Nor will we set aside the chancellor’s factual determinations that there was no such agreement unless we find it to be clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Blevins v. Wagnon, 281 Ark. 272, 664 S.W.2d 198 (1984); Proctor v. Hammons, 277 Ark. 247, 640 S.W.2d 800 (1982). We make no such finding, and we hold the proof of estoppel was at best unclear.
2. Procedural Irregularity
Dr. Mings argues either of two procedural errors requires us to declare the parking lot aspect of the conditional use permit void. First, he contends it was improper for the city board to refer the matter back to the planning commission for reconsideration when no appeal had been filed. He contends the board exceeded its authority. The argument would have been stronger had the board reversed the planning commission rather than suggesting reconsideration. However, even in that event we would have been called upon to consider seriously our statement in Taylor v. City of Little Rock, 226 Ark. 384, 583 S.W.2d 72 (1979), to the effect that the role of a planning commission is merely to act as an advisor to the city board of directors. Here, we have the argument that the board had no authority to ask the planning commission to reconsider when there had been no appeal.
While we recognize that a city may not ignore the procedures it has set up for participation of citizens in municipal government, we have held that a city’s actions are not invalid when it has substantially complied with its prescribed procedures. Adams v. Sims, 238 Ark. 696, 385 S.W.2d 13 (1965).
Dr. Mings cites Potocki v. City of Fort Smith, 279 Ark. 19, 648 S.W.2d 462 (1983), for the proposition that the city must abide by its ordinances. In that case the city flagrantly ignored its own requirement that zoning petitions not be resubmitted until one year after denial. In contrast, we find no mandate in this case saying the board may not suggest reconsideration by the planning commission. In Potocki v. City of Fort Smith, supra, we noted that there was not even substantial compliance with the germane ordinance.
In Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983), we struck down a city’s attempt to bypass completely its planning commission in the face of its ordinance requiring that zoning matters be presented first to the planning commission and then to the board. There, again, was a flagrant abuse and no hint of substantial compliance.
The action of the city board was appropriate. We can hardly say it constituted an abuse of the sort in the cases cited by Dr. Mings.
The second alleged error is that after the planning commission rejected the hospital’s request a second time the appeal was brought before the board by one who was not an “interested party.” Subsection H of Article V of the City of Fort Smith’s zoning ordinance provides that an appeal of a zoning matter may be taken from the planning commission to the city board of directors by an “interested party.” Clearly, had the hospital appealed, it would have been an “interested party.” However, the appeal was made by Mr. Faulkner who owned property in the neighborhood some six blocks away and who had appeared before the planning commission and spoken in favor of allowing the parking lot to be used.
The issue of standing in matters of zoning appeals has been a troublesome one to say the least. It has stimulated controversy when it has arisen from appeals of decisions as to how land should be zoned. See Annot. 69 ALR 3d 805 (1976); Annot. 37 ALR 2d (1954); Annot. 168 ALR 13 (1947); Comment, Standing to Appeal Zoning Determinations: The “Aggrieved Person” Requirement, 64 Mich. L. Rev. 1070 (1966). See also M. Gitelman, The Role of Neighbors in Zoning Cases, 28 Ark. L. Rev. 221 (1974). It is perhaps even more complicated when the question is one of standing to contest the granting or denial of a conditional use.
While this case has been argued as if a conditional use were being sought to permit the parking lot, it appears to us that the hospital was requesting a modification of the conditional use it had obtained to construct the jogging trail. There is not complete agreement about whether issuance of a conditional use permit is a legislative or administrative or quasi-judicial function. See R. Wright, Zoning Law in Arkansas: A Comparative Analysis, 3 U.A.L.R. L.J. 421, 425 (1980). Cf. D. Newbern, Zoning Flexibility: Bored of Adjustment?, 30 Ark. L. Rev. 491, 495-498 (1977). As appeals from the planning commission go to the city’s legislative body, the board of directors, perhaps it should be considered a legislative matter. The majority tradition, however, has been to treat the conditional use request as invoking quasi-judicial powers of the planning commission and of the board. See D. Newbern, supra, at 494, n.9. When viewed as a quasi-judicial matter to be addressed by the planning commission and the city board of directors and when ultimately reviewed in a true judicial setting, such as a chancery court, the purpose and nature of zoning decisions can easily be forgotten.
Zoning is a public matter. While the rights and duties of landowners, neighbors, and the general public conferred and required by zoning laws must sometimes be interpreted and protected by the courts, we should recognize that basic land use planning is a legislative function in which we should interfere only when necessary.
Ark. Stat. Ann. § 19-2825(a) (Repl. 1980) provides in part:
The plan or plans of the municipality shall be prepared in order to promote, in accordance with present and future needs, the safety, morals, order, convenience, prosperity and general welfare of the citizens; and may provide, among other things, for efficiency and economy in the process of development, for the appropriate and best use of land, for convenience of traffic and circulation of people and goods, for safety from fire and other dangers, for adequate light and air in the use and occupancy of buildings, for healthful and convenient distribution of population, for good civic design and arrangement, for adequate public utilities and facilities, and for wise and efficient expenditure of funds.
That language should be kept in mind, and neither we nor the trial courts should succumb to the temptation to treat zoning matters as ordinary adversary proceedings in which members of the public have no protective interest. That temptation is indeed present. In the landmark case declaring the constitutionality of land use planning and zoning to achieve it, Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the U. S. Supreme Court analogized to the common law of nuisance. It should be realized in our time, however, that we are not dealing with the typical adversary proceeding, and our role should be to defer whenever possible to the legislative function of the city board in zoning disputes. See M. Gitelman, Judicial Review of Zoning in Arkansas, 23 Ark. L. Rev. 22 (1969).
That same deference should be given with respect to the question of standing. Again, we should recognize we are not dealing with a typical adversary proceeding. See J. Ayer, The Primitive Law of Standing in Land Use Disputes: Some Notes from a Dark Continent, 55 Iowa L. Rev. 344 (1969). Mr. Faulkner lived in the neighborhood, used the jogging trail, and participated in the first planning commission hearing as a proponent of the parking lot. There was evidence that parking had become a problem because the public was being allowed unrestricted use of the jogging trail. While we need not address here the question whether any member of the public would have standing as an “interested party,” we can not conclude that Mr. Faulkner had no such standing in these circumstances.
Affirmed.
Hickman, J., dissents.
Purtle, J., not participating. | [
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Johnson, C. J.,
(after stating the facts). Appellant’s requested instructions, Nos. 5 and 9, which were given by the trial court, are correct declarations of law when applied to the facts of this case. On the other hand, appellee’s requested instruction No. 8, as given by the trial court, is in irreconcilable conflict with instructions Nos. 5 and 9, given upon appellant’s theory. Appellee’s instruction No. 8 tells the jury: “The jury are instructed that the particular act of negligence which the plaintiff charges the defendant in this case is that one Rufus Elmore, a fellow-servant of plaintiff, pulled a valve and changed the way the fuel would fall into the fuel house, without giving any signal or warning that he was going to do so. With reference to this charge of negligence, the court tells you that the mere fact that Elmore pulled the chain at the time he did, and the mere fact that plaintiff got sawdust in his eye, would not be sufficient in itself to justify a finding on your part that Elmore was guilty of negligence.”
Appellant’s requested instruction No. 9 had, in effect, directed the jury to find for appellant, if they determined from the testimony that Elmore reversed the valve of the discharge pipe without warning to appellant, and thereby reversed the discharge of the fuel from the opposite side of the building in and upon appellant; and, if this were determined to be negligence upon Elmore’s part, and this was the proximate cause of appellant’s injury if any, then they would find for appellant. Appellee’s instruction No. 8 as given by the trial court, was in direct conflict with the views expressed in appellant’s requested instruction No. 9, because in instruction No. 8 the jury is directed in effect that appellant could not recover merely because Elmore negligently reversed the fuel valves, and was injured thereby. Under a long line of decisions of this court, it is reversible error to give conflicting instructions. Postal Telegraph-Cable Co. v. White, ante p. 361; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140.
Not only is appellee’s requested instruction No. 8 in conflict with appellant’s instructions, but it also invades the province of the jury, and is upon the weight of the evidence. It was a question for the jury to determine, and not for the court, whether or not the reversing of the fuel valves by Elmore, or the reversing of the discharge of the fuel into the fuel house, upon appellant, without warning, at the time and under the circumstances of this ease, was negligence; and, if so, whether or not this negligence was the proximate cause of the injury, if any.
This court has many times held that it is error for trial courts to point out inferences to be drawn from particular facts in evidence. Haley v. State, 49 Ark. 439, 5 S. W. 880; Rector v. Robins, 82 Ark. 424, 102 S. W. 209; McLemore v. State, 111 Ark. 457, 164 S. W. 119.
Many, many times we have also held that trial courts should not instruct juries upon the weight of -the evidence or give instructions which assume facts which are for the consideration of the jury. Polk v. State, 45 Ark. 165; Railroad Co. v. Byars, 58 Ark. 108, 23 S. W. 583; Murray v. Boyd, 58 Ark. 504, 25 S. W. 505; Hinson v. State, 133 Ark. 149, 201 S. W. 811; Railroad Co. v. Britton, 107 Ark. 158, 154 S. W. 215.
Many other alleged errors are pressed upon us for reversal, hut we assume that they will not recur upon retrial, therefore do not consider them.
For the error indicated, the cause is reversed, and remanded for new trial.
Smith, McHaney and Butler, JJ., dissent. | [
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Smith, J.
The only question involved on this appeal is whether, in the redemption of lands sold to the State for taxes, the county warrants of the county in which the land is located must be received by the county treasurer for the amount of taxes owing to the county. The circuit court held, under a petition for mandamus to require the acceptance of the tender of such warrants, that they must be accepted for that purpose, and the county treasurer has appealed from that judgment.
Section 10,100, Crawford & Moses’ Digest, provides the “mode of redemption” of land sold to an individual for the nonpayment of taxes, and reads as follows: “Any owner, or his agent, or. any other person for the owner desiring’ to redeem any land, town or city lot or part thereof sold for taxes, under or by virtue of any law of this State, may, within the time limited by law for such redemption, deposit with the county treasurer, upon the certificate of the clerk of the county court describing such land, town or city lot, an amount of money equal to t-lie taxes for which such land, or town or city lot was sold, together with penalty and cost and the taxes subsequently paid thereon by such person, or those claiming under him, with interest at the rate of 10 per cent, per annum on the whole amount so paid, and the county treasurer shall, upon the payment of said sum, within ten days thereafter notify the purchaser that said sum is in the treasury and subject to his order.”
This section is a re-enactment of § 5775, Mansfield’s Digest, with the added requirement that the county treasurer shall, within ten days after receiving the redemption money, notify the tax purchaser that said sum is in the treasury subject to his order.
This court, in the case of Murphy v. Smith, 49 Ark. 37, 3 S. W. 891, construed § 5775, Mansfield’s Digest, as requiring that the entire amount necessary to effect a redemption from a tax sale to an individual must be paid in the coin or treasury notes of the United States made legal tender by acts of Congress, that is, the. whole amount must be paid in money, and no part thereof may be paid in county warrants.
Section 10,101, Crawford & Moses’ Digest, defines the duty of the county treasurer, and § 10,102, Crawford & Moses’ Digest, defines the duty of the county clerk, in perfecting the redemption.
Section 10,104, Crawford & Moses’ Digest, has reference to the redemption of land sold to the State, and reads as follows: “Lands sold to the State may be redeemed within two years after sale, subject to the same restrictions, conditions and regulations as hereinbefore described in relation to the redemption of lands sold for taxes, by the application to the clerk of the county court, and payment of the same amount and penalty herein-before mentioned, and the taxes which would have accrued thereon if such land or lot had been continued on the tax books and the taxes extended to the county treasurer, and the amount due the State shall be paid by the county treasurer to the county' collector, who shall give duplicate receipts therefor, stating in said receipts the amount belonging to each fund, separately, one of which shall be immediately forwarded by the treasurer to the auditor, and the other to the clerk of the county court, who shall make quarterly reports to the Auditor of the amounts due the State on account of such redemption of any land sold to the State as herein provided. It shall be the duty of the clerk of the county court to make a note thereof on the record book of such sale provided for in this act.”
The insistence, for the reversal of the judgment of the court below, is that the statute providing for the redemption of lands sold to individuals having been construed as requiring payment in money, the statute providing for the redemption of lands sold to the State should receive the same construction, and the same requirement be imposed, and that redemptions are authorized in the latter case only upon the payment in money of the whole amount required to redeem, including the portion to which the county is entitled.
We do not so construe § 10,104, Crawford & Moses' Digest. We think its purpose is to prescribe a similar procedure to be followed by the landowner in either case. Section 10,104 does not expressly require payment in money, as does § 10,100 in case of sales to individuals. If the statute were so construed, grave doubt would arise as to its constitutionality, for § 10 of article 16 of the Constitution provides that: ‘ ‘ The taxes of counties, towns and cities shall only be payable in lawful currency of the United States, or the orders or warrants of said counties, towns and cities, respectively.” That statutes should be so construed as to render them constitutional if they are reasonably susceptible of such construction is a settled rule of interpretation. Stillwell v. Jackson, 77 Ark. 250, 93 S. W. 71; Dobbs v. Holland, 140 Ark. 398, 215 S. W. 742; Booe v. Sims, 139 Ark. 595, 215 S. W. 649; Commissioners, etc., v. Quapaw Club, 145 Ark. 283, 225 S. W. 886; Logan v. State, 150 Ark. 486, 234 S. W. 493; Board of Commissioners v. Furlow, 165 Ark. 63, 262 S. W. 991; Hazelrigg v. Board of Penitentiary Commissioners, 184 Ark. 154, 40 S. W. (2d) 998.
Section 10,104, Crawford & Moses’ Digest, will be better understood if it is read in connection with other statutes on the subject of payment of county taxes. Among these are the following:
Section 1988, Crawford & Moses’ Digest, provides that: “The county taxes of any county of this State, levied in pursuance of law, shall only be payable in the lawful currency of the United States or scrip or warrants of the county by whose authority the same were issued, drawn in pursuance of law and not inconsistent with this act. * * *”
Section 1993, Crawford & Moses’ Digest, provides that: “All county warrants and county scrip shall be receivable for any taxes for county purposes, except for interest on the public debt and for sinking fund, and for all debts due the county by whose authority the same were issued; * * * without regard to the time or date of issuance of such warrant, scrip, acceptance or money, or the purpose for which they were issued; and it is hereby made the duty of, and authority is hereby conferred upon, the county court of the respective, counties, or the judge thereof in vacation, to make all lawful orders compelling collectors, both county and municipal, to comply with the provisions and intent of this act. Provided, that nothing in this act shall authorize the collector to receive scrip issued since the adoption of the Constitution in payment of the tax levied to pay the indebtedness existing before the adoption of the Constitution.”
Section 2008, Crawford & Moses’ Digest, provides that: “All warrants drawn on the treasury shall be received, irrespective of their number and date, in payment of all taxes, duties, fines, penalties and forfeitures accruing to the county.”
Section 10,045, Crawford & Moses’ Digest, provides that: “The collector shall receive county warrants in payment of county taxes; * * *. Provided, this section shall not be so construed as to compel the acceptance of any order or warrant that by the laws of this State was required to be funded.” This section of the Digest has been amended by § 9 of act 275 of the Acts of 1933, page 843, but in a respect here unimportant to be considered.
These sections of the statutes, or similar statutes which they have amended, have been construed in the following cases: Daniel v. Askew, 36 Ark. 487; Whitthorne v. Jett, 39 Ark. 139; Worthen v. Roots, 34 Ark. 356; Murphy v. Smith, 49 Ark. 37, 3 S. W. 891; Richie v. Frazer, 50 Ark. 393, 8 S. W. 143; Crudup v. Ramsey, 54 Ark. 168, 15 S. W. 458; Hill v. Logan County, 57 Ark. 400, 21 S. W. 1063; St. Louis Nat. Bank v. Marion County, 72 Ark. 27, 79 S. W. 791; Bartlett v. Willis, 147 Ark. 374, 227 S. W. 596; Stanfield v. Kincannon, 185 Ark. 125, 46 S. W. (2d) 22; Stanfield v. Friddle, 185 Ark. 879, 50 S. W. (2d) 237. There are other cases to the same effect.
The purport of all the^e decisions is that a county may not refuse to receive its warrants in payment of any demand due it.
The subject was very thoroughly considered in the case of Stillwell v. Jackson, 77 Ark. 250, 93 S. W. 71. The facts in that case were that the county court of Ashley County made an order for the construction of a new courthouse, in which it was provided that “a special levy of two mills tax on the dollar be and the same is hereby levied on all the taxable property of Ashley County to build a new courthouse, and that said tax be receivable only in currency or proper warrants drawn by proper order on the courthouse fund.” The question was raised whether the courthouse tax could be paid in warrants drawn upon funds appropriated for ordinary county purposes.
There was a review of various sections of the Constitution in regard to the assessment and payment of taxes, and also of statutes upon that subject. After this review the court declared the law to be that ‘ ‘ all county warrants shall be receivable for all county taxes, except those levied to pay indebtedness existing at the time of the adoption of the Constitution and interest thereon.” The court there quoted from the case of Worthen v. Roots, 34 Ark. 366, as follows: “A review of all this legislation anterior and subsequent to the Constitution of 1874, together with that Constitution itself, reveals a settled policy, almost in terms enjoined by the Constitution itself, * * * of supporting the credit of the counties, and encouraains’ the citizens to render their services with alacrity, by making claims .-against the county a set-off for taxes."
In the case of Gould v. Davis, 133 Ark. 90, 202 S. W. 37, there was construed a special act providing for the funding of the indebtedness of Garland County, § 4 of this act provides that: “No county warrants hereafter issued by said county shall be receivable for taxes, nor in payment of any fines, penalty or forfeiture, but shall be payable only in the current money of the United States.” It was held that this section of the act was violative of § 10, article 16, of the Constitution, herein-above quoted from, and that the act was void on that account.
The effect of the numerous cases which have construed the various statutes relating to county revenues appear to clearly declare the policy and effect of the warrants in satisfaction of any claim due it.
The case of Murphy v. Smith, 49 Ark. 37, 3 S. W. 891, supra, is not contrary to this view. There the land had been sold to an individual, and the county’s demand for the taxes had been paid by the sale. Thereafter the landowner owed the county nothing on account of the taxes for the nonpayment of which the land had been sold. They had been paid. The demand was due to the tax purchaser, who was under no duty, statutory or otherwise, to receive anything except- lawful money; indeed, § 10,100, Crawford & Moses’ Digest, recognizes this right of the purchaser and gives its- sanction to be paid in money. When the sale is to the State, it is for the benefit of all the taxing agencies entitled to portions of the taxes, and the redemption is also for their benefit. It is, at last and in effect, a delayed payment of the taxes, which the law has permitted to be made, and the county then has no more right to refuse to accept its warrants in payment of its taxes than it originally had. It was still a demand due the county which the Constitution and the statutes of the State provide may be paid in the warrants of the county.
There is involved in this case no construction of Amendment to the Constitution No. 17 authorizing the levy and collection of a construction and building tax for purposes authorized by that amendment.
The writ of mandamus was therefore properly awarded, and the judgment of the circuit court will be affirmed. | [
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Butler, J.
On or about the 6 th day of November, 1926, the Illinois Bankers’ Life Association issued a joint policy of life insurance on the lives of Guy Patrick Hamilton and Maggie Hamilton, husband and wife, the survivor being named as beneficiary, in the sum of $1,000 for the consideration of $25.33, annual premium. This policy was taken over and its liability assumed by the Illinois Bankers’ Life Assurance Company.
Maggie Hamilton died on February 6, 1933, and proof of death was furnished the last-named corporation. The policy was not paid, and this suit was insti tuted, which resulted in a verdict and judgment for Guy P. Hamilton, the survivor.
This appeal challenges the correctness of the judgment on two grounds which were interposed as a defense in the lower court. The first, and the principal, defense made is that there was a lapse in the policy for the nonpayment of premiums, which policy was reinstated on the application of the insured. In this application the insured acknowledged the forfeiture of all claims under the original policy by reason of the lapse of same, and that, as an inducement to the company to reinstate, it was represented that the statements and answers contained in the original application were true when made and were true on the date of the application for reinstatement, and agreed that the same should be based exclusively upon the representations contained in that application and the original application for the policy, and under the condition that, if the statements, or any of them, should be untrue, the company should be under no liability by reason of the attempted reinstatement of the policy except for a return of the premiums paid since the date of the reinstatement; that the answers to the questions regarding the health of the insured and her consultation of a physician since the date of the original application were false, and, because of such false statements, there was no liability except for a return of the premiums which had been tendered.
The next defense interposed was that when the annual premium matured on November 6, 1932, its payment being necessary to carry the policy over another year, the same was not paid, and that the insured and the company entered into an extension agreement, extending the time of payment to May 6, 1933, by which extension agreement it was provided that, if the premium as extended was not paid at maturity, the policy should become null and void, and that, because Guy P. Hamilton, the appellee, jointly executed the same and did not pay, or offer to pay, the premium on the date of maturity, the policy became void.
The facts as shown by the evidence ,are that the policy lapsed for the nonpayment of premium due No vember 6, 1929, and thereafter, on June 11, 1930, the parties insured made, application for reinstatement, which application contained the stipulations hereinbefore set out, and that, in answer to the question propounded to the insured, Maggie Hamilton, in said application for reinstatement, “Have you been ill or injured or consulted a physician since the date of the application for this policy,” she answered, “No”; and in response to the question, “Are you now in good health and of sound constitution,” she answered, “Yes,” when in fact in 1927 she had suffered a paralytic stroke for which she had been treated by a physician. This physician testified that he did not know whether she had recovered or not.
It was also shown by another physician that Maggie Hamilton became ill about Christmas, 1932, suffering what appeared to be a light stroke of paralysis, from which she did not recover, and at that time she also had what is commonly known as leakage of the heart; that she died about the 7th day of February, 1933, from the heart disease and paralysis, but that the heart trouble was the preponderating cause of her death. This physician stated that he had known Maggie Hamilton for about three years, during which time she walked from her home to visit the sick and waited on them, and that the only indication he saw of any infirmity was that when she would step on something sharp, she would give in her foot; that during this time he would have passed her as an insurable risk.
The evidence relating to the stroke she suffered in 1927 was to the effect that this was a light attack which temporarily affected her left ankle, knee and wrist; that she apparently recovered except for a slight lameness in one of her ankles and one of her wrists troubled her some in lifting and in doing hard work; that at the time, of this stroke she was in bed for ten days.
It is the contention of the appellant that this state of facts rendered the policy void because, as it says, the right of reinstatement of the insured was not absolute, but depended upon the condition of the health of the applicant, and that, since they had agreed in the applica tion for reinstatement that any false answers made respecting the condition of health would invalidate the policy, they are. bound thereby.
To sustain this contention, the appellant relies on the case of Ward v. New York Life Ins. Co., a South Carolina case, reported in 129 S. C. 121, 123 S. E. 820. It also cites as authority for the point raised, Childress v. Fraternal Union of America, a Tennessee case, reported in 113 Tenn. 252, 82 S. W. 832, and Woodmen, etc., v. Jackson, 80 Ark. 419, 97 S. W. 673. In the first-named case the statement of facts does not disclose the date of the issuance of the policy. It lapsed for a failure to pay the premium on October 3, 1921, and was reinstated by the insurer, after the days of grace had expired, on an application which admittedly contained false statements material to the risk. The insured died prior to February 27, 1922, since the proof, of death was made on that date. The beneficiary brought suit to recover, relying on a statute of the State of South Carolina, the applicable portion of which is as follows: “All life insurance companies that shall receive the premium on any policy, for the space of two years- shall be deemed and taken to have waived any right they may have had to dispute the truth of the application for insurance; that the assured person had made false representations, and the said application shall be deemed and taken to be true. ’ ’ The original contract of insurance is not set out, but the court sustained the defense interposed by the insurer that the policy was invalid because of the false statements and, in overruling the contention of the beneficiary, held that the statute relied on referred only to the application made for the issuance of the policy, and had no reference to applications made for reinstatement of policies where the same had lapsed for failure to pay the premiums. The policy appears to have contained an “incontestable clause,” and in disposing of this, the. court said: ‘ ‘ The incontestable clause in the policy is not in the case, and we can base no binding judgment thereon.”
In the case at bar it is the contention of the appellee that the defense of falsity of statements in the applica tion for reinstatement cannot avail the insurer because of a clause in the original policy which provides as follows: “After this policy shall have been in force two full years during the. lifetime of the insured, it shall be incontestable except for nonpayment of premiums. ’ ’ The appellee takes the position that this provision inures to his benefit, although the policy was revived by reinstatement, the application for which contained untrue statements; first, because to avoid the policy for these would be to attach a condition to the right of reinstatement not provided in the original contract; second, that, even if this condition had been authorized, more than two years had elapsed between the date of reinstatement and the death of the insured which would make the incontestable clause effective; and, third, that the false statements were not material to the risk.
Whether or not a clause, in insurance policies renders the contract incontestable from the date of the issuance of the policy is a question of sharp conflict of authority on the subject. Some respectable courts hold that such contract is invalid on the theory that, if it was procured by fraud, it is no contract, and can never become such if the misrepresentations were of a material nature calculated to deceive and made with that intent. Other courts of equal repute hold to the contrary, basing their conclusions on the ground that the clause was written by the insurer in its own terms for the purpose of inducing the public to enter into contracts with it upon the assurance that, after the insurer had accepted the risk, the validity of the contract will not be questioned. The insurer had all the time it desired to investigate the risk before accepting it and should, and likely does, anticipate that deceit might be practiced by applicants for insurance, and, through its own processes, has means to discover if such deceit has been practiced, and, having announced its satisfaction to bind itself, no subsequently discovered circumstance should avoid the policy except the nonpayment of premiums.
In National Annuity Ass’n v. Carter, 96 Ark. 495, 132 S. W. 633, this court has adopted the rule that the incontestable clause is valid, even where it takes effect immediately upon the issuance of the policy. But where, as in the instant case, the agreement not to contest the validity of the policy is postponed for a reasonable and definite period within which time the insurer has the opportunity to ascertain the truth of the representations made, it seems that the provision relating to incontestability is universally held to be valid. Here, more than two years had elapsed between the date of the issuance of the policy and its laps.e for the nonpayment of premiums ; also, more than two years had elapsed from the date of the reinstatement to the date of the death of the insured. From this the question is presented, does the application for reinstatement which contains false statements annul the provision in the policy against incontestability? We hold it does not.
In the insurance contract, as one of the inducements to the insured to enter into it, there is the following clause:. “This policy, after default in payment of any premium, may be. reinstated upon both of the insured furnishing to the home office satisfactory and acceptable evidence of insurability and paying all past-due premiums with compound interest thereon at the rate of six per cent, per annum.”. Therefore, as is held in National Annuity Ass’n v. Carter, supra; New York Life Ins. Co. v. Adams, 151 Ark. 123, 235 S. W. 412; Security Life Ins. Co. v. Leeper, 171 Ark. 77, 284 S. W. 12; and Equitable Life Ins. Co. v. King, 178 Ark. 293, 10 S. W. (2d) 891, “the reinstatement was not granted as a gratuity on the part of the company, but as a part of the contract expressed in the policy itself to the effect that a reinstatement could be obtained as a matter of right, * * * upon presentation at the home office, of evidence of insurability satisfactory^ to the company.”
It will be noted that the provision for reinstatement contained in the policy in the case at bar places no burden or restriction upon the right of reinstatement save the furnishing’ of satisfactory and acceptable evidence of insurability and the payment of all past-due premiums with compound interest thereon at the rate, of six per cent, per annum, the latter provision being ample consideration moving to the company. As is held in the Arkansas cases cited, the company had no right to enlarge the terms upon which reinstatement conld be obtained. It had the right to defer its action on the application for reinstatement for a reasonable time in which it might investigate the insurability of the applicant, and there was no requirement in the original contract that the answers to the questions in the application for reinstatement should be true, and a condition precedent to the reinstatement of the policy and to its validity when so reinstated. In this particular the contract differs from that in the ease of Woodmen, etc., v. Jackson, supra, cited and relied upon by the appellant. In that case the insurer was a fraternal order insuring its members. Its bylaws were made a part of the original contract of insurance, one section of which provided for reinstatement of a suspended member upon satisfactory answers being given by him in his application relative to his use of intoxicants, narcotics, and his health at the time of application. It provided, in effect, that, if any of the statements made by the applicant were untrue, reinstatement should be unavailing and he was required to furnish the statements “as a condition precedent to reinstatement and waiving all rights thereto if the said written statements shall be found to be untrue.
In our cases cited supra, the doctrine is laid down that, since the reinstatement is not a gratuity, the insurer had no right to enlarge the terms upon which reinstatement could be obtained. In the Leeper case, supra, it was the contention that by reason of lapse, the. original policy was void and the reinstatement created a new contract. In the original policy there was a provision that where the insured committed suicide the- policy should be void, but another clause provided that the policy should be incontestable after two years from the date of its issuance. The policy lapsed after two years had expired and was reinstated, and in the application for reinstatement there was a stipulation that, in the event of self-destruction within one year from the date of approval of the application for reinstatement, the amount payable as a death benefit should be equal only to two annual premiums on said policy, and no more. The court, under the rule announced in the Adams case, supra, held that this stipulation was an enlargement of the original contract of the terms upon which reinstatement could be obtained, that there was no new contract created by the reinstatement, but a revival and continuance of the original, and that, although it appeared that Leeper had committed suicide within one year from the date of the reinstatement, the incontestable clause in the original policy was applicable, and the fact that he was a suicide was no defense.
So, in the instant case the reinstatement created no new contract, but revived the original to the same extent as if there had 'been no lapse. This rendered the incontestable clause available and certainly, since more than two years has elapsed between the date of the reinstatement and the death of the insured, this clause is effectual to waive all defenses except the one reserved in the contract — namely, the nonpayment of premiums. Our cases cited have been approved, and their doctrine reaffirmed in the recent case of Life & Casualty Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S. W. (2d) 199, and are in accordance with the weight of authority. Mutual Life Ins. Co. of N. Y. v. Lovejoy, 201 Ala. 337, 78 So. 209; Becker v. Ill. Life Ins. Co., 227 Mich. 388, 198 N. W. 884; Mutual Life Ins. Co., etc., v. Hurni Co., 263 U. S. 167, 44 S. Ct. 90; Wambolt v. Reserve, etc., Co., 191 N. C. 32, 131 S. E. 395, and cases therein cited.
There is no contrary rule announced in Childress v. Fraternal Union of America, supra, relied on by the appellant, for in that case the insured was a suicide, and the contract provided that in the event of suicide the indemnity to be paid to the beneficiary should be one-third of the amount otherwise due under the policy. The incontestable clause in that contract provided only that the validity of the policy could not be questioned after two years from its date except upon the ground of certain false answers made and upon this ground it might be questioned at any time. But the suicide clause was not one which entered into the validity of the original contract, and the incontestable clause had no reference to the suicide clause, which latter clause was in no wise affected by the former.
The second ground presented for reversal in our opinion is without merit. The extension agreement extended the time of the payment of the annual premium due November 6, 1932, to May 6, 1933, and by reason of this the policy was in full force and effect at the time of the death of the insured. Since, under the original contract of insurance as reinstated, the company was liable to the survivor for the face of the policy, this was effective to work a payment of the premium extended, and it would have been a useless course of procedure for the survivor to have paid the premium, as it would have resulted only in its being returned to him by the insurer. The survivor brought suit for the balance on the policy less the amount due the company for the annual premium, payment of which had been extended. This was the correct amount due, and, having recovered that sum, the court properly awarded the penalty and attorney’s fees.
The judgment of the trial court is correct, and it is therefore affirmed. | [
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Kirby, J.,
(after stating the facts). Appellants concede the right of appellees, whose judgment survived against them, to revive the cause against the heirs of J. A. Price, deceased, and contend correctly that the court erred in setting aside the decree of foreclosure in making such order of revival. Sections 1062-65, 6311, C. & M. Digest ; Thompson v. Lee, 174 Ark. 868, 296 S. W. 706; Hill v. Brittain, 178 Ark. 784, 12 S. W. (2d) 869.
The decree erroneously vacated had been entered at a former term of the court against J. A. Price, foreclosing the lien against his lands only, and there was no giround alleged or existing for its vacation, but only proper allegations for the revival of the cause against his heirs, who succeeded to his interest, necessary to be had for execution of their judgment, which survived to appellees 'against said heirs. Section 6311, C. & M. Digest; DeYampert v. Manley, 127 Ark. 153, 191 S. W. 905.
It was necessary that the parties in interest be before the court for execution of the decree, since the foreclosure could not be effected without a sale of the lands and confirmation thereof, and the action had to be revived in the name of the successors to the title to give them an opportunity to be heard relative thereto. The heirs only succeeded by inheritance to the rights of the decedent, J. A. Price, and the valid decree of foreclosure of the 'mortgage against these lands only survived to appellees. None of the parties, the heirs or the judgment creditors, had any right tó the vacation of the decree, and the court erred in making any such order.
The said decree vacating the judgment is reversed, and the cause will he remanded, with directions to proceed regularly to its execution and the foreclosure against the lands after proper revival of the cause has been completed. It is so ordered. | [
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Per Curiam :
This is an original petition for mandamus by Margaret Agnes Edmondson against Hon. J. Y. Bourland, as judge of the Sebastian Chancery Court for the Fort Smith District, to compel him, as such chancellor, to allow her to file an answer and cross-complaint in an action pending in said court, and to file a motion to set aside an appointment of a guardian ad litem for her as an insane person.
The record shows that Francis A. Vaughan, as executrix and trustee of the will of Thomas W-. Edmondson, deceased, brought suit in said chancery court to construe said will and to terminate the trust. It was ordered by the chancery court that Margaret Agnes Edmondson, widow of said decedent, be made a party to the suit, to the end that her interest, if any, in said estate be adjudicated. It was claimed that she had elected to take dower in said estate, and had filed her renunciation under the will when it was admitted to probate. She had been judicially declared insane, and a guardian had been appointed for her by the probate court of Sebastian County for the Fort Smith District. A guardian ad litem was appointed for her in the suit to construe the will. Margaret Agnes Edmondson, who is now a resident o>f St. Louis, Mo., through attorneys of her own selection, filed a motion in said chancery, court to set aside the ap pointment of a guardian ad litem for her as an insane person. The court refused to let her attorneys file said motion, and also struck from the files of the court an answer and cross-complaint of said Margaret Agnes Ed-mondson, which had been filed a few days 'before by her said attorneys, on the ground that her defense to the action could only be made by the guardian ad litem appointed by the court. The court refused to let the attorneys selected by said petitioner file an answer or cross-complaint for her. Said petitioner alleges that the order adjudging her to be an insane person is not a valid order; that she is not now an insane person.
Under these circumstances mandamus is a proper remedy. While it is well settled that a writ of mandamus will not be allowed to control the judicial discretion of a trial court, or to require a judicial tribunal to act in a particular way, there are limitations to the rule, and it may sometimes be employed to prevent irreparable injury, as where the remedy by appeal is inadequate. 38 C. J., pp. 608-609.
It is plain that the propriety of the writ must be determined for each case upon its own peculiar merits. In the application of the principle in Ex parte Watters, 180 Ala. 523, 61 So. 904, the Supreme Court of Alabama held that the erroneous refusal of the trial court to allow an amendment to the complaint may be corrected by mandamus, but that the erroneous allowance of an amendment cannot be reviewed by such proceeding. The court said that the basis for the distinction must be found in the varying degrees of injury from the respective errors, each being equally redressible on appeal. See also Ex parte Uppercu, 239 U. S. 435, 36 S. Ct. 140.
In re Conoway, 178 U. S. 421, 20 S. Ct. 951, the court had under consideration a petition for a writ of mandamus to the judges of a circuit court of the United States. The petition for a writ of mandamus alleged that the circuit court had set aside the service of summons on a defendant because the action had abated by his death, before the service of process upon him, and because the circuit court acquire none over his executor. In the Supreme Court it was objected that mandamus was not the proper remedy, because it was not a case in which the court refused to entertain jurisdiction. It was claimed that the action was still pending in the circuit court, and would doubtless proceed to final judgment. The Supreme Court said that there could be no final .judgment against the original defendant, for he was deceased, and none against the executor, as to the estate he represented, because he had not been made a party to the action. Consequently .the Supreme Court said that, if the ruling of the circuit court was erroneous, its judgment could not be redressed by appeal, because there was no one to appeal.
So here the petitioner alleges that the order of the probate court adjudging her to be an insane person was not a valid order, and that she is not now insane. She is claiming an interest in the property embraced in the will, and would not be able to appeal from an ad-‘ verse judgment if she is not allowed to appear by counsel of her own selection.
The court should allow her to appear by counsel of her own selection, and can still protect her interest by appropriate orders if it shall deem her to be insane. The proceeding is not to control the chancery court in its exercise of a judicial discretion, nor to compel it to rule in a particular way in the trial of the cause, but to prevent an abuse of the discretion of the court. Under the facts stated, the action of the court, so far as the rights of petitioner are concerned, amounted to a refusal to proceed with the case, through an erroneous determination of a preliminary question of practice or procedure. In other words, the action of the court amounted to such an abuse of discretion as that it may be said to have been arbitrary. State v. District Court, etc., 38 Mont. 166, 99 Pac. 291, 35 L. R. A. (N. S.) 1098; and High on Extraordinary Legal Remedies, § 151.
We think mandamus was the proper remedy, and direct a writ to issue commanding said chancery court to proceed in accordance with the views herein stated. It is so ordered. | [
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Johnson, C. J.
Appellee, Walter E. Taylor, State Bank Commissioner, recovered a default judgment against appellant, H. B. Case, in the Stone County Chancery Court in a sum in excess of $8,000. The indebtedness was secured by a pledge of $10,000 in common and $5,000 in preferred stocks of the Batesville White Lime Company. This stock was directed to be sold by John F. Crammer, Special Deputy Bank Commissioner in charge of the North Arkansas Bank, insolvent, at public sale in Batesville, Arkansas, after'having advertised said sale for ten days by at least one insertion in a weekly paper in Stone County and in Independence County, and by giving the defendant written notice of said sale, etc. The sale was effected, and a report thereof made by the Special Commissioner, whereupon appellant interposed the following exceptions thereto:
“First, that the sale can only be made by the circuit clerk, as ex-officio commissioner.
“Second, that no notice of sale, was published in Independence County pursuant to the decree.
“Third, that John F. (Trammer was an interested party in the proceedings, therefore could not be legally appointed special commissioner.”
Section 2196 of Crawford & Moses’ Digest provides: “That the clerks of the circuit courts in the several counties shall be clerks of the chancery courts and ex-officio masters and commissioners thereof in each of said counties,” etc.
Section 1365 provides: “The judge may appoint any other person master or commissioner in special causes in said court.”
It will be seen that § 1365 of Crawford & Moses’ Digest, cited supra, gives to chancery courts full power and authority to designate and appoint any qualified person in special causes as commissioner.
Appellant’s second exception to the report of sale is likewise without merit. The chancery court’s order confirming the sale finds: “That said sale was in all respects regular, and in conformity to law and the decree in said case, and same is hereby, in all things, approved and confirmed. ’ ’
Since the trial court found that the sale was in all respects regular and in conformity with the decree in said cause, we must presume that his findings were supported by the facts. The mere fact that only one proof in publication appears in this record does not establish the alleged fact that it was the only one published. Fid dyment v. Bateman, 97 Ark. 76, 133 S. W. 192. Price v. Gunn, 114 Ark. 551, 170 S. W. 247, L. R. A. 1915C, 158.
The contention that John F. Grammer, liquidating agent of the North Arkansas Bank, was an interested party is likewise without merit.
The Bank Commissioner and his agents hold property as trustees and not as owners. The possession thus acquired is analogous to that of a receiver, and it is common practice for receivers to conduct sales of property held by them as such.
The judgment is affirmed. | [
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Mehaffy, J.
The appellee brought suit in the Arkansas Circuit Court for $322, alleging that this amount was due him for brokerage commission for the sale by him for the Houston Bice Company of 4,025 pockets of rice to certain parties named. His complaint showed the amount of commission due for each sale, and as to four of the sales there was no controversy in any way. The appellant shipped the rice and the purchaser paid for it according to the contract made by appellee. The Wheeler Wholesale Grocer Company, however, refused to accept the rice shipped to it, and appellee claimed a commission upon this sale of $64.
The appellant answered, admitting the allegations of the complaint, but filed a counterclaim, alleging that appellee undertook, as broker, to sell the Wheeler Wholesale Grocer Company 800 pockets of rice at a price of 6 5/16 cents per pound. The appellee advised this appellant by wire that the sale was consummated, and confirmed the wire with written acceptance, and caused to be forwarded shipping instructions. It alleged that it complied with the contract, and that the Wheeler Wholesale Grocery Company refused to accept, and set up as a basis for their refusal that they had not contracted with the plaintiff for the purchase of the rice. They had filed no agreement. It also alleged that it immediately advised appellee by wire to secure the written confirmation, and that he failed or refused to do this, and that it was impossible to compel the Wheeler Wholesale Grocery Company to accept the rice, and that it' had to pay demurrage amounting to $66, storage amounting to $39.95, and that it had to sell the rice for 5 7/8 instead of 6 5/16 cents, thereby losing the difference, and asked .judgment against appellee for $496.77.
There was a judgment for the appellee for $278. Appellant filed motion for a new trial, which was overruled, and this appeal is prosecuted to reverse the judgment of the circuit court.
Appellant says there are two questions in the case. First, is a broker or agent liable to his principal for damages in failure to carry out principal’s instructions? And second, is there evidence in the record sufficient to support the verdict and judgment of the trial court?
We agree with the appellant that the agent is bound to the exercise of the utmost good faith towards his employer or principal. If one who undertakes the business of another is capable of managing it, and neglects to do so with proper care, and damages result from his failure to exercise proper care, he would, of course, be liable. There is no question in this case about the agent being capable. The only question is, was he guilty of negligence that resulted in a loss to the principal?
“Every one, whether designated agent, trustee, servant, or what not, who is under contract or other legal obligation to represent or act for another in any particular business or line of business, or for any valuable purpose, must be loyal and faithful to the interest of such other in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it. This is a rule of commonsense and honesty, as well as of law.” Walthour v. Pratt, 173 Ark. 617, 292 S. W. 1017; Coyne Brothers v. Feazel, 129 Ark. 163, 195 S. W. 391; Wright v. Bennett, 150 Ark. 154, 233 S. W. 1089.
The broker in the instant case sold to the Wheeler Wholesale Grocery Company 800 sacks of rice, and notified the Houston Rice Company, whereupon the Houston Rice Company confirmed the sale, and sent to appellee contracts to be signed by the Wheeler Wholesale Grocery Company. If it were necessary to have these contracts signed before the shipment of the rice, then the appellant itself was guilty of negligence in shipping the rice before it received the signed contracts.
The evidence shows in this case that the appellee did all he could do; he received the contracts from the appellant, and immediately sent them to the purchaser to be signed, but they were not signed. The appellee could do nothing else. He could not compel, and it was not his duty to try to compel, the purchaser to sign the contract. It was his duty to present it or send it to him to be signed, just as he did, and the fact that the grocery company or purchaser failed to sign the contract certainly could not constitute negligence on the part of the broker.
Mr. Mooring testified that he forwarded the contract to the appellee to be signed, and that he had no record of ever receiving it back; that, after having sent the contract and failing to get it signed and returned, he shipped the rice to the Wheeler Grocery Company. Mr. Mooring also testified that they were at the time dealing with from 75 to 100 brokers, and that he had knowledge of the methods and customs of trade, and that the appellee, along with brokers in a good many other markets, usually and customarily secured the buyer’s signature on their sales confirmation blanks at the time the orders were placed by telegraph. He said, however, that there are a great many brokers in a good many markets that do not use those forms at all. He testified that, in so far as the Reeves Company is concerned, it was his knowledge that they almost always sent signed sales memorandum in connection with the bookings they handled for them. If that were the custom,- and the seller relied on that, then it was certainly negligent in shipping the rice before it received the signed memorandum. This witness also said that a very large portion of the rice crop is moved each year on sales consummated by telegraph on which no other contract or evidence exists. If this is true, if the contract rested on the telegraph messages, and no written contract was to be signed, then the Reeves Company certainly did all that it was expected to do. If, on the other hand, in order to consummate the sale and justify the seller in shipping the rice, it was necessary to have a signed contract, then in that event the Reeves Company, according to the evidence, did all that it could be required to do. In other words, we do not think that the evidence shows that the Reeves Company was guilty of any negligence.
In this case the parties waived a jury, and the cause was submitted to the court sitting as a jury, and the finding of the judge when sitting as a jury is as binding as the verdict of a jury, and cannot be set aside by this court if there is any substantial evidence to sustain it. The most that can be said in this case by appellant is that the evidence was conflicting. That being true, the finding of the court is conclusive.
As to the next question, that is, whether there was sufficient evidence to support the judgment, it is only necessary to say that the answer admitted the allegations of the complaint, and it was admitted that the sales claimed to have been made by the Reeves Company were actually made by it, and there is no controversy about the commission. Whether or not the appellee would have been entitled to a commission of $64 for the sale to the grocery company is not involved in this appeal, the appellee having taken no appeal as to it.'
There is in evidence a letter from the grocery company, which, whether written by the grocery company or not, would, we think, be sufficient to justify both parties in believing that the grocery company had purchased the rice and intended to pay for it. And that letter is addressed to Houston Rice Mills, Stuttgart, Arkansas, and is as follows:
‘ ‘ Gentlemen:
“Referring- to two cars of rice booked’ with you, in shipping- out will thank you to route in connection with the Frisco lines, care Seaboard at Birmingham, rates being- equal, etc. We especially want Seaboard routing-, as we are located on their tracks at Marion.
“Yours truly,
“The Wheeler Wholesale Grocery Company.”
This was signed in typewriter. It was, however, written on the letterhead of the grocery company; and, in addition to this letter, a letter was received from the railroad agent also* about routing- the shipment.
We have reached the conclusion that the evidence is amply sufficient to support the verdict" and judgment of the court, and the judgment is therefore affirmed. | [
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Smith, J.
Appellee recovered judgment for the amount of a 'benefit certificate issued to her on the life of her mother by the appellant order. For the reversal of the judgment it is insisted that the monthly dues were not paid within the time required by the by-laws of the order, and that an erroneous instruction on the subject of the waiver of this payment was given by the court, and that the proof of death was not made within sixty days, as required by the by-laws.
The certificate sued on is identical with the one set out in the opinion in the case of United Order of Good Samaritans v. Thompson, 172 Ark. 884, 290 S. W. 965, and the by-law which we held prevented a recovery in that case was offered for the same purpose in the instant case. This by-law provided that dues should be paid by the 10th of each month, and, if not so paid, the delinquent member should be automatically suspended and no liability be enforced against the order during such suspension. The insured died within less than thirty days of the time of payment of the alleged delinquent dues. The by-law further provided that, “should the dues be paid, neither the insured nor the beneficiaries shall be entitled to any benefits if sickness or death occurs before the expiration of thirty days. Also, the subsequent payment- of such arrears shall not entitle the insured or beneficiary to any benefits for sickness or death occurring during the period of such suspension.”
In construing the language just quoted, which was also quoted in the Thompson case, supra, we held that the subsequent, payment of delinquent dues to the order would not entitle the beneficiary to recover if the insured died within thirty days of the date of such payment, for the reason that “the section (quoted) further provides that, should the dues be paid, neither the insured nor the 'beneficiaries shall be entitled to any benefits for sickness or death occurring during the period of such suspension.”
The testimony was-conflicting as to whether the dues had been paid within the time required by the by-laws, and was legally sufficient to support a finding either way on that subject. But the court gave, over appellant’s objection, an oral instruction in which the jury was told that, “if they (the dues) were not paid by the 10th, if the company accepted them as payment, then they would be estopped from denying that they had received it, thereby they would waive prompt payment of the premiums if they accepted the premiums and kept them. ” The effect of this instruction is to nullify the provision of the by-law quoted above, which, we held in the Thompson ease, was valid, that is, that the subsequent payment of delinquent dues did not, for a period of thirty days after such payment, reinstate the delinquent. The court was in error therefore in telling the jury that the order was estopped, by the receipt of this delinquent payment, from relying on the by-law quoted.
There was conflicting testimony as to whether the. proof of death had been made within sixty days after the death of the insured, as the by-laws of the order required. On behalf of appellee the testimony was to the effect, (1) that proof of death was furnished within the sixty days, and (2) that, within that time, the order denied liability on the certificate. Proof of either of these facts would suffice to meet the requirement in regard to proof of death, and we think the testimony was legally sufficient to support both of them.
But, for the error indicated, the judgment must be reversed, and it is so ordered. | [
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Hart, C. J.,
(after stating the facts). 'Counsel for appellant relies upon the principles of law decided in Brown v. Brown, 38 Ark. 324; Casteel v. Casteel, 38 Ark. 477; and Williams v. Williams, 150 Ark. 319, 234 S. W. 169. Under the principles of law decided in these cases, alimony is a continuing allotment of sums payable at regular intervals for the support of the wife from year to year. Although no definite time is fixed during which it is to continue, it will, from its very nature, cease with the death of either party; or, upon the marriage of the wife, the complainant may apply to the court to be re lieved from further payment. It lias been held, however, that such a remarriage does not call for a modification or vacation of an allowance for alimony, where the alimony was awarded in gross, or in lieu of, or as a substitute for, all of the wife’s property rights. Cohen v. Cohen, 150 Cal. 99, 88 Pac. 270, 11 Ann. Cas. 520; and Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028.
The alimony awarded in the divorce decree in the present case shows that it was in lieu of all interest that Mrs. E. E. Erwin may have had or .might thereafter acquire in any property belonging to C. M. Erwin. The decree recites that said alimony be paid in full accord of any right, title or interest that Mrs. E. E. Erwin had in any property of any kind or nature belonging to 'C. M. Erwin. This shows that the parties, by agreement, fixed a sum to be paid by the husband to the wife for alimony and in lieu of her right to a division of his property, under § 3511 of Crawford & Moses’ Digest. This brings the case within the principles of law decided in the California and Wisconsin cases above cited. That principle of law has been recognized by this court in the following cases: Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, 129 A. S. R. 102; Green v. Green, 168 Ark. 937, 272 S. W. 655; and Dunn v. Dunn, 174 Ark. 517, 295 S. W. 963.
In the Pryor case the court held that, where a husband and wife, in contemplation óf immediate divorce, entered into a contract whereby he agreed to pay her certain sums of money at stated times, and they voluntarily caused this contract to be made- part of the decree for divorce, the decree cannot subsequently be modified in so far as it is based on the contract, for a modification of the decree would be a modification of the contract itself; but, should the court find the allowance excessive, it may decline to permit its extraordinary process to be used to collect more than a just and reasonable allowance.
In the Green case the court held that a decree for an accrued sum as alimony becomes final with the end of the term, and cannot be set aside at a subsequent term, even though found to be erroneous. In discussing the question the court said:
“A continuing order of court for the payment of alimony remains within the control of the court from time to time, to be altered according to changes in the circumstances of the parties. A decree rendered for an accrued sum becomes final with the end of the term, and cannot be set aside at a subsequent term, even though found to be erroneous. In that respect it is the same as any other judgment or decree of a court of record.”
In the Dunn case the court held that, where a wife was granted a divorce and decreed one-third of her husband’s personal property absolutely and one-third of his real estate for life, and she afterwards agreed to accept $1,200 in lieu of the property rights under the decree, it was error to refuse to confirm such settlement, in the absence of any showing of false representations or coercion.
The result of our views is that the decree of the chancery court must be affirmed. | [
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Smith, J.
This appeal is from a judgment of the circuit court, denying appellant’s claim for damages to a tract of land which was owned by a man named Davis at the time an order of condemnation was made laying out a public road across the land.
Davis delivered to appellant a deed to the land and an assignment in writing of the claim for damages, and both instruments were filed for record on the same day and within less than one year of the date of the order of condemnation by the county court. The claim was disallowed by the county court, and by the circuit court on the appeal to that court, and the judgment of the circuit court appears to have been based upon the finding of fact, recited in the judgment, that appellant “purchased the land after having full knowledge that the county court had made the change in said road, and his assignment of the alleged cause of action was made some months after the title had passed from his grantor.”
If it were material to determine whether the assignment of the claim for damages had been made at a date subsequent to the delivery of the deed, this question of fact should have been submitted to the jury, as the testimony was conflicting on this question. The circuit court, however, withdrew the case from the jury and made this finding of fact, which was error, for the reason that the question is one for the jury.
The testimony on the part of the appellant was to the effect that he refused to accept the deed until the claim for damages had been assigned, and that there was a simultaneous delivery of these instruments, and that both were filed for record on the same day.
However, we regard this question of fact as immaterial, for, if it be said that the deed did not operate to convey and assign the cause of action (which we do not decide), the cause of action was assignable (§ 6303, C. & M. Digest), and the assignment was made within less fhan one year of the date of the order of the county court condemning the land, and the claim for damages based on the assignment was also filed with the county court for allowance within less than a year of that date.
The order of the county court appears to have been based upon the act construed in the case of Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, which appears as § 5249, C. & M. Digest. Under this section the landowner whose land is taken or damaged by the order of the county court has twelve months within which to file a claim. Appellant became the owner of the land and of the cause of action for its damage within twelve months of the date of the order of the county court, and, as it is -alleged, and appears not to be denied, that his predecessor in title received no compensation, he is entitled to demand the compensation to which his grantor would have been entitled had the land not been sold. If therefore the right to sue for the damage to the land did not arise from the acquisition of the title thereto under the deed, it was given by the assignment of that cause of action, and, as the claim was filed within the time limited by the statute, it should have, been heard on its merits.
The judgment will therefore be reversed, and the cause remanded, with directions to assess such damages in appellant’s favor as the law and the testimony require. | [
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Mehaffy, J.
Tbe appellant was convicted of tlie crime of perjury, his punishment fixed at one year in the penitentiary, and he prosecutes this appeal to reverse the judgment of the circuit court. Appellant has filed no abstract or brief, hut his motion for a new trial raised the questions that the verdict was contrary to law and to the evidence and that the court erred in giving and refusing certain instructions.
The indictment charged, in proper form, that appellant committed the crime of perjury in testifying falsely at a trial in the Hempstead Circuit Court, in a case where Gray Dodson was charged with the crime of selling whiskey; that appellant testified in said case that he saw N. C. Reed and C. E. Hester at the home of Gray Dodson on a certain date, and that Reed and Hester came to Dodson’s house, and that appellant was on the front porch of Dodson’s house, and that Reed and Hester took a quart fruit-jar of whiskey out of the car and brought it on Gray Dodson’s premises, and that appellant and Dodson drank some of the whiskey.
The witnesses Reed and Hester both testified that the testimony given by appellant in the trial of Dodson was not true; that they did not take any whiskey there, but bought the whiskey from Dodson. Dodson was being tried for selling whiskey, and appellant was a witness, and undertook by his testimony to show that Reed and Hester brought the whiskey there and that they did not buy it from Dodson. The question was whether Dodson sold whiskey. This was a material question in the trial of said Dodson. There was ample evidence to justify the jury in finding the defendant guilty. There is no dispute about the witness having been sworn and about his testifying in the ease of State v. Dodson.
A number of other witnesses testified, but it is not important to set out the testimony. There was some conflict in the testimony about whether certain witnesses were present, and also about whether some of the witnesses who testified were at Dodson’s place at the time it was charged the whiskey was sold, but these were questions for the jury, and the verdict settled them against the appellant. Wright v. State, 177 Ark. 1039, 9 S. W. (2d) 233.
The appellant urges a reversal of the case because the .court, in one of the instructions, told the .jury, with respect to the materiality of the testimony, “if you find he gave such testimony, you are told it was material.” In other words, the court told the jury that the testimony was material, and appellant contends that this question should have been submitted to the jury.
All the evidence with reference to the trial of State v. Dodson and the testimony of appellant given in that case is uncontradicted, and, when the facts are undisputed, the question of whether the testimony is material is for the court and not for the jury. 2 Wharton’s Criminal Law, 1700.
“When there is no dispute about the facts sworn to, the question whether the testimony on which perjury is assigned is material, is a question of law to be decided by the court, and not of fact to be passed on by the jury.” Nelson v. State, 32 Ark. 192; Grissom v. State, 88 Ark. 115, 113 S. W. 1011; Barre v. State, 99 Ark. 629, 139 S. W. 641; 30 Cyc. 1456.
It was therefore proper for the court to tell the jury that the testimony was material.
Appellant also complains at the refusal of the court to give instruction No. 7, requested by him, which, in effect, told the jury that, if the evidence on behalf of the defendant raised in their minds a reasonable doubt, they must acquit. This was not a correct instruction. If, after considering the evidence in the whole case, there was a reasonable doubt, he should have been acquitted. But the court fully and correctly instructed the jury with reference to reasonable doubt, and what we have said above disposes of all the other questions raised by the defendant.
The judgment of the circuit court is affirmed. | [
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Smith, J.
The present appeal is a continuation of the case of Gonlee v. Love, 178 Ark. 23-8, 10 S. W. (2d) 372, and the facts Put of which the litigation arose are sufficiently recited in the opinion on the former appeal to make repetition unnecessary.
Upon the remand of the cause, as directed in the former opinion, application was made to the clerk of the Pulaski Circuit Court for an execution on the judgment rendered against the plaintiff and his sureties on the delivery bond in the replevin suit, this being the suit brought by the Oox-Ellis Lumber Company to recover possession of the car upon which the sheriff had levied the execution which had issued against the property of Cox, the defendant in the original suit in Yell County, for debt. It was in this replevin suit that adjudication was made that the automobile was not the property of the Cox-Ellis Lumber Company, but was the property of Cox, the defendant in the original suit, and it was also adjudged in the replevin suit that the value of the oar, which the replevin suit prevented the sheriff from selling under the execution in his hands, was $700. This value was, of course, fixed as of the date when the automobile was taken out of the sheriff’s hands.
The former appeal was from a judgment rendered in favor of Love, the original judgment creditor, for the amount of the depreciation in the value of the car during a period of about fourteen months, while the sheriff was deprived of its possession for the purpose of selling it. We reversed this judgment, and in so doing held that Love’s unly remedy was to enforce the .judgment he already had in the replevin suit by execution, and not by bringing a second suit against the sureties on the delivery bond. This was upon the theory that Conlee, the surety, by 'signing the delivery bond made himself a party to that suit and liable for any judgment rendered in that case covering the oar, the subject-matter o*f the replevin suit. That decision is the law of this case.
When the clerk of the circuit court refused to issue an execution for the collection of the judgment in the replevin suit, application for mandamus was made to the judge of the court to require the clerk to issue the execution. The petition for the writ of mandamus alleged the fact to be that Conlee had been called upon to perform the judgment in the replevin suit, and was advised that he could have the automobile by paying the judgment for its value in the replevin suit, but refused so to do. The prayer for the writ was denied, and this appeal is from that judgment.
Upon refusing to order the writ of mandamus, the judge filed an opinion, in which he gave as his reason for his order the fact that an execution had previously issued upon the judgment in the replevin suit, and that this execution had been returned by the sheriff as satisfied, the return of the sheriff being that, the car having come into his possession, he had levied thereon the alias execution which had issued out of the Yell Chancery Court, and had again advertised the car for sale under the authority of the alias execution. It was the theory of the learned circuit judge that, the possession of the car hav ing been delivered to the sheriff, the judgment in the re-plevin suit was satisfied, and a second execution could not issue on this replevin .judgment.
It appears, however, from the allegations of the petition, that the execution under which the possession of the car was taken from the plaintiffs in the replevin suit was employed as a special writ to recover possession of the car, and, when so recovered, it was levied upon and sold under an alias general execution from the Yell Chancery Court. In his opinion the learned circuit judge recites that these facts were not before this court when the former opinion was handed down, but he was mistaken in this assumption; these’facts were before us.
In view of the former opinion in this case, the prayer of the petition for mandamus should have been granted. Trice v. People’s Loan & Inv. Co., 173 Ark. 1160, 293 S. W. 1037.
It is true, of course, that in replevin the delivery of the property is the primary object of the action, and that the value thereof is to be recovered in lieu of it as an alternative only in case a delivery cannot be had of the specific property. Trice v. People’s Loan & Inv. Co., supra. But the purpose of the execution which issued in the replevin suit here was not to recover possession of this automobile for the owner, but to recover it for the purpose of selling it as the property of the original judgment debtor, who was adjudged to be the owner. After the sheriff had levied upon the automobile as the property of the original judgment debtor, it was wrongfully taken from his possession, as was later adjudged, under the order of delivery in the replevin suit, and the authority so to do was conferred by the delivery bond which Conlee executed. There could have been no recovery in that case for the usable value of the automobile, as the plaintiff in the execution had no right to the use of the property until after the sale, and then only in the event that he became the purchaser. It was so expressly decided in the case of George v. Dardanelle Bank & Trust Co., 155 Ark. 167, 244 S. W. 25. But the plaintiff in the execution was entitled to have restored an automobile of undepreciated value. In other word's, the plaintiffs in the replevin suit had no right to use the automobile after obtaining possession of it under the order of delivery in that case, and, after destroying its value by using it, return a depreciated oar in satisfaction of the judgment, which fixed its value as of the time when it was wrongfully taken under the order of delivery.
The ‘ judgment of the court below will be reversed, and the cause remanded, with directions to order the clerk to issue the execution after crediting the $100 for which the automobile was sold. | [
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Mehaffy, J.
On April 19, 1932, Hopkins Wade, of El Dorado, Arkansas, filed his complaint in the Union Cir cuit Court against the Arkansas General Utilities Company, and S. E. Morgan, E. L. Pye, Jesse J. Craig, Citizens’ Light & Power Company, and Eepublic Power & Service Company. The plaintiff in the case alleged that there was a certain amount of indebtedness due him on a contract, and also alleged several assignments of the contract, but the complaint as filed was a suit at law on contract.
The Arkansas General Utilities Company, one of the defendants in said suit, filed a motion to require plaintiff to make his complaint more definite and certain. The plaintiff thereupon filed his response, and amended his complaint, and again prayed for judgment for the amount set out in the original complaint.
The contract, and several assignments, were filed as exhibits to plaintiff’s complaint. Thereafter, the plaintiff filed, in vacation, an amendment to his complaint, asking that certain other parties be made defendant, and that summons issue against them.
Thereafter, on September 17, 1932, the defendant, Arkansas General Utilities Company, filed a general demurrer, which, however, was never submitted to nor acted upon by the court. On December 31st, the defendant, Arkansas General Utilities Company, filed its answer, setting up certain equitable defenses, together with its motion to transfer the cause to equity, and Baylor House, receiver, and Perry County, filed an intervention, asking that the cause be transferred to equity.
On January 10, 1933, the cause was transferred to equity, as requested by defendant and interveners.
On March 23, 1933, the plaintiff filed his motion to transfer the cause back to the law court, and alleged that, on March 17,1933, a stipulation was entered into between Baylor House, receiver, and Dean, Moore & 'Brazil, attorneys for the receiver, and S. E. Gilliam, attorney for the plaintiff, that consent judgment should go in favor of Wade, and against Baylor House, receiver, on said intervention. On the same day, the chancery court of Perry County authorized and directed said Baylor House to enter into such stipulation. The stipulation provided that consent judgment should be entered; that Baylor House should take nothing by reason of intervention, and that the same shall be dismissed for want of equity.
On April 11, 1933, the defendant, Arkansas General Utilities Company, filed a cross-complaint against plaintiff and six other persons, all of whom, except Maude W. Morgan, were plaintiffs in the original suit, and moved to transfer the cause, and asked for an accounting. On April 11, 1933, James G. 'Barr filed an intervention as a minority stockholder in defendant, Arkansas General Utilities Company, and also as holder of bonds of the holding company, and asked for equitable relief. On April 28, Neill C. Marsh filed his separate answer to the complaint, and to the cross-complaint of defendant, Arkansas General Utilities Company.
Thereafter, the chancery court made an order remanding the cause to the circuit court for trial. The Arkansas General Utilities Company and James G. Barr both objected and excepted to the cause being remanded. Thereupon, the Arkansas General Utilities Company and James G. Barr filed their petition for a writ of mandamus, commanding, requiring and directing the Honorable Walker Smith, chancellor of the seventh chancery circuit of Arkansas, to take and assume jurisdiction of said cause, and for other relief.
A response to said petition was filed, alleging that no grounds were stated in the petition entitling any of the parties to equitable relief, and also stated that they had a complete and adequate remedy at law; that the plaintiff, Hopkins Wade, is entitled to a trial by jury, and that said cause was transferred to the chancery court solely on the petition of Baylor House, receiver, wherein said Baylor House was an intervener in said cause, and prayed for a cancellation and rescission of the assignment of the contract sued on. Respondent also alleged that, before petitioners were entitled to a writ of any kind, they must first show that both the Union Circuit Court and Union Chancery Court refused to try the case.
The petitioners first contended that the general rule is that, where a judge declines to proceed with the trial of a case properly within the jurisdiction of the court'over which he presides, he may be compelled to exercise that jurisdiction by mandamus, except where the right .exists to review the action by appeal or writ of error. The petitioners contend that a case squarely in point is the case of Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833. As to whether the chancery court or circuit court has jurisdiction to try this case depends upon the statement of facts in the pleadings, and this court stated in the case relied on by petitioners that, where the jurisdiction of the superior court to try a cause or hear an appeal depends on the evidence of certain facts, and that court has, upon the evidence consisting either of affidavits or of the record, made its determination as to the facts, although erroneously, this court cannot, in mandamus proceedings, go behind this determination, and itself consider from the evidence, whether or not the jurisdiction existed.
There were no facts stated in the pleadings in the original cause that justified a transfer of the case from the law court to equity. The original suit was simply a suit on contract, and everything pleaded by the defendant as a defense could properly be tried in a law court. The intervention of Baylor House, receiver, stated no facts that justified a transfer to the chancery court; but, even if it did, if the issues raised by the intervener were purely equitable, the intervener would have no right to say in what court it should be tried; he could intervene and try his case in court where the original suit was pending, or, if he wanted to go to equity, he could bring an independent suit. But in this case the issues raised by the intervener could have been properly tried by a law court. In addition to this, before the chancery court ever met and assumed jurisdiction, the intervener and his pleadings passed out of the case, and there was therefore nothing left but the original suit. It is true that J. G. Barr intervened as a minority stockholder, but he had no right to intervene and ask for a transfer of the cause; as a matter of fact, the corporation was representing him and all other stockholders. If the chancery court, in refusing to exercise jurisdiction, had thereby deprived the petitioners of a right to try their cause, this court would issue a writ of mandamus compelling it to try it.
In the case of Automatic, Weighing Co. v. Carter, 95 Ark. 118, 128 S. W. 557, this court said: “We do not deem it necessary to set forth the allegations of said answer and cross-complaint, or to determine whether or not any equitable defense is therein set forth, or whether or not the circuit court erred in transferring the case to the chancery court, or whether or not in the present status of the case such order of the circuit court was an exercise of judicial discretion which should not be controlled by mandamus; because the petitioner has not shown that he has no other adequate remedy, and that he cannot secure such remedy by following said case to the chancery court to which it has been transferred. The writ of mandamus is only employed in unusual cases, and where no other remedy is available.”
The court, in the same case, also said: “It is believed to be well settled that the writ of mandamus is not to be considered as a writ of right, but it is understood to be within the discretion of the court to grant it, and it is held to be a general rule that the party applying for this writ must show a specific legal right, and the absence of any specific remedy to induce the court to grant it.”
Either the chancery court or the circuit court may, within its judicial discretion, determine whether it has jurisdiction, and this judicial discretion will not be controlled by mandamus. Of course, if neither the chancery court nor the circuit court would assume jurisdiction, then the writ will be issued to compel either the chancery court or the circuit court to assume jurisdiction, but where either court, in the exercise of judicial discretion, transfers a case to the other court, the exercise of such judicial discretion will not be controlled by mandamus.
The petitioners in this case have a complete and adequate remedy, and the writ will therefore be denied. It is so ordered. | [
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Mehaffy, J.
The appellant was convicted of the crime of grand larceny and sentenced to one year in the penitentiary, and prosecutes this appeal to reverse said judgment.
Appellant has filed no brief, but in his motion for a new trial he alleges that the verdict and judgment is contrary to the law and that the verdict and judgment is contrary to the evidence. He also alleges that the court erred in giving instructions Nos. 1 to 8, inclusive.
The evidence on the part of the State showed that about 1,000 pounds of cotton o'f the value of $67, was taken from the shed of John Haines and witnesses testified that cotton was dropped, along showing that it had been carried south across the pasture to the schoolhouse; that a wagon had been at that place and that there was a team of mules shod in front with new shoes. Witnesses measured the tracks and followed the tracks, tracking a wagon and mules up to where the appellant lived. They measured the tracks of mules when they got to appellant’s place and the measurements were the same; that the mules .they found in the lot there were shod in front, and there was evidence that they had been recently used, and that the sweat had not dried off the harness. They followed the tracks of the mules and wagon from the place where the cotton was taken to appellant’s place, and a number of witnesses testified that the tracks were the same, and that no other wagon had gone along there.
The appellant denied being at the place and denied taking the cotton, and introduced witnesses that corroborated his testimony in part.
The testimony was entirely circumstantial but, if believed it was sufficient to justify the jury in finding the appellant guilty.
“The jury are the judges of the credibility of the witnesses and the weight to be given to' their testimony. Therefore, in determining whether the evidence is sufficient to support the verdict, this court must consider the evidence in the light most favorable to the- State, and, when this is done, it cannot be said that the evidence did not warrant the jury in returning the verdict of guilty. ’ ’ Bowlin v. State, 175 Ark. 1047, 1 S. W. (2d) 546; Yeager v. State, 176 Ark. 725, 3 S. W. (2d) 977.
Where circumstantial evidence alone is relied upon to establish the guilt of one charged with crime, such evidence must exclude every other reasonable hypothesis than the guilt of the accused. The State in this case relied on circumstantial evidence and must be governed by this rule. But the court in its instructions in this case, told the jury that where the State relied on circumstances to establish the guilt of the defendant, the circumstances must he consistent with the defendant’s guilt and inconsistent with his innocence, and they must he so connected as to exclude every reasonable hypothesis of the defendant’s innocence. See Logi v. State, 153 Ark. 317, 240 S. W. 400; Withem v. State, 175 Ark. 453, 299 S. W. 739; Sluder v. State, 162 Ark. 212, 258 S. W. 123.
This court has many times held that the credibility of witnesses and the weight to be given to their testimony are questions for the jury. There was ample evidence to sustain the verdict and we have carefully considered the instructions given by the court and find no error in said instructions. The charge of the court properly directed the jury, and their verdict on facts will not be disturbed.
The judgment of the circuit court is affirmed. | [
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Johnson, C. J.,
(after stating the facts). There are three questions presented for determination by this court, namely; first, did the trial court err in refusing to arrest the judgment of conviction; second, did the trial court err in refusing to give to the jury appellant’s requested instructions number 4 and 6; third, did the trial court err in propounding- to the witness, T. A. Watson, the questions set forth in the statement of facts?
Considering the first question presented for determination, § 2009 of Crawford & Moses’ Digest reads as follows:
“Fraudulent Warrants. If, upon adjudication of any warrant by the county court, it shall be found to have been fraudulently or wrongfully issued without due authority from said court, the court shall indorse such fact thereon and cause it to be deposited, without renewal, in the office of the clerk of said court. Any clerk who shall fraudulently or wrongfully, without authority of law, issue any such warrant shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned in the penitentiary for not less than one year and not more than three years.”
The insistence is that the indictment does not allege that the county court of Franklin County made an adjudication that the warrant was fraudulently or wrongfully issued, and that it does not charge that such finding was indorsed upon the warrant, and that it does not charge that the warrant was thereafter deposited with the clerk, and indorsed “without renewal.” It is conceded that the indictment follows the latter half of this section. The insistence is that the use of the words “any such warrant” as they appear in the latter half of the section has reference to “shall indorse such fact thereon and cause it to be deposited,” as the phrase appears in the first half of the section. We cannot agree with this contention. We think that the words “any such warrant” has reference to the words “fraudulently or wrongfully issued,” and with this construction the indictment charges a crime substantially in the language of the statute. It is our conclusion that a criminal violation is charged in the indictment and that the trial court committed no error in refusing to arrest the judgment of conviction.
The next insistence for reversal is that the trial court erred in refusing to give to the jury appellant’s requested instructions numbered 4 and 6. This insistence has been carefully considered, but we find that these instructions are fully covered by other instructions given by the trial court. Conceding, without deciding, that the requested instructions numbered 4 and 6 are correct declarations of law, there was no error in refusing to give them, be cause they are fully covered hy instructions which were given.
It is finally insisted that the trial court erred in interrogating- the witness, Watson, while on the witness stand, and the cases of Sharp v. State, 51 Ark. 147, 10 S. W. 228, 14 Am. St. Rep. 27, and Arkansas Central Railroad Company v. Craig, 76 Ark. 258, 88 S. W. 878, 6 Ann. Cas. 476, are called to our attention in support thereof.
In the Craig case, cited supra, this court said:
“A trial judge has the right to propound such questions to witnesses as may be necessary to elicit pertinent facts; but this must be done in a reasonable and impartial way, so as not to indicate his opinion of the facts.”
We think that the questions propounded by the trial court in the instant case are both reasonable- and impartial, and that they could not and did not influence the jury in any improper way. There is nothing in the questions propounded to indicate that the trial court had any opinion as to the guilt or innocence of the accused.
No error appearing, the judgment is affirmed. | [
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McHaney, J.
Appellant, J. Edwin Mayo, is the administrator in succession of the estate of Walter P. Mayo, and he and the other appellants are the children and sole heirs at law of R. D. Mayo, who was the first administrator of the estate of Walter P. Mayo, with the will annexed. The will, after providing for payment of certain bequests out of life insurance policies to named legatees, made his father, R. D. Mayo, his residuary legatee, and named him as executor of said estate. Walter P. Mayo left a large estate consisting of real and personal properties in Monroe and Phillips counties, Arkansas. R. D. Mayo qualified as executor, and continued to act as such until his death on April 12, 1926. A few days later, appellant, J. Edwin Mayo, was appointed and qualified as administrator in succession of said estate. There was no administration on the estate of R. D. Mayo. The proceeds of the insurance policies bequeathed to various legatees were collected by R. D. Mayo, but neither he nor his son, J. Edwin, paid over the proceeds of such policies to the various legatees, with two exceptions. The estate has never been closed. Walter P. Mayo was the owner of approximately 3,000 acres of land, 1,400 acres of which was in a high state of cultivation, and the remainder consisted of virgin timber lands of a large value. After taking charge of said estate, J. Edwin Mayo and the others heirs of B. D. Mayo, appellants, became indebted to the Bank of Marvell for borrowed money evidenced by notes, in the year" 1926, for a large sum. Failing to pay same, suit was brought against appellants thereon in Phillips Circuit Court and on November 20, 1931, judgment was rendered on these notes in favor of appellee against appellants, heirs of B. D. Mayo, for the sum of $16,809.47 with interest from date until paid at the rate of 8 per cent, per annum. It appears that, a short time after the rendition of this judgment, Judge John I. Moore, attorney for appellee, agreed with the then counsel for appellants, that no execution would' be issued on said judgment without the consent of their counsel. This agreement was made to afford additional time to appellants to sell some of the assets of'the estate to take care of appellee’s debt, which was a debt incurred by them in the operation of said estate. Pursuant to this agreement, no execution was issued on appellee’s .judgment until March 29, 1933, when appellee caused an execution to be issued out of the Phillips Circuit Court, directed to the sheriff of Monroe County, who made a levy upon the interest of appellants in and to the 3,000 acres of land formerly belonging to Walter P. Mayo, deceased. Thereafter, on May 3, appellants filed this action against appellee and the sheriff of Monroe County, and others to enjoin and restrain the sheriff from selling the property upon which the execution had been levied.
The court, on a final hearing, denied the relief prayed, and dismissed the-complaint for want of equity, from which is this appeal.
The court correctly dismissed the complaint for want of equity. There was no equity in it. The undisputed proof shows that no debts were probated against the estate of Walter P. Mayo, deceased, and that there was no administration upon the estate of the father, B. D. Mayo, deceased. Under these circumstances, the lands of the decedent were not an asset in his hands for the payment of debts, because- there were no debts. Appel-' lant, J. Edwin Mayo, as administrator, had no right to-' their possession and control. Section 67, 'Crawford & Moses’ Digest, provides that: “Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession, and subject to their control for the payment of debts.” This court has many times held that the administrator has no control of his decedent’s lands, nor the rents thereof, when not needed for the payment of debts. Stewart v. Smiley, 46 Ark. 373; Jones v. Jones, 107 Ark. 402, 155 S. W. 117, and many more recent cases. The legal title to an intestate’s lands, upon his death, descends to and vests in his heirs at law, subject to the widow’s dower, and the payment of debts through his administrator. Culberhouse v. Shirey, 42 Ark. 25; Mobley v. Andrews, 55 Ark. 222, 17 S. W. 805; Burton v. Gorman, 125 Ark. 141, 188 S. W. 561. There being no debts, the administrator in this case had no title or interest in the lands of the testator. It appears, however, that he took possession both as administrator and in his own right, and with the consent of the other heirs, and attempted to conduct the farming business as such administrator.
Appellants contend that the administrator was entitled to the protection of the chancery court from an execution against the heirs, and levied upon lands belonging to the estate of the testator. But the administrator is not entitled to protection from a proceeding in which he, as administrator, has no interest. Having no interest in the lands as administrator, it is difficult to perceive what right he would have to prevent the levy of an execution against the heirs.
It is also contended by appellants that the jurisdiction of the equity court should have been invoked to prevent the violation of the agreement between counsel above mentioned as to the issuance of wan execution under the judgment in favor , of appellee. It is true that there was such an agreement, but it may be said, first, that it was without consideration; and, second, .that such agreement was not to last forever, 'but only for a reasonable time to enable appellants to make disposition of the timber land belonging to the estate-to satisfy the judgment and other debts incurred by appellants. The undisputed proof shows this to be a fact. This agreement was permitted to stand, and no execution was issued from the date of the judgment to March 29,1933, more than a year and four months, and appellants do not contend that this was not a reasonable time.
The rights of legatees are not involved in this appeal, although one of them was a party plaintiff in the action. The legacies were to be paid out of specific funds, the proceeds of certain life insurance policies. Whether by standing by, permitting the executor and administrator in succession to use said funds for other purposes, they may now recover out of the corpus of the residuary estate is another question, and one that is not before us.
The decree of the court is therefore correct, and is accordingly affirmed. | [
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Kirby, J.
It is urged that the claim, based upon the judgment, was barred by the ten-year statute of limitations, the judgment not having 'been properly revived, and'that the circuit court erred in holding otherwise and confirming the order of allowance thereof made by the probate court.
It is undisputed that the motion to revive the judgment was filed on January 31, 1927, in the Pulaski Chancery Court, wherein the decree was rendered on March 14,1917, and that the writ of scire facias was issued and served on the defendant, C. P. Waters, the same day. The motion was styled “L. C. Going, trustee for Euth Harold, plaintiff, v. C. P. Waters, defendant, No. 20957,” and both it and the writ recited the recovery of the judgment on the said day of its rendition for $2,400, the realization from the sale of the property foreclosed of $1,800 credited thereon, leaving a balance due and unsatisfied of $600, interest, etc. The defendant, C. P. Waters, was summoned to appear on February 21, 1927, and answer the premises and show cause why the judgment should not be revived against him and plaintiff have execution thereof. The order reviving the judgment was made on the return day of the writ, the said 21st day of February, 1927, reciting the recovery of the judgment, the realization of $1,800 from the sale of the property credited thereon, a balance of $600 due, the death of L. C. Going, the marriage of Euth Harold, her. name now being Euth Harold Anderson, the real party in interest, and the service of a summons on defendant, and his failure to appear or make answer. The original judgment was rendered after personal service upon the debtor, as was also the order of revival, and both the motion for revival and the writ served upon the defendant re cited correctly the chancery record, Case No. 209'57, of the judgment sought to be revived.
Although it is true that the judgment revived was entered in favor of Miss Ruth Harold for the amount of it and for foreclosure of the lien by L. C. Going, as trustee, in the deed of trust given to secure the payment of the note to her, upon which this judgment was rendered, and while the motion to revive and the scire facias did not correctly recite the exact amount of the judgment entered for her, and recited a less 'balance after crediting the $1,800 realized from the foreclosure sale than was actually due, these were mere errors and irregularities not affecting the validity of the judgment of revival.
There was no attempt to show, nor any claim made then or now, that any other or different judgment, or more than the said one judgment, had been recovered by the plaintiff against the defendant by the party seeking the revival, the real party in interest, and the whole proceeding pointed to the judgment with such certainty as that it was impossible for the defendant, C. P. "Waters, to have been misled to his prejudice about the identity of the judgment sought to be revived.
The motion for revival was unnecessary, anyway, the writ of scire facias performing the double function of a declaration and a summons, and was not the institution of a new suit but the continuation of the old one, the object being not to procure a new judgment for the debt but. the extension of the judgment that had already been obtained. Greer v. State Bank, 10 Ark. 455; Calhoun v. Adams, 43 Ark. 238; Walstein v. Williams, 101 Ark. 404, 142 S. W. 834, 37 L. R. A. (N. S.) 1162.
The order of revival was made on the 21st day of February, 1927, within ten years from the rendition of the judgment, and the contention that the claim was barred is without merit Section 6316, C. & M. Digest.
No appeal was taken from the order of revival of the judgment, and as against a collateral attack, as this is. it cannot be avoided for mere error or irregularity— the objections urged amount to nothing more — and conclusively establishes the facts necessary to support it as against all persons properly made parties. Ward v. Sturdivant, 96 Ark. 434, 132 S. W. 204; 1. Freeman on Judgments, § 390.
We find no error in the record, and the judgment is affirmed. | [
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Mehaffy, J.
The appellant, a Missouri corporation, is engaged in the production and shipping, wholesale, of flour, grain and kindred feedstuffs. Two or more years prior to March 4,1927, it had dealt with the appellee, who was engaged in the mercantile business at R-ivervale, in Poinsett County, Arkansas. Shipments had 'been made from appellant to appellee in carload lots. The cars shipped were consigned to Rivervale, Arkansas, and from twelve to fifteen shipments were made each year. At the beginning of their relations appellant asked appellee where he did business, and appellee told him at the First National Bank of Lepanto. Thereafter drafts were drawn by appellant for each shipment, with bill of lading attached, through the First National Bank of Lepanto, Arkansas. All of these drafts had been regularly and promptly paid; except the one here in controversy.
When the draft and bill of lading reached the bank, the bank would notify the appellee, he would call and get the bill of lading, and the bank would charge the amount to appellee’s account and remit to appellant. Appellee never gave a check and never gave money in payment of draft, but directed the bank always when it received a bill of lading to charge the draft to his account. Appel-lee had at all times more than enough money to pay the draft in question, and there was at all times more than enough cash in the bank to pay the draft. The draft in controversy amounted to $865.10. When the bill of lading and draft came for the shipment on February 14, 1927, a member of the firm of appellee called the bank on the phone and directed them to deliver the bill of lading to George Need for appellee, and directed the bank to charge the draft to the account of J. L. Weems & Son. This was what was always done; the bill of lading was delivered, and the car received by appellee.
The records of the bank do not show that appellee’s account was charged with the draft and do not show that the draft was marked paid, and the bank never remitted to appellant. The hank had never required a check or a formal order from appellee to charge his account with the amount of the drafts and to deliver the bill of lading. They treated the draft as a check. When the shipment involved in this suit was made on February 14, 1927, the bank received the following letter from the appellant:
“Please find our draft No. 3564 for $865.10, drawn on J. L. Weems & Son. We are handing you this item as our agent only to collect and hold the funds collected in trust from and to be accounted for to us, and not to be mingled with any other funds, but, when collected, to be held by you as our trustee until paid to us. Please remit to us in St. Louis, New York or Chicago exchange.”
The bank was dosed on March 4,1927, and appellant demanded payment of the amount of the draft from ap-pellee, and payment was refused. 'Suit was brought in the circuit court, asking judgment for the amount of the draft for the goods shipped, and appellees answered, denying the indebtedness, and alleging that the bank was the appellant’s agent, and that there was at all times sufficient money in the account of the appellee to pay the draft, and that appellant could not recover a loss caused by the neglect of its agent.
At the close of the testimony both parties requested the court to direct a verdict in their favor, and the court directed a verdict in favor of appellee, and judgment was entered accordingly. Appellant filed its motion for new trial, which, was overruled, and an appeal is prosecuted to this court.
Appellant states that the question here presented is whether the drawee is liable to the drawer for the amount of the draft when the bank to which it was sent for collection at drawee’s suggestion, if not at his request, fails to remit the proceeds, charge the drawee’s account, mark the draft paid, or do any other act indicating payment after the attached bill of lading was surrendered, and before the bank’s doors were closed eleven days thereafter. We do not agree with appellant that the draft was sent to the bank for collection at appellee’s suggestion. On the contrary, the undisputed proof shows that appel-lee made no suggestion or request about the sending of the draft or to whom it was to be sent, but the appellant simply asked appellee where appellee did business, and he was told that appellee did business at the First National Bank of Lepanto. The appellee had never at any time, so far as the proof in this case shows, made any suggestion or request that the drafts be sent to the bank at Lepanto. The appellant made the bank its agent when it inclosed the draft and bill of lading; it stated to the bank that the draft was handed to it as agent of appellant only to collect and hold the funds collected in trust and to be accounted for to appellant, and not to be mingled with any other funds, but, when collected, to be held in trust by trustee for appellant. Appellant did not communicate with appellee, but communicated with the bank, its agent.
It is earnestly insisted that an agent having for collection obligations due to its principal can receive only money in payment, unless otherwise directed, and that these principles apply to banks holding drafts for collection. We agree with the appellant that this is the general rule, but, in the instant case, it has no' application, because the appellant constituted the bank its agent, sent the bill of lading and draft to its agent just as it had for more than two years, and the bank delivered to the appel-lee the bill of lading just as it had each month for more than two years, and was directed to charge appellee’s account with the amount of the draft. When the .draft and bill of lading came to the bank and the bank delivered the (bill of lading to appellee on appellee’s direction to charge the amount to his account, having ample funds to pay the draft, this was an appropriation of ap-pellee’s funds in the bank of the amount of the draft. Appellee not only did all that he ever did when he received a bill of lading, but all that he could be expected to do.
The cashier of the bank testified that they always treated the drafts as checks, and that the appellee never paid either money "or check, but that it was always handled just as it was in this instance. The .bill of lading would be delivered to the appellee, and he would order the bank to charge his account with the amount.
In the trial of the case the court asked Weems the following questions: “Q. Mr. Weems, how came them to draw these drafts through the First National Bank of Lepanto? A. Mr. Bowman said that was his way of doing business, and he preferred to do it that way. Q. How came them to select the First National Bank of Lepanto? A. Well, they asked me where I did business, and I told them. ’ ’
B.. M. Johnson testified that he had been in the banking business for thirty-five years, and it is the custom to treat a draft, under the circumstances of this case, as a check; it serves both as a check and a.receipt.
J. L. Weems, one of the appellees, testified: “That I just went to the bank and called for the bill of lading, and they would hand me the bill of lading and charge the draft to me, and the draft would come out exactly as a check. I never did pay for it with money. They would charge it just like they would a statement, and the draft would be like a check .at the end of the month.”
The witness identified fourteen monthly statements received from the First National Bank of Lepanto with a draft attached to each one, showing the several drafts to have 'been used and treated as checks for the items charged on said ledger sheets.
Minnie "White, the cashier of the bank, testified that she did not remember ever having a check from Weems, bnt they used a draft as a check, and charged it to his account. The bank did not require a cheek or a. written order from him, but used a draft, and all of these drafts were used just as a check, and the bank regarded them as checks.
Weems also testified that he gave them orders, and that it was standing authority to pay the drafts when they delivered to him the bill of lading.
This bank was selected by appellant; the method of making the shipments, sending the draft and bill of lading to this particular bank was selected by appellant, and appellee had nothing to do with it except to go to the •bank, get the bill of lading, and order his account charged with it. In the sending of the draft in controversy, the appellant wrote a letter expressly stating that the draft was sent to the bank as its agent. Appellant selected the bank; it was acting for appellant under appellant’s directions. It' had authority to act for appellant, and we think appellant is bound by its actions. It is true that ordinarily the bank to which paper is sent for collection is the agent for the payee, but in this instance the appellant selected the bank named as its representative, and delivered the bill of lading and presented the draft and received payment, and the appellee paid it in the usual way, that is, directed the bank to charge his account with it, and we do not think it possible to find any basis on which to rest .a holding that the bank was the agent for the appellee or that it acted in a dual capacity. Xppel-lee, at most, simply acquiesced in appellant’s selection of the First National Bank of Lepanto, and this acquiescence in the selection made by the appellant did not constitute the Bank of Lepanto the appellee’s agent. A case involving a question very similar to the question in this case was decided by the Supreme Court of Mississippi, and among other things the court said:
“The bank to which a cheek is sent for collection is the ag’ent of the holder of the cheek for the purpose of making the collection, and the payment of such check absolves the drawer from further liability thereon; * * * when a check is received for collection by the bank on which it is drawn, and the drawer then has sufficient funds on deposit with such hank with which to pay the check, the drawer will be discharged from further liability on the check, although the bank fails to pay the amount of the check to the holder thereof from whom it was received, notwithstanding the bank may be then insolvent, provided it was then open for business, and it does not appear that, in the event the check had been presented to it by another collection ag’ent, it would not have been paid.” Marine Bank & Trust Co. v. Triplett, 149 Miss. 274, 115 So. 202.
The court in the above case also said:
“The agreed facts in this case show that, when the Bank of Centerville received the check involved for collection, and for some days thereafter, it had on deposit to the credit of appellee, the drawer of the check, sufficient funds with which to pay the same. The Bank of Centerville, as the agent of appellant for the collection of the check, should have charged appellee’s account with the amount of the cheek. The failure of the Bank of Centerville so to do was the cause of the check not being paid by the appellee. The Bank of Centerville was the agent of appellant for the collection of the check. The failure of the bank to perform its duty by charging the amount of the check to appellee’s account is chargeable to its principal, the appellant. Therefore whatever loss there was must fall on appellant and not on the appellee. ’ ’
In the instant case the First National Bank of Le-panto, as the agent of appellant for the collection of the draft, should have charged appellee’s account with the amount of the draft. The failure of the Bank of Lepanto so to do was the cause of the draft not being paid by the appellee. The Bank of Lepanto was the agent of appellant for the collection of the draft. The failure of the bank to perform its duty by charging the amount of the draft to appellee’s account is chargeable to its principal, the appellant. Therefore whatever loss there was must fall on appellant, and not on the appellee.
Counsel on both sides have cited many authorities, but we do not think it necessary to review them here. The undisputed facts show that the Bank of Lepanto was the agent of appellant, and its failure or neglect to charge appellee’s account with the draft must be chargeable to its principal, the appellant, and the loss caused by the negligent or careless conduct of the Bank of Lepanto ■must fall on the appellant, and not on the appellee. The facts in the case are practically undisputed, and it would therefore serve no purpose to set out the testimony at length. The only question involved is the question as to whether the appellant or appellee should bear the loss caused by the failure of the Bank of Lepanto to charge appellee’s account and remit the amount to appellant.
We have reached the conclusion that the loss must fall on the appellant, and the judgment of the circuit court is therefore affirmed.
Mr. Justice Kirby dissents. | [
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Humphreys, J.
Appellant was indicted, under separate counts, in the circuit court of Jefferson County, for the crimes of grand larceny and embezzlement. He filed a motion for a change of venue, which was overruled by the trial court, over his objecton and exception. Upon a trial of the charges he was acquitted of grand larceny bnt convicted of embezzlement, and adjudged to serve a term of one year in tbe State Penitentiary as a punishment therefor, from which judgment of conviction an appeal has been duly prosecuted to this court.
Appellant assigns as reversible error the action of the trial court in refusing to grant him a change of venue.
In order to obtain a change of venue to another county, by one charged with crime in any circuit court in this State, the statutes require that it must be made to appear by petition of the defendant, supported by the affidavits of two credible persons, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against him that he cannot obtain a fair and impartial trial therein. This court has ruled that, in order for an affiant to qualify as a credible person under the statute, he must be cognizant of the prejudice existing throughout the whole county, and not merely in portions thereof. Dewein v. State, 120 Ark. 302, 179 S. W. 346; Speer v. State, 130 Ark. 457, 198 S. W. 113; Williams v. State, 162 Ark. 285, 258 S. W. 386; Mills v. State, 168 Ark. 1005, 272 S. W. 671.
In the instant case the affiants were only conversant with the sentiment in three or four localities in Jefferson County, and, on account of their limited knowledge of the popular mind in the entire county, could not qualify as “credible persons” within the meaning of the statute.
Appellant also assigns as reversible error the refusal of the court to instruct the .jury that the evidence introduced, of similar offenses about the same time, was admitted solely for the purpose of showing design or particular intention. The count in the indictment charging-appellant with embezzlement alleged that he came into possession of $19.50 as agent of the Hall Grocery Company, a corporation, on the 10th day of November, 1928, and unlawfully, feloniously and fraudulently converted same to his own use. The State introduced testimony to prove the alleged unlawful conversion of said amount on the 10th day of November, 1928, and then introduced other evidence tending to show that other amounts had been converted in a similar manner on other dates before and after the date alleged in the indictment. The proof introduced by the State tended to show that each separate conversion constituted a separate offense, so the only purpose for which similar offenses committed by appellant about the same time could have been introduced was to reflect his intent in converting said sum on the date alleged, and the introduction thereof should have been limited to that purpose, by instruction or otherwise. Strong v. State, 81 Ark. 25, 98 S. W. 678, and cases cited therein. Appellant’s requested instruction No. 2 was a correct declaration of law relative to the purpose for which evidence of similar transactions occurring about the same time might be introduced, and should have been given to the jury. Prejudicial error was committed by the trial court in refusing to give his requested instruction.
Appellant also assigns as reversible error the refusal of the trial court to give his requested instruction No. 6 on the admissibility of the written confession of appellant, and in giving instruction No. 6 on his own motion. We do not think instruction No. 6 given by the court was prejudicial, although perhaps susceptible of a construction not intended. In other words, we do not think the language used misled the jury as to the true meaning of the instruction. The law is more clearly and accurately expressed in instruction No. 6 requested by appellant. On a retrial of the case it should be given instead of instruction No. 6 which was given by the court on its own motion.
We do not deem it necessary to discuss or pass upon the other assignments of error, as they may not arise on a retrial of the cause.
On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Smith, J.
Appellant filed on June 11, 1928, a complaint, in which he deraigned the title to a tract of land lying within Road Improvement District No. 1 of Izard County from the United States to Amye Cummins, this last conveyance being dated May 29, 1915. He alleged a forfeiture and sale of the land to- the State of Arkansas in 1917 for the nonpayment of the 1916 taxes, and the execution of a donation deed from the State Land Commissioner to G-. W. Bramlett in 1925, based upon this forfeiture, and the acquisition by plaintiff of Bramlett’s title. Plaintiff further alleged that on June 26, 1926, John W. Hall, circuit clerk of Izard County, as com missioner of tlie obancery court, sold the land, under the direction of a decree of the chancery court, for the delinquent improvement district taxes for the years 1923 and 1924:, and that on May 18, 1928, which was within less than two years of the date of the commissioner’s sale, plaintiff had made a written tender of $8.28, the total amount of taxes, penalty, interest and costs necessary to redeem said land, to the clerk of the chancery court, and demanded a certificate of redemption thereon, which tender and demand were refused by the clerk. Wherefore it was prayed that the certificate of purchase issued by the clerk as commissioner to the purchaser at the sale of the land for delinquent improvement district taxes, with any assignments thereof, be canceled, and that Hall, the clerk, as commissioner, who was made a party defendant, be required to permit a redemption of said land. Attached to the complaint as an exhibit was a written offer to redeem, with a tender of the taxes, etc., made to the chancery clerk as commissioner.
Defendants filed an answer and demurrer. The answer alleged the commissioner’s sale, to defendant Dillard and the execution of a commissioner’s deed to Dillard, which was duly approved by the chancery court, and the conveyance, of this title by Dillard to defendant Beard. These deeds were made exhibits to the answer. The demurrer was upon the grounds that the complaint did not state a cause of action; that there was a defect of parties; and that the circuit court was without jurisdiction to grant the relief prayed.
Plaintiff filed a motion to transfer the cause to the chancery court, to the end that the deed from the commissioner to Dillard and that of Dillard to Beard be canceled as clouds upon his title. This motion was granted, and the cause was transferred to equity, where the demurrer to the complaint was heard and sustained, and the cause dismissed. This appeal is from that decree.
For the affirmance of the decree from which this appeal comes it is first insisted that there is a defect of parties, as the complaint does not show that plaintiff has the right'to redeem. This argument is based upon a construction of § 14 of act 674 of the Acts of 1919 (vol. 2 Road Acts 1919, p. 2643), which is the act creating the road improvement district. After providing that the payment of delinquent taxes shall be enforced in the manner provided by §§ 23 and 24 of act No. 279 of the Acts of 1909, it was further provided that “the owner of property sold for taxes thereunder shall have the right to redeem it at any time within two years.from the time when his lands have been stricken off by the commissioner making the sale.”
It appears from the allegations of the complaint that plaintiff was not the owner of the land at the time of the commissioner’s salé, and it is therefore insisted that plaintiff has no right. to redeem without making the owner at the time of the sale a party to this proceeding. We do not concur in the view that it was the legislative purpose to give the word “owner” a meaning so restrictive. This portion of the statute is remedial in its nature, and, like all such statutes, should be liberally construed to effect its beneficent purpose. We think the word “owner” as here employed means any person having an interest in or title to the land sold which would be foreclosed by the failure to exercise the right of redemption within the period of two years after the sale for the taxes by the commissioner, and it is immaterial whether this title or interest existed at the time of the commissioner’s sale. It suffices if it existed or is acquired before the period of redemption expires.
It appears also that the offer to redeem was made within two years of the date of the sale. There have been amendments to this portion of the act, but they do not shorten the time for redemption below two years. It is argued that the complaint in this cause constituted a collateral attack upon the decree of the chancery court under which the land was sold. We do not agree with learned counsel in this contention. The suit is one to exercise the statutory right of redemption and to compel the clerk as commissioner to perform his ministerial duty in that behalf. This right may exist and could be exercised without in any manner questioning the validity of the decree of sale, as the statute allows two years for redemption, and the attempt was made to exercise the right within that time.
It is insisted that the offer to redeem and the tender were insufficient to support the suit to redeem, for the reason that there was no offer to refund to the purchaser the amount due him — the tender which was made having been to the clerk as commissioner. The tender made complied with the requirements of the law. Act 445 of the Acts of 1923 (Acts 1923, p. 395) is an act, as its title indicates, to require additional publicity to tax sales of land and sales of land for local improvement assessments. This act provides that, when any lands are sold for delinquent assessments levied by any improvement district now in existence or hereafter created, under a decree of the chancery court, the clerk thereof shall, within ten days after the filing in his office of the report of the commissioner 'making the sale, prepare and file with the county clerk of the county a certified list of the lands so sold, said list to contain a description of each tract of land under which it was sold, the amount of the taxes, etc. The act further provides that, when any tract of land so sold and certified shall be redeemed from such sale, “the clerk of the chancery court shall certify that fact to the county clerk, who' shall make a note thereof on the margin of the list of sales in his office required herein.” The purpose of this statute is, not only to facilitate redemptions, but to perpetuate the evidence thereof, and it was substantially complied with by the plaintiff in this case.
In addition to what we have said, it may be added that, under the allegations of the complaint, the sale of the land for the improvement taxes was void for the reason that the title thereto at the time of the sale was in the State of Arkansas. It was held in the case of Turley v. St. Francis County Road Imp. Dist., 171 Ark. 939, 287 S. W. 196 (to quote a syllabus), that: “Sale to the State of lands for nonpayment of general taxes suspends the enforcement of the special road tax lien so long as the title remains in the State; hut such lien, under Crawford & Moses’ Digest, § 5433, may he enforced when the land goes hack to private ownership. ’ ’
"We conclude therefore that the court was in error in sustaining the demurrer to appellant’s complaint, and the decree will he reversed, and the cause remanded, with directions to overrule the demurrer. | [
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Butler, J.
This is an appeal from the order of the circuit court sustaining a demurrer to a petition of the appellants seeking to require the treasurer of Pulaski County to pay over to the appellants certain sums claimed to be due and payable under orders of the county court previously made.
'It is impracticable to set out the petition in its unabridged form, nor does this seem necessary. The facts pleaded as a basis of the relief sought may be thus summarized: The appellant, West Twelfth Street Road Improvement District No. 30, was organized for the purpose of building a road with its necessary bridges, and appellant, Road Improvement District Annex No. 1 to West Twelfth • Street Road Improvement No. 30, was formed for the purpose of building a connecting road with other improved highways. District No. 30 first issued bonds of the face value of $93,000 to complete the improvement and realized, from the sale of these bonds, $85,000. Pulaski County agreed to do the work with the machinery it had on hand to be paid out of the $85,000 at the rate of $7,000 per mile, payment to be made as the work progressed. Under this contract a. part of the road was completed, and the county was paid $72,000, which was $16,000 more than it was entitled to for the work performed. The highway was not completed, and it became necessary for the district to issue additional bonds in the sum of $66,000. In order to relievé itself of its obligation to complete the construction of the road, the county entered into an agreement by which it pledged one-fourth of its road funds to the district to be applied in aid of the payment of the bonds issued by the district, and -also, in aid of the payment of a $15,000 bond’issue of district annex No. 1, aforesaid. • Of the said one-fourth of its road funds the sum of $1,837,50 was pledged annually in aid of the pay ment of the $93,000 bond issue, $1,700 per annum on the $66,000 bond issue, and a sum sufficient to pay one-fourth of the bond issue of district annex No. 1.
To carry into effect these agreements, the Pulaski County court, on the 18th day of May, 1931, made and entered an order relating to its agreement as to annex No. 1, and on the 15th day of June, 1931, made and entered two orders, one relating to its agreement with respect to its aid in payment of the bond issue of $93,000 and the other relating to its agreement as to the $66,000 bond issue. In all of these orders the county treasurer was directed to set aside out of the funds coming into his hands for county road purposes the sums agreed upon, and further, to honor the requisition of the treasurers of the said districts for the amount of said aid on the first day of October of each year, beginning with 1932 and continuing through the period of bond payments and that the treasurer of Pulaski County should pay each year to the treasurers of the improvement districts the said sums and charge the amounts paid against the road revenues of Pulaski County for that year. In the orders there was direction that certified copies of the same be furnished the county treasurer, and that the same should be his authority for obeying the judgment and orders of the court.
At a succeeding term of the Pulaski County court an order was made revoking the orders of May 18 and June 15, 1931, from which last-mentioned order an appeal was taken to the circuit court where the action and order last taken and made by the county court were held to be invalid, and the first mentioned order adjudged to be unaffected by the attempted order of revocation.
It was alleged that at the time of the filing of the petition there was in the hands of the treasurer of Pulaski County the sum of $4,388 which had been allocated to the said improvement districts by virtue of the orders of the county court aforesaid, for which requisition had been made by the treasurers of the said improvement districts and which the county treasurer had refused to honor and to pay said sum as directed by the order of the county court. ' The prayer was that a writ of man- damns be issued requiring the county treasurer to comply with the aforesaid orders. The county treasurer demurred to the petition on the ground that the facts stated therein did not entitle the petitioner to the relief práyecl.
In support of the action of the circuit court sustaining the demurrer, the appellee contends that the orders of the county court upon which the petition was based were void for the reason that such orders were made without any appropriation having been made by the county levying court. It is argued that the petition of appellant does not show that there was ever an appropriation made by the quorum court for the county court to enter into any kind of contract with the appellant district by which the county should assume the payment of 25 per cent, of the outstanding bonds of the district.
The county court is a court of superior jurisdiction, and, in making the orders, was dealing with a subject-matter over which it was given jurisdiction by the Constitution, and it must be presumed that all necessary steps were taken in the absence of a showing to the contrary, and, if it was necessary that an appropriation be first made by the levying court, that this was ■ done. It further appears from the allegations of the petition that these questions have been settled by a final judgment of the Pulaski Circuit Court.
It is next argued that, if the orders were valid in so far as they bound the county to pay 25 per cent, of maturities on the outstanding bonds of appellant districts, that portion of said orders which directed the treasurer io set aside and pay said funds to such districts upon the requisition of the treasurers of the districts is Amid because not in accordance-with the procedure set forth in §§ 1914-25 and 2029 of Crawford & Moses’ Digest, which provide for disbursement by the county -treasurer of money in the treasury on warrants drawn by order of the county court, and that all claims against the county be presented to the county court for alloAvance or rejection after verification in the manner prescribed. These sections deal with those classes of demands which are for materials furnished, or service rendered, and are for the purpose of ascertaining whether they are valid claims which should be paid. The orders of the county court under consideration were equivalent to an allowance of the claim and sufficiently direct the manner in which they are to be paid, and there would seem to be no necessity for the procedure under the sections mentioned.
It is argued lastly that the appellants are indebted to the county in a sum in excess of that claimed in the instant proceeding, and reference is made to an exhibit filed with the petition of the appellants in support of this contention. That exhibit is a decree of the Pulaski Chancery Court rendered on the 30th day of October, 1931, in which, among other things, it is adjudged that the State of Arkansas have judgment, for the use of Pulaski County, against the plaintiff in the sum of $17,-750. This judgment is only conclusive of the fact that on that date the appellant district was indebted to the county in that sum, but it is not sufficient to sustain the contention of the appellee that the said indebtedness still exists. This is a question to be determined by proof.
We are of the opinion that the complaint states a cause of action, and that the court erred in sustaining the demurrer. The judgment of the trial court is therefore reversed with directions to overrule the demurrer, and for further proceedings according to law. | [
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McHaney, J.
Appellant, a white woman, brought this action to recover from appellees, negro pawnbrokers, the value of one diamond which she alleged they took from her by substitution, a trick amounting to theft. There was a trial to a jury, which resulted in a verdict and judgment for appellees.
Complaint is made of the admission and refusal of certain testimony over appellant’s objections and exceptions. No sufficient abstract is made of the testimony for us to pass upon these questions intelligently. No abstract is made of the motion for a new trial, and we cannot tell, without exploring the record, whether these alleged errors were assigned therein.
Complaint is also made of the use of the word “ring” instead of “diamond” by the court in its instructions to the jury. This is the only error argued regarding the instructions, and it was such an error, if an error at all, as should have been met by a specific objection. True, this suit was for the value of a diamond stone, and not a “ring,” and if specific objection had been made, no doubt the court would have corrected his reference to the subject-matter. No such objection was made, and we do not think the jury could have been misled thereby. No objections or exceptions were made to the instructions, and no instructions were asked and refused.
As no error appears, the judgment must be affirmed. It is so ordered. | [
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Humphreys, J.
This appeal comes from the chancery court of White County, and involves the sole question of the priority of two mortgage liens on the same property, both of which secured valid subsisting debts. The oldest mortgage in point of time, and the one first recorded, was executed by W. H. Capps to the Union iBank & Trust Company on January 21, 1920. The other mortgage was executed on January 9, 1925, by W. H. Capps to the Union Bank & Trust Company. Each mortgage was duly recorded a few days after its execution. At the time of the execution of each mortgage, J. E. Lightle was vice-president of said bank and actively in charge of its affairs, and continued in the active management thereof until it became insolvent on November 4, 1930. S. P. Tapscott was a customer of said bank during the entire period from 1920 until the State Bank Commissioner took charge thereof, and, during all that time, J. E. Lightle, as his representative and that of the bank, was authorized to use the funds he had on deposit to purchase notes from the bank on his account, and to collect the interest and principal of said notes. On February 23, 1920, J. E. Lightle sold the W. H. Capps note then owned by the bank to S. P. Tapscott and assigned it to him without recourse on the bank. Thereafter, J. E. Lightle collected the interest on the note for seven years and placed the amount to the credit of Tapscott, the last collection being made on January 1, 1927. No notations of these collections or payments were entered on the margin of the record where the mortgage was recorded. At the time said bank took its own mortgage on the same property from W. H. 'Capps, the debt and mortgage wbicb it bad sold to Tapscott was still a valid and subsisting lien against said land, and, according to the weight of the evidence, it was the intention and agreement of the bank that tbis mortgage should constitute a second lien on said property. After the bank went into liquidation, there was entered on the margin of the record of the last mortgage by the special deputy commissioner, a payment of $257, wbicb bad been paid on the note and mortgage on March 3, 1929.
The Bank Commissioner acquired only such rights as existed in favor of the bank on the day the doors closed. He stepped into the shoes of the bank and could not by any act change the relationship existing at that time between the bank and Tapscott relative to these mortgages. If the bank bad estopped itself to claim priority of it own mortgage over that of Tapscott, the Bank Commissioner could not change the status by making the marginal entry mentioned above.
The bank in the instant case is not a third party or stranger to these mortgages, and cannot invoke the benefit of § 7382, Crawford & Moses’ Digest, by complying with the requirements therein. The Bank Commissioner gained nothing by an attempt to comply with the provisions of said act.
Again, the agreement that its mortgage should not have priority over the Tapscott mortgage and its conduct in reference to the Tapscott mortgage equitably estops it and the Bank Commissioner from claiming priority of the second over the first mortgage. The facts bring the instant case well within the case of Merchants’ & Planters’ Bank v. Citizens’ Bank of Grady, 175 Ark. 417, 299 S. W. 753. In that case, we find tbis excerpt from Jones on Mortgages, 7th ed., vol. 1, § 608, peculiarly applicable to the instant case:
“Parties may, as between themselves, make a valid agreement, though it be verbal only, that one of two mortgages shall be prior to tbe other.”
No error appearing, the decree is affirmed. | [
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Mehaffy, J.
The appellant, E. M. Birnbach, filed suit in the Pulaski Circuit Court alleging that on or about February 4, 1933, the appellee, John Kirspel, approached him and advised him that he had an option for 20 days on certain property situated in the city of Little Rock; that said option was taken in the name of George Porbeck, but that he, Kirspel, was the real party in interest. Appellant alleged that Kirspel employed him to make a sale of said property within the limit of the option of 20 days. Kirspel at the time advised appellant that there were taxes against said property of about $2,000 and he wanted to sell the property for $6,500, the purchaser to assume $2,000 of taxes, and Kirspel agreed to pay appellant whatever sum he might sell the property for in excess of $8,500. The appellant immediately went to work to secure a purchaser, and one Otto Finkbeiner offered for the property $7,000 in cash, and to assume the $2,000 taxes.
Prior to February 13, 1933, appellant advised Kirspel that Finkbeiner was considering the purchase. On February 13, 1933, Finkbeiner agreed to purchase the property and appellant accompanied by Finkbeiner, went to Kirspel’s office and demanded an abstract and deed, advising Kirspel that Finkbeiner had the cash to pay when the title was approved. Kirspel declined to make the deed or to have the owners of the property to make it, and refused to comply with the. contract with Birnbach. It was alleged that Finkbeiner was able to pay and ready and willing to assume the $2,000 taxes and pay $7,000 in cash. Appellant alleges that under their contract, Kirspel owes him a commission of $500 which he refuses to pay.
Appellant then filed an amendment to his complaint alleging that he was a real estate salesman and licensed as such under act 148 of the Acts of 1929. Appellees answered, denying all the allegations in the complaint. The evidence was taken, and, at the. close of appellant’s evidence, the court directed a verdict for appellee. The case is here on appeal.
There is very little conflict in the evidence. The evidence tends to show that Porbeek had a written option of 20 days to sell a certain piece of property in Little Bock; that Kirspel was interested with Porbeek; that Kirspel secured the services of Birnbach to make a sale of the property within the 20 days, promising to pay Birnbach all that Birnbach sold the property_ for in excess of $8,500; that Birnbach secured a purchaser ready and willing to pay $9,000 for the property, and that Kirspel and Porbeek declined to make the sale to the purchaser, but had already sold or agreed to sell it to others. Birnbach had a license under act 148 for 1932. About February 1, 1933, Birnbach went to the office of the Arkansas Beal Estate Commission, and the secretary informed him that the issuance of licenses had been suspended pending the outcome of a bill in the Legislature to repeal the act creating the Arkansas Beal Estate 'Commission. Birnbach’s license for 1932 expired on December 31, 1932.
W. A. Beed, secretary of the Arkansas Beal Estate Commission, testified that Bay Birnbach came to his office about February 1, 1933, to see about a license. He explained to Birnbach about the bill pending in the Legislature, and told him that, if he paid his fees, there was no provision for returning them, and that he thought it would not be fair to take the money for the license until the bill in the Legislature was disposed of, but that he would take his application and put it on file. He also testified that when the applications were taken, they were put on file and when the fee was paid, license would be issued as of the date of the application. Birnbach made no application for license during the month of January, 1933, and at the time he talked to Beed about license, he did not make any application in writing, as required by law, and did not make application until February 21, 1933, when the transaction for which he seeks to recover a commission was on February 13, 1933.
Section 5 of act 148 provides that every applicant for real estate broker’s or salesman’s licenses shall ap ply in writing upon blanks furnished by the commission. It also provides that the application shall be accompanied by the recommendation of at least five citizens, real estate owners not related to the applicant, who have owned real estate for a period of five years or more in the county. The law requires the application to be accompanied by the fee.
Section 2 of act 148, among other things, provides: “No recovery may be had by any broker or salesman in any court in this State on a suit to collect a commission due him, unless he is licensed under the provisions of this act, and unless such fact is stated in his complaint.”
Act 148 was amended by act 142 of the Acts of 1931, but the amendment is not important here.
The appellant correctly states that the only question presented for our consideration is, did the failure of Birnbach to have a license as a real estate broker or salesman under act 148 of the Acts of 1929, deny him the right to go forward with his business as a real estate agent and collect his commissions in the event of a successful sale? Appellant also states: “If Birnibach made no effort to secure such license, he would have no cause of action.”
The undisputed proof shows that Birnbach’s license expired December 31, 1932. He does not claim to have made any effort to secure license during the month of January, 1933. The evidence shows that about February 1, 1933, he went to the office of the Arkansas Real Estate Commission to see about license, and was advised by the secretary that there was a bill pending in the Legislature to repeal act 148, and that they were uot issuing any licenses and would not until after the adjournment of the Legislature; but Reed at that time advised him that they were taking applications, and that, if license was thereafter granted, they would be dated back to the time that the application was made. The law requires the application, to be in writing. Birnbach does not claim that he made any application in writing until February 21, 1933. The transaction with appellees was on February 13, 1933. At the time of the trans action, the sale to Finkbeiner, the appellant does not claim that he had any license or that he had made any written application, as the law requires.
Act 148 provides: “No recovery may be had by any broker or salesman in any court in this State on a suit to collect a commission due him, unless he is licensed under the provisions of this act, and unless such fact is stated in his complaint.
Under the provisions of this statute, a salesman without license cannot recover any commission. However, this court, long before the passage of act 148, stated: “The law is well established that where a statute prohibits engaging in a business or calling without having procured a required license, or where it expressly vitiates all contracts made by unlicensed persons while engaged in such business or calling, a contract made by one who has no license is invalid and cannot be enforced.” Stiewel v. Lolly, 89 Ark. 195, 115 S. W. 1134.
In that case the ordinance of the city merely prescribed the amount of the license fee, and, as stated by the court in that case, it contained neither a penalty nor •' prohibition against engaging in this business without, license, nor did it undertake to invalidate a contract made by an unlicensed person.
In the instant case the law contains a penalty, a prohibition against engaging in the business without a license, and expressly invalidates the contract for commissions, and provides that commissions cannot be recovered.
“It is the rule in most jurisdictions that a broker who fails to procure a license to carry on his business, as required by law, is barred recovery of commissions for acting as a broker. ” Walker on Real Estate Agency, (2d ed.) 541; Whitfield v. Huling, 50 Ill. App. 179; Yount v. Denning, 52 Kan. 629, 35 Pac. 207; Richardson v. Brix, 94 Iowa 626, 63 N. W. 325; Buckley v. Humason, 50 Minn. 195, 52 N. W. 385; Law of Real Estate Brokerage, Nelson, 140.
This court recently said: “It is unimportant whether he had a license as a salesman for appellee at ¡lie time of such agreement, or a license on his own ae count, or any license at all, since lie was duly licensed at the time he perfected the sales and earned the commissions.” Talley v. Tuggle, 183 Ark. 957, 39 S. W. (2d) 707. In the above case the court impliedly holds that he must have a license at the time he earned the commission.
It is, however, contended by the appellant that it was through no fault of his that he did not have, license, and that he did all he could to procure license. We have already shown that he made no application for license in January, 1933, and made no application in February until the 21st. He was told by the secretary of the Commission that, if he would make application, when his license was issued, it would be dated the same date as his application, and notwithstanding this he still neglected to make, application until some days after his transaction with appellees. At the time of this transaction he had no license and no right to sell real estate, and could not recover commissions therefor. He could have, made his application, and could have gone further than that. In order to have done all that he might have done, if he was refused a license after maldng his application, he could have compelled the issuance of license by mandamus.
Appellant relies first on the case of Wicks v. Carlisle, 12 Okla. 337, 72 Pac. 377. In that case the court held that the city of Guthrie had ceased to collect an occupation tax from the real estate agents, and, while the ordinance requiring it was never repealed, the mayor and city council instructed the city officers to collect no more tax from them. The applicant had paid tax as long as the officers would receive it, and the court held it was the fault of the city that the tax was not paid. The applicant in that case, however, offered to pay the tax and did all that he could to pay it, but the mayor and city council, the very persons who passed the law, had abandoned it. The court also held in that case that under ordinary circumstances an agent could not collect commissions without complying with the law.
In the case of Woodside v. Baldwin, 4 Cranch C. C. 174, a physician practiced medicine and charged for his services, and the court held that he could .collect because at that time there was no medical board, and it was admitted that there had been no election of officers of the society for several years, and that there was no board of examiners during all the time the physician practiced.
In Mead v. Lamarch, 150 App. Div. 42, 134 N. Y. S. 479, referred to and relied on by appellant, the court said: “There being no board of examiners, and it being impossible for plaintiff to obtain-a certificate of competency, his position was in effect as though an impossibility of performance had been created ¡by the law.” No such condition exists in the instant case.
The other cases relied on by appellant are very similar to those to which we have called attention, and we deem it unnecessary to review them further, or to call attention further to the distinction between those cases and the instant case. We think that the case of Stiewel v. Lally, supra, settles this case. This seems to be the settled law in this State. The judgment of the circuit court is affirmed. | [
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Mehaffy, J.
This suit was begun in the Drew Circuit Court by appellee against the appellant to recover damages in the sum of $5,000 for personal injury, alleged to have been caused by the negligence of appellant.
The appellant operates an electrical system at Wilmar, Drew County, Arkansas, and it is alleged that it maintained an electrical transmission line, conveying 33,000 volts of electricity near appellee’s home, and also a service line of 110 volts; that on July 3, 1932, one of the 33,000-volt wires fell across the 110-volt wires, causing an unnecessary, excessive and dangerous amount of electricity to be transmitted into the residence of appellee, and into the light and radio connections in said residence ; that, as a result, the radio was burned and blazed up, and appellee, in order to save the residence from being burned, took hold of the insulated cord which connected the radio to the 110-volt service line, and broke the connection by separating the plug, and that when she did so, there was a powerful electric are therefrom, which damaged her eyes, and the current entered her body, causing injury to her head, eyes, heart, muscles and nerves. It was alleged that appellant was negligent in erecting and maintaining the wire carrying 33,000 volts of electric current which broke and fell upon the 110-volt wires, connected Avith the residence of appellee; that, in erecting and stringing the wire upon the poles, said -wire was stretched so tight that the strain and tension thereon was so great that said wire was pulled in two. It is also alleged that appellant did not exercise reasonable care in mailing inspection, and that, if it had it would have known of the strain upon the wire.
Appellant filed answer, admitting the ownership of the 33,000-volt transmission line and the 110-volt distributing line, but denied all allegations of negligence, and denied that appellee received any injuries, and alleged that, if appellee was injured, it resulted from her own negligence.
There was a verdict and judgment in favor of the appellee against the appellant for $2,093.08. The case is here on appeal.
There is no dispute about the transmission line, which carried 33,000 volts, breaking and falling on the other wires. There is a sharp conflict in the evidence as to the injury, and also contention is made by appellant that appellee was guilty of negligence herself, which caused the injury. It would serve no useful purpose to set out the testimony. It is in conflict on all matters of fact.
The evidence showed that there were pennies in the fuse box, and the appellee’s evidence shows that appellant’s representatives knew of this before the injury. This evidence is also disputed. No one testified as to how much voltage went into the house. The wires had been there several years, and one Avitness testified that he inspected the -wires 60 days before the injury.
Witnesses for appellant testified that it would be physically impossible for the line to break under strain because this break happened in the summer time, and breakage of -wires drawn too tight would occur in the -winter months. Several witnesses also testified that, in their opinion, the transmission line was struck and severed by lightning. No one saw the line struck by lightning, nor did any one testify about lightning on that day.
Appellant first contends that the ease should he reversed upon the opinion in the case of Dierks Lumber & Coal Co. v. Brown, 19 Fed. (2d) 732. In that case the court held that the doctrine of res ipsa loquitur applied in a case where the evidence showed that a current of electricity of high voltage, unnecessary, unsafe and unsuitable, passed into the store over the power company’s wires and caused injury. The breaking of the 33,000-volt wire in the instant case, breaking and causing high current of electricity to enter the home of appellee, causing injury, speaks for itself, and makes a prima facie case of negligence. The court further said, in the case relied on by appellant: “If no further evidence appeared in this case than circumstances showing that an excessive current of electricity of high voltage, unnecessary, unsafe and unsuitable for the purposes of the store, was transmitted over defendant’s wires into the store, and that plaintiff suffered injury therefrom, such circumstances would point to negligence and be sufficient, no facts or circumstances being shown to disprove the same, to take the case to the jury. As the Supreme Court said in the Sweeney case, supra [228 U. S. 233, 33 S. Ct. 416]: ‘The circumstances are evidence of negligence.’ ”
Of course, the presumption arising from the happening of the accident may be rebutted, and in this case the appellant undertook 'to rebut this presumption by showing that it had inspected the wires, and by introducing evidence tending to show that the high voltage wire was struck by lightning. These were facts, however, for the jury to determine.
Appellant next cites City Electric St. Ry. Co. v. Conery, 61 Ark. 381, 33 S. W. 426. It is contended that the test of the duty is announced in this case. The court, after stating the high degree of care required of one controlling electric current, said: “This fact being established, the next question is, upon what duty of the appellant to the appellee can this action be based? The answer to it is, upon the duty enjoined by the rule which requires every one to so use his property as not to injure another. The applicability of this rule may be shown by many illustrations. One is where an owner of a vicious animal accustomed to do hurt, knowing his habits, negligently allows him to escape. He is responsible for the mischief the animal does, because it was the duty of the owner to keep him secure.”
The court then, after citing other illustrations, continues: “This rule applies with equal force to electric companies. They are bound to use reasonable care in the construction and maintenance of their poles,. cross-arms and wires and other apparatus along streets and other highways. They are required to do so for the protection of persons and property. If they negligently allow their wires to fall or sag, or poles or other apparatus to fall, to the injury of another, they are responsible in damage for the wrong done, if the party injured is guilty of no culpable negligence contributing to the injury.”
We do not agree with appellant that it was the duty of the appellee to show that transmission wire broke because it was stretched upon the poles so tight that the strain and tension thereon pulled the wire in two. The circumstances and the breaking of the wire is evidence of negligence.
The appellant argues at length that the evidence is insufficient to sustain the verdict. This court has many times held that the jury will not be permitted to guess and speculate, but, where there is any substantial evidence upon which to base a verdict, it cannot be disturbed by this court.
If the evidence had established the fact that the wire was struck by lightning and severed within such a short time before the accident that the appellant could not have repaired it by the exercise of ordinary care, the appellant would not be liable; but whether the evidence establishes this fact was a question for the jury.
Objection was made by appellant to some of the instructions, but these objections are not argued in its brief.
“The duty of an electric company in reference to keeping its appliances in safe condition is a continuing one. Not only must it exercise a high degree of care in the original selection and installation of its electric ap paratus, but thereafter it must use commensurate care to keep the same in a proper state of repair. The obligation of repairing defects does not mean merely that the company is required to remedy such defective conditions as are brought to its actual knowledge. The company is required to use active diligence to discover defects in its system. In other words, an electric company is bound to exercise due care in the inspection of its poles, wires, transformers and other appliances.” Curtis on Electricity, 699; Ark. Power & Light Co. v. Cates, 180 Ark. 1004, 24 S. W. (2d) 846.
“A company maintaining electrical wires, over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have a right to go, either for work, business, or pleasure, to prevent injury. It is the'duty of the company, under such condition, to keep the wires perfectly insulated, and it must exercise the utmost care to' maintain them in this condition at such places. And the fact that it is very expensive or inconvenient to so insulate them will not excuse the company for failure to keep their wires perfectly insulated.” 1 Joyce on Electricity, 735; Duncan Elec. & Ice Co. v. Crisman, 59 Okla. 67, 157 Pac. 1031; Ark. Power & Light Co. v. Cates, supra.
We think the evidence was sufficient to submit the questions of fact to the jury as to the negligence of the appellant and the contributory negligence of appellee. On all the issues of fact where evidence was introduced, the testimony was in conflict. All of these questions were for the jury, and not the court.
We find no error, and the judgment is affirmed. | [
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Hart, C. J.,
(after stating the facts). The plaintiff asked for an instructed verdict, which was denied by the court, and the court submitted the case to the jury upon the question of fact whether or not the association obtained during the season the “best prices obtainable by it under market conditions.”
It is earnestly insisted by counsel for the plaintiff that there was no evidence upon which to submit such question of fact to the jury, and in this contention we think counsel are correct.
The articles of the association provide that it shall not have any capital stock, and it is organized for the purpose of protecting the producers of farm products from depreciation in the prices thereof by combination of large manufacturing corporations and speculators. Its object is to sell the raw product annually from time to time as there is a legitimate demand therefor, and, by the extension of credit to farmers, to enable them to collectively market their crops. Arkansas Cotton Growers’ Cooperative Association v. Brown, 168 Ark. 504, 270 S. W. 946, and McCauley v. Arkansas Rice Growers’ Cooperative Association, 171 Ark. 1155, 287 S. W. 419.
The contract under consideration in this case provides that the association shall pool all cotton of a like grade and staple delivered to it by its members, and that its classification shall be conclusive. The agreement provides that each pool shall be for a full season. Then it is provided that the association shall resell such cotton “at the best prices obtainable by it under market conditions.” This does not mean the best prices that could be obtained by it in any one day or on several different dates during’ the same season. Such a conclusion would tend to defeat the very purpose of the organization. The farmers are located all over the State, and each acting separately could not protect himself against speculators. To meet this condition and to enable the farmers to combine their resources, the Cooperative Marketing Association Act was passed, and the farmers were enabled to place their combined products in the hands of an association as a selling agent selected by them to the end that prices might be stabilized and that they might receive the worth of their crops. The association was given full power to sell the cotton of the same or different pools at such time or times as might be deemed to’ the best interest of the members.
It will be noted that the marketing agreement made the classification of the association conclusive upon the members, and provided that each pool should be for a full season. This made the judgment of the association in classifying and selling the cotton conclusive, except for fraud or gross mistake which would amount to fraud.
It would be destructive of the purposes of the association if it was compelled to account to the members for the highest price it could have obtained for the cotton on any particular day or days. In the very nature of things, no one could know what would be the highest market price obtainable, under such a construction of the contract, until after the cotton season was over. The cotton growers were associating themselves together as authorized by the act, and have signed agreements for marketing their cotton with the association, which had for its purposes the classifying and grading of the cotton, the selling of the same for the best market price obtainable, in the judgment of the officers of the association..
The association was allowed to advance funds to its members, and this of itself showed that it was intended that the cotton should be held and sold by the association when, in the judgment of the officers, the best price could be obtained. It is true that the defendant introduced witnesses that better prices could have been obtained upon several different dates during the cotton' season of the year 1925. There is nothing whatever to show that the officers of the association acted in bad faith in selling the cotton or that they acted in such a reckless or careless manner as to impeach the sale made by them.
The contract between the association and the members expressly provides for advances to the members, and if, by mistake, the association shall make an excess advance to any one member, it would be entitled to recover the excess from the member. In California Bean Growers’ Association v. Williams, 82 Cal. App. 434, 255 Pac. 751, it was held that a contract between a cooperative association and grower, expressly providing for advances to the grower and specifying that such advances might be deducted from remittances on sale of the crops, necessarily implies that the grower would reimburse the association for all such advances. See also Re Joseph Murphy Company, 214 Pa. 258, 63 Atl. 745. This prin-op^^the present case necessarily results from the con-The contract provides for advances by the agSQJHiatkaljataláts members, and this carries with it an jffifdi'^BaMseenie-fft - to pay back any excess advance. Hbi?2gA\ffi'dei!iffiesfii(!tlBof the present case, we are of the S?fe1ffiSPf'^Kí&ríiSt.dÍre0tÍIlg & V6rdiCt ^
-noo iípiaiiaááifo^p.^ti«Ln®É áknpssmgiiíhej appeal of the plaiistí.iffisiB.ü'tbeiéiFeuife'iícTOits? bmfaM^tfeatiebdibeMeaid. In thfé ífifdpteáfr9áfI)l35#Mt&fe^Wbeace Mm «e fcfwMsíf'We° mMOT WM 0f the peace and was not a dismissal for want of prosecution. The plaintiff appeared in court and asked for time to produce its witnesses. The court thought that the plaintiff had been negligent in not having its witnesses in court, and rendered judgment that the cause be dismissed for want of witnesses, and that the defendant be discharged with costs. The plaintiff appealed to the circuit court. When the case was carried by appeal to the circuit court, it was there for trial de novo on the merits, rather than for 'correction of errors committed by the justice of the peace. Hopkins v. Harper, 46 Ark. 252. As said in Martin v. State, 46 Ark. 38, when a case is carried by appeal to the circuit court it is there for trial on its merits, and technical objections to the forms of procedure in the lower court are futile.
Because the court erred in refusing to direct a verdict for the. plaintiff, the judgment must be reversed; and, inasmuch as the testimony of the defendant on the question whether the association sold the cotton ‘ ‘ at the best prices obtainable 'by it under market conditions” might be different on a retrial of the case, the cause will be remanded for a new trial. | [
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Hart, C. J.,
(after stating the facts). It is first earnestly insisted by counsel for the defendant that the court erred in overruling his motion for a change of venue. The petition for a change of venue was in statutory - form, and contained the affidavits of numerous qualified electors who were actual residents of the county and not related to the defendant in any way. The court found that one of the supporting affiants was a credible person, but that the others were not. That is to say, the court found that only one of the supporting affiants had knowledge as to the existence or nonexistence of prejudice in the minds of the inhabitants of the whole county. The other affiants, on cross-examination, admitted that they only knew of the existence of prejudice against the defendant in certain portions of the county. The entire county was covered by them, but no one of them knew of the existence or nonexistence of prejudice against the defendant in all parts of the county. One of the supporting affiants was not produced by the defendant in court, and was not examined .at all.
Section 3087 of Crawford & Moses’ Digest provides for a change of venue in any criminal case whenever it shall appear, in the manner hereinafter provided for, that the minds of the inhalbitants of the county in which the case is pending- are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Section 3088 provides for the filing of a petition setting forth the facts, verified by affidavit, and that the petition be supported by the affidavits of two credible persons who are qualified electors, actual residents of the county, and not related to the defendant in any way. The application for change of venue in a criminal case is addressed to the sound discretion of the court, and this court 'will not overrule the ruling of the trial court denying an application for a change of venue, unless it is made to appear that there has been such an abuse of discretion as to constitute a denial of a substantial right. White v. State, 83 Ark. 36, 102 S. W. 715; Spurgeon v. State, 160 Ark. 112, 254 S. W. 376; and Padgett v. State, 171 Ark. 556, 286 S. W. 810. Numerous other cases might be cited to the same effect, but the rule is so firmly established in this State that a further citation of authorities is unnecessary.
These authorities also establish that the court may examine the supporting affiants to determine whether or not they are credible persons within the meaning of the statute. The examination is made for the purpose of showing their means of knowing the condition of the minds of the inhabitants of the county. The statute requires the petition to state that the minds of the inhabitants of the county in which the case is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein, and the truth of the allegations in the petition must be supported by the affidavits of two credible persons. This means that the supporting affiants must know the condition of the minds of the inhabitants throughout the whole county. Otherwise, they will not be credible persons within the mean- rug of the statute. The petition itself and the supporting affiants must conform to the requirement of the statute, and it was within the province of the court, in the exercise of a sound discretion, to refuse to grant a change of venue unless two supporting affiants were credible persons within the meaning of the statute, and that meant that each of them, upon examination by the court, must show that he had knowledge of the condition of the minds of the inhabitants throughout the whole county as to the existence or nonexistence of prejudice -against the defendant. One of the supporting affiants was not produced by the defendant, and for that reason the court did not err in holding that he was not a credible person within the meaning of the statute. It was the duty of the defendant to have produced in court this affiant for the purpose of enabling the court to examine him to determine whether or not he was a credible person.
It is next insisted that the court erred in not directing a verdict in favor of the defendant. , The indictment was returned under § 688 of Crawford & Moses’ Digest, which provides a penalty for false entries or statements in bank books. Without setting forth the entire section, it in effect provides that any person who shall knowingly and willfully make or cause to be made any false entry in the books of any bank, with the intent to deceive the Bank Commissioner or the examiner, shall be deemed guilty of a felony. This statute was passed by the Legislature of 1913, and is a part of a statute creating the State Banking Department and providing for the organization and control of banks. Prior to the passage of this statute there was an old statute on the subject, which is § 24-74 of Crawford & Moses’ Digest. Among other things it provided that every person who, with intent to defraud, shall make any false entry or shall falsely alter any entry made in any book of accounts by any banking organization within the State, shall, on conviction thereof, be punished as for forgery.
In construing this statute in Mears v. State, 84 Ark. 136, 127 S. W. 951, it was held that the statute makes an intent to defraud an essential element of the offense charged. Again, in Quertermous v. State, 95 Ark. 48, 127 S. W. 951, the court said that the word “falsely,” as used in the statute, not only imports an element of fraud or bad faith, but goes further and relates to the act. The court quoted with approval from the opinion of Judge Thayer in United States v. Crecilius, 34 Fed. 30, in which, in construing a statute on the same subject passed by Congress, regulating national banks, the learned judge said: ‘ ‘ The statute evidently was enacted to prevent bank officials and officers from concealing the actual financial condition of national banking associations, by means of a falsification of any of the books of account or statement or report which they are by law required to make. ’ ’
In construing the act of Congress, the Supreme Court of the United States held that it cannot be a false entry to make a recital on the books of the bank which is indeed the truth. Coffin v. U. S., 156 U. S. 432, 15 S. Ct. 394; 162 U. S. 664, 16 S. Ct. 943; Graves v. U. S., 165 U. S. 324, 17 S. Ct. 373; and Agnew v. U. S., 165 U. S. 36, 17 S. Ct. 235.
Under our statutes the crime may be committed personally or by directing the false entry to be made. If the entry upon the books of the bank of the matter contained in the deposit «lip is not true, it is a false entry. If it represents an actual transaction, it does not fall within the denunciation of the statute.
This brings us to a consideration whether the transaction in the present case actually took place and was entered upon the books of the bank actually as it occurred. The jury had a right to consider all the facts connected with the transaction; and, when this was done, we think that it might have found that the entry was a false one within*, the meaning of the statute, and made with the intent to deceive the bank examiner. The deposit was made by the defendant on the 30th day of June, 1926, and an examination was made by the bank examiner about a month thereafter. The entry on the books of the bank .showed a deposit slip in favor of D. D. Adams, Sr., which was evidenced by a draft drawn by him for $75,000. If Adams had had the power to draw the draft in question, the transaction would have been a genuine one, and there would not have been any false entry upon the books of the bank. The evidence shows, however, that the entry did not show the real transaction. Adams was not entitled to a credit upon the draft drawn by him until it was also signed by Scroggins and Bridewell. Upon this account the transaction was not entered upon the books of the bank in accordance with the actual facts in the case, and -the jury might have found that the entry was a false one. Under the circumstances, the jury might also have found that the transaction as it was entered upon the books of the bank was made with the intent to deceive the bank examiner. The entry did not represent a transaction as it actually existed, and was therefore calculated to deceive and did actually deceive the bank examiner when he examined the books .of the bank. Therefore we do not consider this assignment of error well taken.
The next assignment relates to the error of the court in excluding the testimony offered by the defendant as to his intent in the matter. We have copied this in its entirety in our statement of facts, and need not repeat it here. Under the terms of the statute itself, an intent to deceive the Bank Commissioner or bank examiner must be alleged and proved. The statute, by its very terms, is designed to punish only those officers of a bank who make or cause to be made false entries in a book of accounts with the intent to deceive the Bank Commissioner or bank examiner. Of course, if the false entry is calculated to deceive the bank examiner, the making of it in the books of the bank with the intent to deceive him is all that is necessary to bring the act within the meaning of the statute. This is apparent from our own cases above cited, as well as from the following cases: United States v. Britton, 107 U. S. 655, 2 S. Ct. 512; Coffin v. United States, 162 U. S. 664, 16 S. Ct. 943; Agnew v. United States, 165 U. S. 36, 17 S. Ct. 235; Cummins v. United States (Cir. Ct. of Apppeals, 8th Circuit), 232 Fed. 844; Galbreath v. United States (Circuit Court of Appeals, 6th Circuit), 257 Fed. 648; and United States v. Reece (District Court, D. Idaho, E. D.) 280 Fed. 913.
Our statute expressly makes the intent of the person charged with deceiving the bank examiner an essential element of the offense, and this must be alleged and proved. The excluded evidence might have shed light upon the intent of the defendant under the circumstances. It was within the province of the jury to draw all legitimate inferences from the evidence, and that excluded might, in the minds of the jury, have shed light upon the fact whether or not the defendant intended to deceive the bank examiner by causing a false entry to be entered upon the books of the hank. The defendant was entitled to have had all the facts and circumstances connected with the transaction shown in evidence before the jury in order to enable it properly to determine the matter.
Therefore we are of the opinion that the court erred in refusing to allow defendant’s counsel to introduce the excluded evidence before the jury, and for that error the judgment will be reversed, and the cause remanded for a new trial. | [
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Smith, J.
The appellant hank sued the appellee Bradley upon a note executed to its order by Nannie and Claude Cowan, and in its amended complaint alleged the following facts as constituting its cause of action: The note sued on was a renewal note, and in making the original loan appellee “verbally stated that ‘Nannie Cowan is my sister-in-law, and if the bank will make this loan I will personally guarantee the repayment of same. ’ ” It was further alleged: ‘ ‘ That said hank, relying upon said statement of personal guaranty so made by the said W. J. Bradley, did make said loan to the said Nannie Cowan and Claude Cowan, in the sum of $437.50, on the 11th day of May, 1920, and would not have made said loan except for the personal guaranty aforesaid so made by the said W. J. Bradley.”
After alleging several renewals of the note, upon some of which appellee paid the interest, it was further alleged: ‘ ‘ That at and prior to each and every renewal of said note the said W. J. Bradley solicited the renewal of the same, and each time stated that, if the same should be renewed, he would remain bound upon his original guaranty, and guarantee the repayment of the same.”
A demurrer to this amended complaint was filed, and overruled, whereupon appellee, reserving the demurrer, filed an answer, in which he denied that he had guaranteed the payment of the note, and set up the defense of the statute of frauds.
At the trial of the cause Mustain testified that he was and for twelve years had been the cashier of the bank, and that during this time appellee, who was the largest stockholder, had been a director and vice president. Appellee, who was vice president at the time the original loan was made, wanted the loan made Nannie and Claude Cowan to pay.a note for $437.50 which they owed on a truck. Witness declined to make the loan until the board of directors of the bank had approved it, and, when the board met, Bradley put in an application for a loan to Mrs. Cowan, who, Bradley said, was his sister-in-law, and was reliable and responsible. Neither- witness nor the president of the bank knew the Cowans, and the president stated that, as he did not know the Cowans, and they were not depositors of the bank, “he would absolutely refuse to make the loan, unless Mr. Bradley himself would guarantee the loan; so Mr. Bradley said he would absolutely guarantee the loan if the bank would let Mrs. Cowan have the money. The loan was made upon the credit of Mr. Bradley absolutely. It was not made upon the credit of Mr. or Mrs. Cowan, and would not have been made except for Mr. Bradley’s promise to pay it or see that it was paid.” The note was renewed several times at the request of Mr. Bradley, who more than once paid the interest upon the renewal.
The cashier further testified that Bradley was present at' the board meeting when it was decided to make the loan, and the minutes of this meeting were offered in evidence, it being therein recited: “Application secured from W. J. Bradley for a loan to Nannie Cowan for $437.50. W. J. Bradley agrees to guarantee payment of said loan.” The minutes were signed by the president and secretary.
The testimony of the president of the bank is substantially the same as that of the cashier.
The testimony of appellee is in irreconcilable conflict with that of the cashier and president of the bank, his testiihony being to the effect that he presented an application for this loan, and recommended that it be made, but that he did not guarantee it. He called attention to the fact that he did not sign the minutes of the bank meeting, and stated that he did not know such minutes had been written up.
There was no question about the amount due on the note, this being, with the interest thereon, something over $500, yet the .jury returned a verdict in favor of the bank for only $200. Judgment was rendered upon this verdict, and both parties prayed and were granted an appeal.
Appellant insists that judgment should have been rendered in its favor notwithstanding the verdict for the full amount of the note; whereas appellee insists that the judgment rendered should be reversed, and the cause remanded with directions to sustain his demurrer to the complaint.
Appellee’s abstract of Ms motion for a new trial refers only to Ms demnrrer, and we consider no other question, as it is not likely, if the complaint should he amended to conform to the requirements of this opinion, that another inconsistent verdict will be returned by the jury. If so, the case of Fulbright v. Phipps, 176 Ark. 356, 3 S. W. (2d) 40, defines the practice which the trial court should follow.
It has been several times held that the defense that an action sued on was barred by the statute of limitations cannot be raised by demurrer in an action at law, unless the complaint shows on its face that it is barred and also the non-existence' of any ground of avoidance of the statute. Central Clay Drainage Dist. v. Hunter, 174 Ark. 293, 295 S. W. 19; McCollum v. Neimeyer, 142 Ark. 471, 219 S. W. 746; Flanagan v. Ray, 149 Ark. 411, 232 S. W. 600; Brown v. Ark. Central Power Co., 174 Ark. 177, 294 S. W. 709.
The same rule — and for the same reason — applies to a demurrer raising the defense that the statute of frauds bars a recovery, as it has been held that a complaint which declares upon a contract which the statute requires to be in writing will be presumed to have been made in writing, or as required by the statute, and proof of a written contract will be necessary to sustain the allegations of the complaint. Hurlburt v. W. & W. Mfg. Co., 38 Ark. 594; Gale v. Harp, 64 Ark. 462, 43 S. W. 144. If the defendant denies the existence of a contract, which, to be enforceable, must be in writing, but does not plead the statute of frauds, the plaintiff, to prove the existence of a valid contract, must prove one in writing. Chicago Mill & Lbr. Co. v. Matthews, 163 Ark. 571, 260 S. W. 963; McCorkle v. H. K. Cochran Co., 144 Ark. 269, 222 S. W. 34; Cook v. Cave, 163 Ark. 407, 260 S. W. 49; O’Bryan v. Zuber, 168 Ark. 613, 271 S. W. 347; Stooksberry v. Pigg, 172 Ark. 765, 290 S. W. 355; Allen v. Bank of Eureka Springs, ante, p. 334.
Here the complaint alleges that the defendant agreed “if the bank will make this loan, I will personally guar antee the repayment of same, ’ ’ which is clearly an action to'charge the defendant upon a “special promise to answer for the debt, default or miscarriage of another,” within the meaning of the second paragraph of § 4862, C. & M. Digest, and the statute-expressly provides that no such action shall be brought unless such promise, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized. Nor can there be any presumption here, under the cases above cited, that the contract, which,- to be enforceable, must have been in writing, was in writing, for the complaint alleges that the promise was a verbal one. The demurrer should therefore have been sustained, as the complaint shows on its face that the action is barred by the statute of frauds, and shows also the nonexistence of any ground to avoid the application of the statute.
It is true the complaint does allege that the bank “would not have made said loan except -for the personal guaranty aforesaid so made by the said W. J. Bradley,” but the truth of this allegation, which the demurrer admits, does not prevent the statute of frauds ' from applying.
' In 27 C. J., chapter “Frauds, Statute of,” page 143, it is said:
“There is some authority for the view that the promise is original and not within the statute, although the third person who received the benefit is also concurrently liable therefor, provided the 'credit was given solely to the promisor, and the promisee did not rely upon the liability of the third person. But the great weight of authority rejects this view, and holds that, if the third person is liable at all, the promise is collateral and must be in writing, unless there is a new consideration beneficial to the promisor, received under such circumstances that he thereby comes under an independent duty to pay without regard to the liability of any other person.”
Among the many cases cited to support the majority view quoted is our own case of Kurts v. Adams, 12 Ark. 174, which, since its rendition, has been cited and followed many times by this court. In reaffirming the Kurtz case in the case of Chapline v. Atkinson, 45 Ark. 67, 55 Am. Rep. 531, Mr. Justice Eakin said: “However that may be, it has been the doctrine of this court for more than two-score years, without question or dissent. It is not res nova.”
In the case of Grady v. Dierks Lumber & Coal Co., 154 Ark. 255, 242 S. W. 548, it was said: “If the undertaking was, in fact, a collateral one, the (to) answer for the default of the parties who purchased the goods, the fact that the promise was the ‘sole and inducing cause’ did not transform the contract into an original undertaking.” See also Mankin v. Jones, 63 W. Va. 373, 15 L. R. A. (N. S.) 214; Grady v. Dierks, 149 Ark. 310, 232 S. W. 23; Millsaps v. Nixon, 102 Ark. 435, 144 S. W. 915; Swobnda v. Throgmorton, 88 Ark. 592, 115 S. W. 380; Goldsmith v. First Natl. Bank, 169 Ark. 1162, 278 S. W. 22.
For the reasons stated the complaint was demur-rable; and we are also of the opinion that there was no testimony changing the character of the action alleged in the complaint, according to which testimony the complaint could be treated as being amended to conform thereto. The cause of action alleged, and that proved by the plaintiff’s testimony, was the breach of a verbal contract of guaranty to pay another’s debt, and that it was the debt of another — the Cowans — is shown by the fact that they signed the original note and each renewal thereof, and theirs were the only names appearing on the note.
The subsequent promise of appellee to pay the note if renewed was a mere renewal of the original promise, and was not made upon any consideration to him moving, and was as much within the statute as the original promise. Ackley v. Parmenter, 98 N. Y. 425, 50 Am. Dec. 693; Patton v. Robbs, 175 Ark. 784, 300 S. W. 388; Zimmerman v. Hall, 102 Ark. 407, 144 S. W. 222.
The minutes of the meeting of the hoard of directors of the bank were not a sufficient writing to comply with the statute of frauds, for the reason that they were neither written nor signed by appellee, the party sought to he charged. Trustees of the Free Schools in the South Parish of Andover v. Flint, 13 Metcalf (Mass.) 539; Flint v. Pierce, 99 Mass. 68, 96 Am. Dec. 691.
In the case of Chicago Mill & Lbr. Co. v. Matthews, supra, it Avas held that the party to toe charged is the party to be charged in an action, and in the instant case that party is appellee, who neither wrote nor signed the minutes.
In the recent case of Central Clay Drainage Dist. v. Hunter, supra, it was held that the minute-book of the board of directors of an improvement district was a sufficient memorandum signed by the party to be charged to satisfy the statute of frauds; but there the record had been made by the party sought to be charged, which is not the case here.
The judgment of the court below will therefore be reversed, and the cause remanded with directions to sustain the demurrer to the complaint. | [
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Mehaffy, J.
On October 25, 1923, A. L. Bland was indebted to W. C. Cross in the sum oí $600, and on that day executed his promissory note for said sum, and gave a deed of trust upon certain lands in White County to secure the payment of said debt. After Bland had paid a portion of the debt, W. C. Cross transferred and assigned the note and deed of trust to John P. Williams, on the 31st day of August, 1925. On January 14, 1926, A. L. Bland was indebted to John P. Williams in the sum of $200, and executed his note for said sum, which became due on July 14,1926. The following is a copy of the note given by Bland to Williams:
“$200 Beebe, Ark., Jan. 14, 1926.
“On or before the 14th day of July, 1926, for value received, I or we agree to pay to J. P. Williams, or order, two hundred dollars, with interest at 10 per cent, per annum from date until paid, negotiable and payable at Beebe, Arkansas, it being for money advanced on land, to-wit: S'%, NE pt. SW-NW 17-5-16 acres, more or less, this amount to be added to the original mortgage to W. Cl Cross transferred to J. P. Williams and this day delivered to the maker of this note, with the understanding and agreement by and between the maker of this note and J. P. Williams that the title of above described property is and shall remain, with full power of disposition without notice, in such manner as he may see fit, in said J. P. Williams, until all indebtedness on above mentioned stock is paid for in full.
His
Lat X Bland
Mark
“Due July 14, 1926.
“Witness: J. E. Turnage.
(Indorsed) “Filed May 29, 1928. Ben D. Smith, clerk.”
Bland having failed to pay Williams the Cross debt and also the $200, suit was brought by Williams to foreclose the deed of trust on the property. The deed of trust ran to W. C. Cross and to his heirs and assigns. After the assignment of the note and deed of trust to Williams, and after Bland had executed the note to Williams above set out, on the 13th day of November, 1926, A. L. Bland conveyed the land described in the deed of trust to G. W. Price.
Bland, in his answer, admitted the execution of the note to Cross, and admitted that there was a balance due, and also admitted that he was indebted to Williams in a small amount unsecured. He further alleged that he had conveyed the property to Price, and that Price had assumed all indebtedness due to Cross from Bland.
Price filed an intervention, admitting- that he bought the lands from Bland, and agreed that he was to pay the balance due to W. C. Cross. He alleged that he had no notice that J. P. Williams was claiming a lien on the land for the amount due him, until the filing o.f the suit. He alleged that he is. ready and willing to pay the Cross note.
Plaintiffs filed a reply to Price’s intervention, denying the allegations in said intervention.
The evidence was undisputed about the original indebtedness from Bland to Cross, and about the note and mortgage, and about the balance due on said mortgage. But Bland testified that he did not agree for Williams to have a lien for the $200 note. He also testified that he only gave a note for $50, that he borrowed $50 from Williams and gave his note. However, the testimony of Williams and Turnage, justice of the peace, who wrote the note and witnessed Bland’s mark, testified that he executed the note for the $200, and the testimony shows that the Cross mortgage should cover this indebtedness as well as the original indebtedness to Cross.
There is some conflict in the testimony, but the chancellor’s finding is sustained by the preponderance of the evidence, and it is unnecessary to set out the testimony in detail.
The deed of trust was written on a blank used by the Union Bank & Trust Company, and, while the mortgage was made by Bland to Cross, the name of Union Bank & Trust 'Company was left in by mistake, so that the mort gage read, as to indebtedness other than the note: “Also as security for the payment of any other liability or liabilities of the grantor already or hereafter contracted to the said Union Bank & Trust Company.” Cross being the mortgagee, of course it was understood that this meant indebtedness to him, and, the printed form being used, the parties overlooked the name of the bank being printed in blank, and neglected to strike it out and insert the name of Cross.
The deed of trust did not properly describe the land, and suit was not only to collect the debt and foreclose the mortgage, but also to reform the mortgage or deed of trust before foreclosure. The ¡chancery court entered a decree reforming the mortgage and ordering the land sold to pay the balance of the original debt due Cross and also the debt due Williams.
The appellant’s first contention is that the description in the deed of trust from Bland to Cross does not contain' a description of the land in controversy, and does not contain such a description as from it the land could be located. In the first place, there was a sufficient description of the land to put any person on notice and enable them to locate the land. Besides that, both Bland and Price knew what land it was, and each of them knew that it was the only land that Bland owned in White County. But, in addition to this, this question was not raised in the lower court, and it cannot be raised here for the first time. The complaint asked for a reformation of the deed, and neither Bland nor Price made any contention or suggestion about the improper description of the land. They admitted the indebtedness, and alleged a willingness to pay the original debt to 'Cross, and Bland also admitted the other indebtedness. Not having raised the question as to the description in the lower court, they cannot raise it here.
Appéllant’s second contention is that Price would only be liable for the amount of $240.03, and states that Price had no notice, either actual or constructive, of any indebtedness due by Bland to Williams, and that for that reason the land could not be sold to pay this debt to Williams. Price, however, did have record notice of the fact that the note and mortgage had been assigned to Williams by 'Cross-, and he admits that- he knew abont it, and that Bland told him -about it. Therefore, when Price bought the property he -bought it with a knowledge that the original mortgage was made to Cross and his assigns, and with the knowledge that the note and mortgage were assigned to Williams.
As a general rule, the assignee of a mortgage or deed o.f trust has all the rights thereunder that an assignor has. And in this case Williams had all the rig*hts that Cross had; but the appellant says that it is their contention that the mortgage does not secure the indebtedness evidenced -by the $200 note given by Bland to Williams, and that Price, being an innocent purchaser for value, took the land free from any liens that Williams might have. They say, however, that Williams could doubtless hold the land for any indebtedness due at the time of the transfer of the Cross mortgage, but that he could not impress a lien upon the land against a third party simply by executing a new note and providing in it that the original mortgage should stand as a mortgage for the new note. It will therefore be seen that there is no controversy about the original indebtedness, to Cross, but it is contended that the debt to Williams is not secured by the mortgage; that there is no lien on the land as against Price for the $200 note.
The mortgagor and holder of the mortgage had a right to make any contract or agreement that they wished to make. Neither is a trustee for the other, and they may validly make any contracts or arrangements with each other in regard to the subject of the mortgage or the indebtedness between them, and such agreements are treated as any other contracts would be. 41 C. J. 602.
There is no dispute about the fact that Bland and Williams made this contract. That is, there is no dispute about Williams lending Bland $50 and Bland executing his note. Bland, it is true, swears that he only signed a $50 note, and did not agree for it to be a lien. He is, however, contradicted by Williams and Turnage, and the note itself shows that the agreement was that the $200 should be covered by the original mortgage and should be a lien on the land. Unquestionably Bland and Williams had a right to make this contract, but it is contended that it is not binding so far as Price is concerned. We think a complete answer to this is that the mortgage itself showed that it provided for future advances, and provided that the future advances should be secured by the mortgage. And Williams, the assignee, having all the rights that Cross had, he simply took the place of Cross in the mortgage, and advances by him were secured by the mortgage just as advances made by Cross would have been secured by the mortgage.
“Now, as to the $1,500 advanced by the assignee of the mortgage to the bankrupt on the 4th of December, 1920, there is nothing in the evidence to indicate that this money was advanced under the cover of this mortgage for the purpose of preferring any creditors over another. Of course, a mortgage cannot be used as a vehicle 'by which to prefer a creditor. Money loaned by mortgagee, who knows that the money is to be used for the purpose of preferring creditors, would not be protected as a mortgage lien claim under the Bankruptcy Act. However, with reference to the $1,500, it is not disclosed that there was any intention on the part of the bankrupt or the party loaning the money to use the proceeds of this loan for the purpose of creating a preference. The most that is said about the uses of the money was. that it was to pay bank interest for the purpose of keeping the Great Lakes Lumber Company in condition to go along as a going concern, and this would not be evidence from which to find that the mortgage was to be used as a vehicle for creating a preference. We are of the opinion that the referee was- right in holding that this sum of $1,500 was an advancement under the mortgage for a present consideration, and therefore valid. The except-ants in this case urge that the clause in relation to future advances contained in the mortgage was a personal one to the mortgagee, and that it did not apply to the assignees of the mortgage. The mortgage, however, ran to the mortgagees, their attorneys, executors, administrators, and assigns, and we think the assignees of the mortgage are within the provision with reference to advancement and are entitled to protection for advances which they made under the mortgage.” In Re Great Lakes Lumber Co., 8 Fed. (2d) 96.
The mortgage in the instant case ran to the assignees, and therefore the assignees of the mortgage are within the provisions with reference to advancement, and are entitled to protection for advances which they made under the mortgage. Transactions whereby assignees of mortgages make future advances are frequently made. It is a general custom in this country for planters and farmers and others to execute notes and mortgages for money and future advances. If the mortgagee should .sell out his business and assign the notes, and mortgages, the assignees could continue to carry out the contract, make future advances, and be secured by the mortgage exactly as the original mortgagee would be.
It has been repeatedly held that an assignee takes a note -secured by mortgage exempt from any equities residing in a third person to which it might be subject in the hands of the assignor. 41 C. J. 695; Jones on Mortgages, vol. 2, page 454-5.
There is no contention that the mortgage would not have secured any debt due from Bland to Cross or any advances made by Cross, and the weight of authority is to the effect that the assignee occupies the samé position with reference to the mortgage and with reference to future advances that the assignor did; and that a third person cannot defeat the right of either the mortgagor or his assignee by purchasing the mortgaged property. The mortgagor, of course, has the right to sell or convey the mortgaged property. But by doing so he not only does not relieve himself from liability, but he does not affect the security or the mortgagee’s right to foreclosure.
A mortgage on land is not extinguished nor its lien divested by the sale of the premises to the purchaser who has notice of the mortgage, as Price did in this case. But whatever title he gets is subject to the mortgage, and is no better and no stronger than that of his vendor. 41 C. J. 712.
The purchaser of land acquires the title, rights and equities of his grantor, and no more. And in the instant case'Price is in no better position than Bland himself would have been. The same rule that binds Bland binds his privies, his purchasers.
Appellant calls attention to numerous authorities holding, in effect, that each instrument must be interpreted according to its particular language, and that, when a mortgage is given to secure future advances, it means advances furnished within a certain time. But there is no limitation in the mortgage in this case. It provides that the mortgage shall be security for the payment of any other liability or liabilities of the grantor, already or hereafter contracted, until the satisfaction of the mortgage. Construing this part of the mortgage according to the rules suggested or announced in the authorities cited, the mortgage necessarily, by its very language, includes liabilities already created or any that may be created hereafter, until the satisfaction of the mortgage. And of course there is no contention that the mortgage was satisfied.
Our conclusion is that the assignee has all the rights and equities that the mortgagee did, and that the mortgage secures future advances made by the assignee the same as if made by the original mortgagee, and that Price occupies no better position than his vendee, Bland.
The decree of the chancery court is therefore affirmed.
Smith and Kirby, JJ., dissent. | [
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Mehaffy, J.
The appellee, a citizen of Independence County, Arkansas, was, on the first day of July, 1927, working as a laborer for the appellant, Newark Gravel Company, near the town of Newark, Independence County. The appellee and another employee of the company were carrying railroad ties, and the method of carrying them was for one laborer to take one end on his shoulder and the other laborer the other end, and, when they reached the place where they were to put the tie, it was thrown from the shoulder; the person behind would give the signal, and both parties would throw the tie at the same time.
The undisputed proof shows that it was customary for the man behind to give the signal before the tie was thrown, and the undisputed proof also shows that the warning or signal was not given at the time of appellee’s injury. It was alleged that the fellow-servant of Barber, whose duty it was - at the time to give the warning or signal, failed to give any signal, and, without any notice to the appellee, threw his end of the tie, and it is also alleged that he threw it with more force than was necessary. One end of the tie rebounded and caught appel-lee’s left foot and crushed it, breaking two bones. Ap-pellee suffered great pain, was unable to do any work for more than two months, and prior to the injury he was a strong, able-bodied -man, twenty-seven years of age, making $2 a day. He asked for damages in the sum of $5,000.
The defendant answered, denying each allegation of negligence, and alleged that the appellee voluntarily exposed himself to the danger, of which he had knowledge, and that it was in consequence of the dangers, which were open and obvious and to which appellee exposed himself, that the injury occurred. The answer also alleged that appellee was guilty of contributory negligence.
The case was tried, and a verdict returned by the jury for the sum of $2,000. Motion for new trial was filed, which the court overruled, exceptions were saved, and this appeal is prosecuted to reverse said judgment.
The appellee testified that he and Bob Austin were carrying railroad ties together, about 30 or 40 yards, over to the railroad; they were carrying them from where they were piled- to the track. Appellee was in front, and Austin was in the rear. They walked up, and Austin threw his end before they got ready. Appel-lee had the tie on his left shoulder; Austin was looking right at him; it was customary to say “Go,” and get ready. It was always his custom to give this signal. The man in the rear is supposed to give it. Austin threw his end too far and with too much force; threw it on top of the left-hand rail. The outside corner of the tie struck the top of the rail and caused it to roll back on appel-lee’s foot. Austin did this without notice, and contrary to custom. It caught appellee’s foot between the rail and the tie, and mashed it; broke the bone, and caused him to suffer great pain. Appellee did not see the tie when it fell; it was behind him. He felt the tie fall, and tried to get out of the way, but failed.
Appellee testified about his injuries, and about treatment by the physicians, and about his suffering. The physicians also testified about the injury to his foot, and it was still giving him pain at the time of the trial. The injury is permanent.
Austin testified, in substance, that he was employed by the Newark Gravel Company at the time Cecil Barber got hurt; remembered the accident, and that they had been working as partners, carrying cross-ties some 25 or 30 yards. When they picked up the ties they carried them about 25 or 30 yards to the place to put them down, and stopped, and then unloaded the tie; that he was in the rear, following Barber; that at the time of the accident both of them were straddle of the rail, with the crosstie on their shoulders. They unloaded it, threw it against the other rail, and his end of the tie hit first, and rebounded and caught Barber’s foot. They had. reached the point where they wanted to throw the tie, and had stopped to unload it. Witness did not know whether any word was given to unload or not. They were both supposed to throw it. Witness’ end hit about twelve inches before Barber’s. He also testified about the injury. He said he was behind Barber, and Barber could not see him. He did not say whether he gave the word to unload or not. Does not remember, but he said they generally gave a signal, but sometimes did not. The man behind would give the signal, and witness was the man behind in this case. He also testified that the fact that they had both stopped did not necessarily imply that it was time to throw the tie. They generally gave a signal, but this time he did not remember. It was the custom to give it. He also said that he had -never thrown his end of the tie' too far before. That they failed to throw it at the right place, and this was the only time witness had ever failed. Witness is not positive that he gave the signal, and, if he did not give notice, there was no other way that Barber would know when to throw. He further said: “If Cecil Barber is positive that the notice was not given, I would not attempt to deny that. ’ ’
It would serve no useful purpose to set out all the testimony; the appellee and Austin are the only persons who know how the accident occurred, and there is no conflict in their testimony, except that Austin says ho does not remember whether he gave the signal. Barber says Austin threw the tie with too much force, threw it too far, and Austin says that this is the first time that he had thrown the tie too far.
The appellant urges a reversal of the case, first, on the ground that the injury was due to inevitable accident, and calls attention to authorities holding that no recovery can be had for a mere accident. It is useless to call attention to or review authorities on this question, because this court has repeatedly held that no one is liable for a mere accident. Moreover, the jury were instructed fully on the question of negligence, and were told that appel-lee could not recover unless the injury was caused by the negligence of Austin, and that this negligence must be the proximate cause of the injury.
Appellant is correct in its contention that inevitable accident does not mean absolutely inevitable, but it means not avoidable by any such precaution as a reasonable man doing such an act then and there could be expected to take. In other words, if Austin was guilty of no neglig-ence, and the thing happened, it would be an accident and be inevitable, although, looking’ at it after it happened, it might be easy to see how it could have been avoided. If Austin was guilty of negligence that caused the injury, it was not an accident, and appellant is liable. If Austin had been guilty of no negligence, then it would have been an inevitable accident, and there could have been no recovery. These questions, however, were sub mitted to the jury under proper instructions, and the jury’s verdict is against appellant on this issue. Moreover, there is no evidence in the record tending to show an unavoidable accident. The undisputed proof shows that it was customary for the rear man to give a signal before he threw the tie, and in this instance, at the time Barber was injured, the signal was not given. Barber testifies that it was not, and Austin says he does not know. Both of them, however, testify that it was customary to give the signal.
It is next contended by the appellant that the court erred in refusing to direct a verdict for the defendant, and attention is called to a number of .authorities, hut we do not think the facts in this case bring it within the rule announced by any of the authorities referred to. If it were the custom to give a signal before throwing the tie, and this signal was not given, and Austin threw his end of the tie, and the injury resulted because of the failure to give the warning, the defendant would be liable. These questions were properly submitted to the jury by the court.
In speaking of an instruction given in a case, this court said recently:
“If appellant regarded the instruction as so indefinite as not to furnish a guide to the jury as to what would be negligence on account of it not stating that the failure of plaintiff’s helpers to wait for the signal to move the tie, and moving it without the giving of said signal, it should have pointed this out with a specific objection.” St. L. S. F. R. Co. v. Miller, 173 Ark. 597, 292 S. W. 986.
The instruction complained of by appellant in that case told the jury that it was the duty of other employees to wait until plaintiff had put his pick into the tie that was to be put under the rails of said track and prepared himself to pull said tie;-that plaintiff’s said helpers failed to wait until plaintiff had prepared himself for pulling said tie, but immediately pulled said tie after the plaintiff had stuck his pick into it, and thereby caused plaintiff’s foot to be injured; that plaintiff’s said helpers thereby failed to exercise ordinary care for plaintiff’s safety, and that plaintiff had not assumed the risk.
In the instant case the fellow-servant threw his end of the tie without giving any warning, and, when the ap-pellee felt the tie moving, then he pushed it from his shoulder. It was the duty of Austin to give the signal, and he should not have thrown his end of the tie without giving the customary signal, and, if he did this, threw his end of the tie without, giving any signal, he was guilty of negligence, and if this negligence was the proximate cause of the injury, appellee was entitled to recover.
The court in the above case held that the facts were sufficient to take the case to the jury; that if plaintiff’s helpers failed to wait until plaintiff had prepared himself for pulling the tie, but pulled without giving any warning, negligence in this respect was a question for the jury, just as it is in the instant case if Austin threw the tie without giving the customary warning.
This court also said in a recent case:
“It was said that Smith was justified in acting upon the belief that his fellow-servant would do his part of the work in the ordinary way and would walk down to the end of the timber nearer the ground before stepping off. * * * So in the case at bar the jury was warranted in finding that, in the exercise of due care, Narra-more should have warned Johnson before he let go of his end of the carrying iron. The five men were working under a foreman, and were directed by him to carry an iron pipe about the same depth. The pipe, weighing between four and five hundred pounds, was lying diagonally across a small ditch two and a half or three feet wide and of about the same depth. The method of wurk was for two men to carry the front end by placing a carrying iron under it, and two others were to carry the rear end in a similar way. * * * The men were working together, and each had a right to expect that his fellow-workmen would exercise due care in the premises for the safp+T' +he others.” Texas Pipe Line Co. v. John son, 169 Ark. 235, 275 S. W. 329; St. L. S. W. Ry. Co. v. Smith, 102 Ark. 565, 145 S. W. 218.
It is next contended that the court erred in giving in charge to the jury plaintiff’s requested instructions. We. do not deem it necessary to set out the instructions. We have reached the conclusion that the court fully instructed the jury, and that the instructions, taken together, constituted a correct guide to the jury.
There is substantial evidence to support the verdict, and the judgment is therefore affirmed. | [
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McHaney, J.
On July 13, 1925, John G. Bourland, now deceased, applied to appellant for two policies of life insurance for $5,000 each, carrying an annual premium of $217.99 each. These policies were issued, and dated October 3, 1925, at the request of the insured, who desired the premium® to become due on that date. In order to cover the risk between July 13 and October 3, appellant issued, to be attached to each policy, its “preliminary term insurance rider,” reading as follows:
“In consideration of the request contained in the application for this policy, and the payment of $2.77 (two dollars and 77/100), same being the preliminary term rate for three and one-third months ’ yearly renewable term life insurance, the annual premium date of said policy is hereby changed from the 13th day of July, 1925, being the date of the application for this policy, to the 3rd day of October, and annually thereafter until maturity, and said policy No. 2070 is by this preliminary term insurance rider now placed in effect for $1,000. ’ ’
A like rider was attacked to policy 2071, being the other policy issued at the time.- The insured executed and delivered to the agent of appellant his notes for the total amount of the premium on both policies and the preliminary term insurance, due October 1, which notes were forwarded to appellant by the agent. Prior to the due date of these notes, on September 28, 1925, the insured wrote appellant, -advising it of his inability to pay the notes when due, requesting that the notes be returned to the agent, and that he be permitted to pay the premium in quarterly installments “of $57.77 on each policy, together with the $5.54 additional premium to October 3, on the term rate.” His request was complied with by appellant, and on the 3d day -of October, 1925, the insured executed and delivered to appellant the following written request as to each policy: “I hereby request that the annual premium of $217.99 be changed to a quarterly premium -of $57.77, to be paid in advance on October 3, January 3, April 3, and July 3 of each policy year. The payment of any installment shall not maintain the policy in force beyond the time the next installment becomes due. This request, when accepted by the company, is to be filed with the original application, and to continue in force until changed by agreement.”
Shortly thereafter the insured paid the quarterly premium on each policy due October 3, in the sum of $57.77 each, and the preliminary term premium on both policies, amounting to $5.54, which paid the premiums to January 3,19‘26. Under date of November 3, when these policies had “been in force just one month today” as stated by the insured in his letter to the company, he requested appellant to cancel one of the policies and apply the premium already paid on it to the payment of the quarterly premium thereafter to become due on the other, which appellant did by canceling policy 2071 and giving him credit on policy 2070 for the full quarter’s premium, although 2071 had been in force for one month. The effect of this was to pay the premium on policy 2070 until April 3. On that date the next quarterly premium became due on policy 2070, and although the insured was frequently notified regarding the due date, and thereafter, during the thirty' da3rs of grace allowed in which to pay the premium, due April 3, he was several times warned that, if he failed to pay the premium by May 3, the policy would' lapse, he neglected to pay same, and died on May 17.
Appellees, who are the beneficiaries in this policy, demanded payment of the $1,000 due under the policy if death occurred during the first year, which was refused, and this suit followed. The case was tried to the court sitting as a jury, and it found that, under the terms of the policy, “there are conflicting statements as to the length of time the premium on the policy had been paid, one statement saying the amount paid was the premium for three and a third months, the other saying that it was the premium to the 3d day of October, 1925.” On that account the court held that the policy must be construed most strongly against appellant and in favor of the insured, and that the effect of the clause in the preliminary term insurance rider, that the $2.77 paid, “being the preliminary term rate for three and one-third months,” carried the preliminary term insurance until October 23, and that the quarterly premium date® began at that time, which would have made the premium paid carry the policy to April 23, and that the thirty days of grace allowed to pay the April premium would keep the policy in force beyond the date of the death of the insured. Accordingly judgment was rendered against appellant for $1,000, penalties, and attorney’s fee.
Clearly the court erred in its findings of fact and conclusions of law. Appellant requested the court to declare that, under the facts in this case, the policy sued on lapsed on the 3d day of May, 1926, for failure to pay the premium due thereon on the 3d day of April, and that, under the facts and the law, there could be no recovery. The court should have so found. It is true that con tracts of insurance -will be construed most strictly against the insurer, and that, where there are conflicting provisions in the policy, the one most favorable to the insured will be given effect. Here, however, both parties to the contract understood that the preliminary term insurance from July 13 to October 3 was for two and two-thirds months, and until October 3 only, at which time the regular premium on the policy became due. The secretary of the company testified that the $2.77 mentioned in the rider was the preliminary term rate for two and two-thirds months instead of three and one-third months, as mentioned in the rider, and that the mention of three and one-third months in the rider was a mere error in writing the rider. The rider itself says that the preliminary term insurance is only paid from the 13th day of July to the 3d day of October, 1925, and the letter of the insured, heretofore quoted, dated September 28, 1925, to the company, specifically stated that the $5.54, being the amount due on both policies for the preliminary term insurance, paid the preliminary term insurance to October 3 only. So it will be seen that both parties have given the same construction to the contract.
It is clearly manifest that both parties intended that the preliminary term, insurance began on July 13 and terminated October 3, and it is a well established principle of law that, in the interpretation or construction of contracts, the construction the parties themselves have placed on the contract is entitled to great weight, and will generally be adopted by the courts in giving effect to its provisions. This is especially true in case of ambiguity in the written contract. Two of our recent cases to this effect are: Temple Cotton Oil Co. v. Southern Cotton Oil Co., 176 Ark. 601, 3 S. W. (2d) 673, and Webster v. Telle, 176 Ark. 1149, 6 S. W. (2d) 28.
The insured in his lifetime never, at any time, questioned the correctness of the quarterly premium dates', of which he was frequently notified by appellant, but, on the contrary, himself affirmatively stated that the amount be paid on the preliminary term insurance carried it only to October 3. The policy having lapsed on May 3 for failure to pay the premium due April 3, there was no liability, and there can be no recovery.
The judgment will be accordingly reversed, and the. case dismissed. | [
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Humphreys, J.
This is an appeal prayed by appellants to the Supreme Court before the clerk thereof and which was granted by the clerk on July 10, 1940, from a judgment rendered against them in favor of appellee in the 2nd division of the Union county circuit court dismissing the intervention of George W. Davis for the property involved and entering judgment in favor of appellee against appellant, Tom Davis, in the sum of $821.62 and allowing a. credit thereon for the value of the property seized in the proceeding under the Sales Act (Pope’s Digest, §§ 11422-11425, inclusive) it having-been turned over to appellee after it was attached and at the value of $571.50 without in any way prejudicing the right of the litigants and- adjudging that appellee have judgment for a balance of $252.01 and adjudging that the garnishee, Henry Carroll, was indebted to appellant, Tom Davis, in the sum of $250 and ordered him to pay same into the registry of the court, which was done.
This judgment resulted from a trial of the cause upon the issues joined in the pleadings, the evidence introduced before a jury and the instructions given to the jury by the court.
No time was requested for presenting and filing a bill of exceptions and none seems to have been filed, as under the prayer for appeal nothing except the pleadings, exhibits and stipulation as to the value of the property seized under the proceedings has been brought up to this court.
According to the complaint the suit was brought by appellee against appellant, Tom Davis, to recover the unpaid purchase price of a refrigeration unit installed in his place of business, it being alleged that he had refused payment .and otherwise breached his contract.
Appellant, Tom Davis, 'filed an answer denying that he had breached the contract and among other things alleged that the refrigeration unit purchased by him was defective and would not and did not perform the services intended by the parties to the contract.
The main issue in the case was whether appellant, Tom Davis, breached the contract or whether appellee breached same and whether the contract price should be reduced on account of the defective refrigeration unit.
The jury seems to have reached the conclusion that appellant, Tom Davis, breached the contract, and that the machinery or unit sold to him was not defective.
No contention is made that the evidence introduced in the case was not sufficient to support the verdict and consequent judgment under the instructions as to the law applicable to the issues as given by the court.
It seems that the court prepared and delivered to the jury forms of verdicts and appellant, George W. Davis, contends that the issues as to his rights were not considered by the jury because the form of verdict furnished the jury by the court involving the issues presented by his intervention was returned to the court unsigned. The form of the verdict was as follows: “We, the jury, find for the intervener,- George W. Davis, against the garnishee in the sum of two hundred and fifty dollars ($250).”
The refusal of the jury to sign this verdict was an expression on its part that the intervener was not entitled to recover the funds held by the garnishee and which he claimed belonged to him.
The verdict which the 'jury signed was as follows: “We, the jury, find for the plaintiff, (appellee) against the defendant (appellant, Tom Davis), in the sum of eight hundred and twenty-one dollars and sixty-two cents ($821.62), and against the garnishee, Henry Carroll, in the sum of two hundred and fifty dollars, ($250).”
Since the issnes involved were submitted to a jury under instructions of the court, and since no bill of exceptions was filed, the rule is that the court will presume on appeal that the evidence was legally sufficient to support the verdict, and that the case was submitted on correct instructions. Abrams v. Hoff, 174 Ark. 144, 294 S. W. 389; Hampton v. Dodd, 184 Ark. 287, 42 S. W. 2d 224; Young v. Pumphrey, 191 Ark. 98, 83 S. W. 2d 84; Parrish v. Parrish, 191 Ark. 443, 86 S. W. 2d 557.
In the absence of a bill of exceptions this court is unable to determine the facts upon which the suit was based and finally submitted to the jury, or to determine whether it was submitted under incorrect instructions, so we are driven to indulge the presumption that there was sufficient evidence to support the verdict, and that the jury was correctly instructed as to the law applicable to the facts reflected by the evidence introduced in the case.
No error appearing, the judgment is affirmed. | [
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Mehaffy, J.
On October 19, 1937, the appellees, John E. Short and Mrs. Marie Short, entered into a contract with C. O. Farnsworth and Grace Farnsworth to purchase 40 acres of land in Sebastian county, Arkansas, for the sum of $500 and paid $75 in' cash and executed their promissory note on the same date to C. O. Farns-worth and Grace Farnsworth in the sum of $425 and agreed to pay $25 on or before tbe 20th of November, 1937, and the balance of $400 was to be paid in monthly installments of $10 each on the 20th of each and every month thereafter until the note was paid, with interest at the rate of 6 per cent, per annum from then until paid.. This note was delivered to C. O. Farnsworth and Grace Farnsworth at the same time it was executed. The parties entered into a written contract for the sale of the land and C. G. Farnsworth and Grace Farnsworth executed a warranty deed to John E. Short and Marie Short, attached said deed to the contract of sale, and said deed was to be delivered to Short upon the payment of the note given for the purchase price. O. O. Farnsworth hypothecated this note to the Bank of Waldron and left with the bank the written contract of sale and the warranty deed.
On October 30, 1937, the appellant, I. J. Friedman, bought the note. Payments were made on said note for about a year, at which time appellees, the Farnsworths, defaulted in the payments and appellant brought suit in the Sebastian circuit court on said note, which at that time amounted to $356 and interest.
Answer and cross-complaint were filed by J. E. Short and Marie Short in which it was alleged that they did not owe anything on the note and that they had paid Friedman, the appellant, $100.50 and that Farnsworth did not have any title to the 40-acre tract of land, and asked judgment against appellant in the sum of $100.50.
A jury was waived and the cause was tried before the court sitting as a jury. After hearing the evidence, the court dismissed appellant’s complaint and rendered judgment against appellant for $100.50.
The evidence conclusively shows that the appellees, Farnsworth, did not have any title to the land or any claim whatever to said land.
The following note was attached to the complaint:
“Fort Smith, Arkansas,
‘ * October 19,1937.
“For value received, we promise to pay to C. O. Farnsworth and Grace Farnsworth, or order, the sum of four hundred twenty-five ($425.00) dollars as follows:
“Twenty-five ($25.00) dollars on or before the 20th day of November, 1987, and the balance of four bun--dred ($400.00) dollars at the rate of ten ($10.00) dollars per month payable on Or before the 20th day of each month thereafter until the full balance has been paid with interest from date at the rate of six (6%) per cent, per annum, interest payable semi-annually.
“John E. Short
“Marie Short.
“Reverse side:
“ C. O. Farnsworth
‘ ‘ Grace Farnsworth. ’ ’
Appellant filed a demurrer to the answer and cross-complaint of appellees, Short, which demurrer was by the court overruled and exceptions saved. Appellees thereupon filed a motion to dismiss.
Appellant filed a reply to appellees’ answer and cross-complaint denying each and every material allegation in the complaint.
The appellant testified that at the time he bought the note he did not know there was any defense to it: that he sent the Bank of Waldron a check for $100 before he got the’ note; that the bank held the note as collateral; the note was in the Bank of Waldron when the trade was made; the bank sent the note and Farnsworth brought appellant the contract and deed; he did not read the contract; did not read anything; the Bank of Waldron had taken the note and he figured that if it was good enough for the bank it was good enough for him; he has the contract; the Bank of Waldron had the abstract and deed at the time appellant wrote a letter to Short. Appellant here introduced the deed in evidence. He testified that at the time he did not know Farnsworth did not have title to the property; had not the least idea where the property was, or whether there was any title or not. When Short defaulted in payment, appellant asked him why he quit paying and Short said Farnsworth deeded another 40 acres to him in Madison county. Appellant wrote and received information that there was a deed from Farnsworth to Short for 40 acres in Madison county. Copy of a letter appellant received from Short was here introduced, and reads as follows:
“Fort Smith, Arkansas, •
“October 6, 1938.
“Mr. Friedman
“Dear Sir:
“I wrote you yesterday but misplaced the letter, was up to your office Monday, but it was too late and no one was there.
“I am fixing up the house on the farm this week and have it rented, will turn over the rent to you Monday or Tuesday of next week, and then will be able to pick up that check next Friday besides. I had it this week but had to put it out on vaccination of my stock for sleeping sickness.
“You may look for me sure the 11th Oct.
“I remain
“Yours respt.,
“John E. Short
“B. F. D. No. 2
“Mulberry, Arkansas.”
The undisputed evidence shows that the Farnsworths had no title to the property; that the appellant knew about the deed and contract, and by the slightest investigation could have ascertained the facts. A Mr. Ashley, in Oklahoma City, owned the land, and the appellee, Short, testified that the land in Madison county was worth about $50, and that Farnsworth had no right to sell the land in Sebastian county.
The appellant testified that at the time he purchased the note it was for the purchase price of property in Sebastian county, and a deed was to be delivered to Short; knew there was a note and deed in escrow, and knew that Farnsworth had executed a deed for the property and that the 'Bank of Waldron was holding it; he paid $200 for the $425 note and he said that the balance was to apply to repay money that he had sent to the bank and some past" due notes that Farnsworth owed to apply as a credit.
J. E. Ashley, the owner of the land, testified that he contracted to sell the land to Marie Kensloe and gave a contract for a deed to her and that she forfeited the contract. Marie Kensloe was Farnsworth’s secretary.
. There was considerable other testimony all tending to show that the Farnsworths never had any title to the property; that Friedman knew about the contract and deed and that he purchased the note for less than half of its face value.
Section 10213 of Pope’s Digest reads as follows: “The title of a person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as to amount to fraud.”
Section 10214 reads as follows: “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom ■ it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking- the instrument amounted to bad faith.”
However, § 10216 provides that in the hands of any holder, other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter.
Whether the appellant was a holder in due course was a question for the lower court.
In the case of Cunningham v. Toye, 97 Ark. 537, 134 S. W. 962, this court said: “The only question neces-" sary to decide is whether or not appellant was an innocent purchaser for value. Appellant testified that he purchased the notes in the ordinary course of business, giving in payment therefor an automobile worth five or six hundred dollars, that at the date of the purchase lie knew nothing about Dunn’s outstanding notes for the purchase of the lot from Ratterree. He further testified that Dunn offered to sell him the lot before he sold same to Mrs. Toye, but that he wanted something on which he could realize immediately. He considered the automobile as good as the lot. Dunn, on the other hand, testified that he told appellant at the time the notes were assigned to him that he still owed his notes on the purchase price. He further testified that the automobile that he received in payment for the notes was worth from $125 to $200; that he could not sell it for $200. It was merely a question of fact as to whether appellant purchased the notes from Dunn without notice of the equities between Dunn and appellee.” See, also, 4 Amer. and Eng. Encyc. of Law, 304, 306; Bank of Commerce of Summerville v. Knowles, 32 Ga. App. 800, 124 S. E. 910.
One is -not regarded as an innocent purchaser if the circumstances are sufficient to suggest inquiry which would lead to a knowledge of the fact that the note or obligation was defective. This knowledge may arise from any irregularity in the paper or in its chain of title, or from the fact that the -maker only has put the note in circulation and for his benefit. Simmons Nat. Bank v. Dilley Foundry Co., 95 Ark. 368, 130 S. W. 162.
In this case it was simply a question of fact whether the appellant was an innocent purchaser. The court had the witnesses before him, had an opportunity to observe their demeanor on the stand and their manner of testifying, and the trial court’s finding under such circumstances is as conclusive as the verdict of a jury. There seems to be substantial evidence to support the finding that the appellant was not an innocent purchaser. The purchase of the note was made 11 days after it was executed. It was alleged to be for the purchase price of land in Sebastian county. Appellant knew there was a deed and contract and he also knew that he was getting the note at about half its face value. While the purchase of a note for less than its face value would not show conclusively that there was some defect in the note or contract, yet it is a circumstance to be considered with all the evidence in determining whether the purchaser of the note is an innocent purchaser.
After a careful examination of the entire record, we are of opinion that there was substantial evidence to support the finding’ of the lower court.
The judgment is affirmed. | [
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McHaney, J.
Appellant owns and operates a motion picture theatre in tbe city of Hope. Appellee brought this action against it to recover damages for personal injuries slie alleges slie sustained from a fall in leaving the balcony of the theatre, during a performance she attended as a patron on November 19, 1939. The negligence laid and relied on is that appellant failed to have the balcony of its theatre properly lighted.- The answer was a general denial, pleas of her own negligence as the sole cause of her injuries, if any, assumption of risk and unavoidable accident.
Trial resulted in a verdict and judgment for $700 against appellant, and this appeal followed.
It is appellant’s contention that the court erred in refusing to direct a verdict for it on its request so to do. We agree with this contention, on the ground there is no substantial evidence to support the verdict and judgment.
There is no contention that the balcony of the theatre was improperly or negligently constructed, but only that it was improperly lighted. Appellee, a resident of Atlanta, Texas, but then employed as a waitress in a cafe in Hope, was accompanied to the theatre by her friend, Mrs. Mitchell, also of Atlanta, Texas, a temporary visitor in Hope, and they are the only witnesses in the case who profess to know anything about the accident. Mrs. Mitchell bought two tickets for the balcony at about 3:15 p. m. They entered the balcony, the aisle of which runs up and down and the seats crosswise. The seats are elevated from the front to the rear and the aisle has steps leading up to the back row of seats, and to the projection room which is just behind the back row of seats. They selected the end seats on the back row because they wished to avoid crawling over others on the lower seats. Evidently it was light enough when they entered, not only for them to find these vacant seats on the aisle end of the back row, but to see that the other end seats were occupied. The undisputed evidence is that the theatre balcony was equipped with twelve shaded bracket wall lights and eight or more owl or aisle lights attached to the seats along the aisle near the floor. In addition one or more large chandeliers hang in the center of the building and there are ten windows in the back of the balcony, through which natural daylight pene trates, thereby letting some light enter the balcony, and all over the ceiling of the theatre. An attempt was made to prove that all these wall bracket lights and the aisle lights were not burning. On this question appellee testified that she knew a picture must be shown in semidarkness ; that it is usually dark when you go in off the street, but in a few minutes one becomes accustomed to the dark condition. “We went up feeling our way. We didn’t sit in the front seats because they were crowded, the end seats, and we didn’t.want to fall over anyone and she led the way up to the top seat.” She said: “It was very dark and we felt our way.” She was asked and answered questions on cross-examination as follows: “Q. Were there any lights in the balcony? A. I never noticed when we went in. Q. Did you see the lights on the wall on both sides? A. I never noticed those. Q. You don’t know and you tell the jury you don’t know whether there were any lights in the aisle or not? A. No, I don’t— Q. And you never noticed whether there were any lights at all in the balcony? A. No.” She said she was sitting on the seat next to the aisle and did not notice whether there were any lights there or not. Mrs. Mitchell, appellee’s companion and witness, testified on direct examination that there were no lights burning in the balcony on the afternoon of the accident, . although she said there were light facilities on the walls and on the seats in the aisle. On cross-examination, however, when asked if the wall lights were on, she answered: “Not as I know of. I did not look.” When asked what caused appellee to fall, she said: “The best of my knowledge, it was the step-off — that’s all I can say.”
Now, the undisputed testimony of Young, the manager of the theatre, is that the aisle lights were burning at 12:30 or 1:00 p. m. when he inspected the balcony and again during the afternoon. Allen, the projectionist, who operated the picture machine said the owl lights were burning at 1:45 p. m. when the show started and at 5:30 or 6:00 p. m. when it was over. Mrs. Mitchell says they were not 'burning when she arrived at 3:15 and when she left during the second performance. We think this evidence insufficient to bring home notice, either actual or constructive, to appellant that the aisle lights were out. It was sufficient to make a jury question as to whether the lights along the aisle were burning during the time appellee was in the show, but such evidence was not sufficient to raise an issue of negligence for submission to the jury. The mere fact that the aisle lights were out temporarily does not establish negligence. It is undisputed that light-fixtures were on the walls and in the aisle, and that they were burning shortly before appellee arrived and shortly after she left. To justify a finding of negligence due to the absence of burning lights, the proof must show actual knowledge on the part of appellant, or that such condition existed for such a length of time that it should have known of it, and there is no such proof in this case, but to the contrary.
Interesting cases on the liability of moving picture theatre owners for injuries to patrons caused by alleged insufficient light are cited in the briefs. Osborne v. Loewe’s Houston Co. (Tex. Civ. App.), 120 S. W. 2d 947; Peek v. Yale Amusement Co. (Mo. Sup.), 195 S. W. 1033; Falk v. Stanley Fabian Corporation, 115 N. J. L. 141, 178 Atl. 740; Magruder v. Columbia Amusement Co., 218 Ky. 761, 292 S. W. 341. We think it unnecessary to quote from or comment on these .cases further than to say that all, except the last, is against the appellee.
■ We think the principle many times stated, but recently reannounced in Kroger Gro. & Baking Co. v. Dempsey, ante, p. 71, 143 S. W. 2d 564, is controlling here, and that is that before appellant can be held for failure of the aisle lights to be burning when appellee left the theatre, she must show actual knowledge of appellant of such condition or that the condition existed for such a length of time as that knowledge will be presumed. Neither of which is shown. Appellee refused to testify that the lights, both on the wall and in the aisle, were not burning, and her witness when pressed about the wall lights, as to whether they were on, answered: “Not as I know of. I did not look.”
The court, therefore, erred -in refusing to direct a verdict for appellant. The judgment will he reversed, and, as the cause appears to have been fully developed, it will be dismissed. | [
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Humphreys, J.
This suit was brought in the chancery court of Benton county by appellant against appel-lee to foreclose a lien for delinquent taxes for the years 1931, 1933, 1934 and 1935, and a penalty for failure to pay same as they became due in the total sum of $616, assessed as benefits and penalty against lots 2, 3, 6,'and north half of lot 7 in block 23 in B. F. Sikes Addition to Rogers, Arkansas, which were owned by appellee and included in Paving Improvement District No. 13, Rogers, Arkansas, at the time said district was organized.
The benefits assessed against said lots on account of the improvements to be made were $140 a year and the statutory penalty for failure to pay same was 10 per cent.
The material facts alleged in the complaint are that Paving Improvement District No. 13 of the city of Rogers, Arkansas, was duly and legally organized pursuant to the laws of Arkansas; that A. B. Stroud, J. M. Henderson, and Warner St. John are the duly appointed, qualified and acting members of the Board of Commissioners of said district; that there were assessments made against the property in said district for the purpose of constructing the improvements, and that a tax was duly levied on said lands, and the property embraced in the district, which constituted a lien therefor; that the annual installments for the years 1931, 1933, 1934 and 1935.on the lots described above belonging to Mrs. Irene Freeman was the sum of $140 for each year is delinquent and has not been paid, and that said taxes have been returned as delinquent; that Mrs. Irene Freeman, the appellee, is the owner of the lots in question, and that she has not paid the annual installments thereon, and that the amount of the assessed installments, together with the penalty for the aforesaid four years amounts to $616.
A demurrer was filed to the complaint which is as follows: “Comes now Irene Freeman and demurs to the complaint of the plaintiff filed herein and for grounds states:
“That the complaint does not state facts sufficient to constitute a cause of action against this defendant;
“That the property alleged to have been owned by this defendant is not legally or correctly described in said complaint;
“And that said complaint shows upon its face that benefits against said property were not assessed in accordance with the laws of the state of Arkansas.”
The cause was heard by the Benton chancery court on April 19,1940, and judgment was rendered sustaining the demurrer, and the plaintiff refused to plead further, whereupon the complaint was dismissed by the court, to which dismissal appellant excepted and prayed an appeal to this court, which was granted. ■
The demurrer admits all the material allegations in the complaint and raises the sole question of whether an assessment of benefits in a paving “district against several city lots en masse is void. The complaint on its face shows that all the lots belong to appellee, and that the benefits assessed against them was $140 a year, which she failed to pay for the years 1931, 1933, 1934, and 1935.
Appellant contends that it is not necessary to assess each lot separately in an' improvement district unless the ownership is separate and that while the statute under which they were assessed en masse requires each lot to be assessed, it does not require a separate assessment of each lot where all the lots assessed en masse belong to the same owner. On the other hand appellee contends that under § 7293 of Pope’s Digest an assessment of benefits is void unless assessed against each lot regardless of who may own same. In other words that if an individual owns several lots they can not be treated as- one lot, and the benefits assessed against them as one lot.
Section 7293 of Pope’s Digest is as follows: “Each of said assessors shall, before entering upon the discharge of his duties, take oath that he will well and truly assess, to the best of his knowledge and ability, the value of all the benefits to be received by each landowner by reason of the proposed improvements as affecting each of said lots, blocks, or parcels of land or railroad tracks and right-of-way within said district, and that they shall at once proceed to inscribe in a book to be used for that purpose the description of each of said lots, blocks, or parcels of land and railroad tracks and right-of-way and shall assess the value of the benefit to accrue to each of said lots, blocks or parcels of land and railroad tracks and right-of-way by reason of such improvement, which assessment of said benefits they shall enter upon said book opposite the description thereof; and they shall then subscribe said assessment and deposit it in the office of the recorder or city clerk of such town or city, where it shall be kept and preserved as a public record. Provided, said assessment may be annually readjusted according to additional improvements placed upon the lands, railroad tracks and right-of-way when a succession of collections is necessary to pay for the improvements. ’ ’
We think a fair construction of the act is that where one person owns several lots, blocks or parcels of land in an improvement district the benefits to them may be assessed together. It certainly was not the intention of the Legislature where a person owned a large number of lots in an improvement district that benefits to each of his lots, blocks or parcels of land, in order to be valid, must be assessed to each lot, block or parcel of land owned by him. This construction would certainly entail a lot of unnecessary labor on the part of the assessors where one assessment would answer the purpose. A majority of this court in construing a statute similar to this relating to drainage districts, in the case of Curtsinger v. Berkeen, 126 Ark. 94, 189 S. W. 673, ruled that an assessment of benefits en masse was not void.
Appellee admits that this proceeding is a collateral attack to set aside the assessments of benefits against her property on the ground that the assessors made a demonstrable mistake in assessing said benefits, and that she is not barred from attacking the assessment under the provisions of § 13 of act 64 of the Acts of the General Assembly of 1929. She is barred from attacking the assessment under the ruling of this court in the case of Osborn, et al. v. Board of Improvement of Paving Imp. Dist. No. 5 of the City of Fort Smith, 94 Ark. 563, 128 S. W. 357. This court said in that case that: “The questions of the benefit to particular property to be derived from a particular improvement, and the correctness of the assessments levied thereon, are concluded, except for fraud or demonstrable mistake, by the action' of the city council in establishing the district and of the assessor in assessing each piece of property, unless set aside in a proceeding instituted within thirty days after publication of the ordinance levying the assessments.”
Since no mistake was made in the assessment of benefits against appellee’s property, it is unnecessary to discuss what is and what is not a demonstrable mistake. We are holding that no demonstrable mistake was made in assessing benefits against her property.
On account of the error indicated the decree is reversed, and the cause is remanded with permission to appellant to foreclose the lien in the amount claimed for delinquent taxes and penalty for not paying the taxes as they matured. | [
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Grieein Smith, C. J.
February 1, 1935, Justice of the Peace W. W. Coffman rendered judgment against Garland Snyder for $211. October 1 of the same year Franklin P. Matz, attorney for the furniture company, accepted Snyder’s check for $25 and indorsed satisfaction in full on the judgment record.
Suit, upon which judgment was predicated, was filed June 2, 1932. On the J. P. docket there is the indorsement: “This cause having been set for hearing, is continued by agreement pending settlement.” The next docket entry is the judgment of 1935, wherein it was recited that the plaintiff appeared by attorneys, and “the defendant in person and in open court agrees on a judgment. . . . Defendant being notified confesses that judgment may be taken for $211.”
It is then recited that on February 15, 1935, the plaintiff’s attorney, Yirgil Willis, demanded execution, which was issued the day of demand, returnable March 15. Then there is this indorsement: “On this March 4,1935, plaintiff after notice given according to law, files schedule, claiming all personal property exempt. Super-sedeas issued.”
Chancery jurisdiction was invoked for the purpose of having the entry of satisfaction cancelled on the docket of the justice of the peace, the allegation being that Matz acted without authority. The chancellor found that the entry was unauthorized, and that it was made for the purpose of cheating and defrauding appellant, although there is no evidence that the attorney intended to personally profit by the transaction. In addition, the court found that the judgment was not authorized, and it was set aside and- the cause remanded for trial.
This appeal questions correctness of the chancery decree on both propositions: the furniture company having appealed from that part of the decree setting aside the judgment, and Matz, Snyder, and others, having cross-appealed from the order cancelling satisfaction.
Snyder testified that in July and August, 1931, he purchased of appellant goods invoicing $181.81. Goods were not shipped as ordered. Substantial portions of the orders were inferior substitutions for which there was but little public demand. Plaintiff’s agents acknowledged these deficiencies, but urged the consignee to retain the merchandise and endeavor to sell it to the best advantage, it being agreed that adjustments would be made. . Snyder returned goods of the value of $69.37, retaining the remainder under agreements with plaintiff’s agents to make the transactions satisfactory. Snyder was not able to dispose of the merchandise. While this situation continued appellant withdrew the agents with whom witness had dealt and substituted others who declined to recognize the agreements; and after notice the account was placed with Attorney Virgil Willis for collection.
Snyder further testified that he informed Willis of the facts herein recited, and that after suit had been filed the attorney agreed it would be “suspended and dropped,” and that a settlement would be worked out. Payments aggregating $65.45 were made to Willis, leaving a balance of only $49.37. Willis withdrew from the case. W. B. Foster and Franklin P. Matz were employed to succeed Willis.
The record shows an order of continuance pending settlement. This was tantamount to an agreement between the parties that no further action would be taken without notice. Snyder testified he was hot informed of appellant’s purpose to demand judgment and that he did not, until time for appeal had expired, know that judgment had been rendered. Opposed to this is the judgment recital that the defendant appeared in open ■court and consented to the action taken. The justice of the peace testified he did not remember that the parties were present. His statement was: “I do not remember anything about it except that later Mr. Snyder told me it had been paid for $25, and Mr. Matz came in and fixed it up. . . . If the lawyer for the plaintiff had come into my office .and told me that Mr. Snyder had agreed that [judgment might go against him] for $211, I would have let Mm write up my docket that way, but I don’t remember a thing about it.”
We pretermit a discussion of whether papers prepared in connection with Snyder’s schedule of property claimed as exempt show he had knowledge of the judgment in ample time for appeal — this for the reason that it is our opinion Snyder should have been informed before the judgment was taken. He had a right to rely on the agreement that the cause should remain quiescent while efforts at adjustment were being made, and since the justice of the peace has no recollection of the facts, but admits he would have permitted an attorney for the plaintiff to write the judgment, we think the chancellor did not err in holding that [constructive] fraud was perpetrated upon Snyder and upon the court. The fact that after the so-called settlement for $25 was indorsed appellant made no further move for five years is a circumstance against appellant’s contentions.
An attorney is not permitted to compromise his client’s cause of action or judgment without permission.
The decree is affirmed on appeal and cross-appeal.
Constitution, art. 9, §§ 1 and 2. Pope’s Digest, §§ 7183 and 7184. | [
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MoHaney,. J.
Appellant, a resident of.Little Rock, brought this action at Russellville, in the Pope circuit court, to recover damages for personal injuries which he alleged he sustained on December 30, 1938, while an ’employe of appellee, as a cable splicer helper. Appellee is engaged in the distribution of .electricity in the City of Little Rock, Russellville and other places. In Little Rook, in the downtown, district, it owns, operates and maintains an underground distribution system, consisting of duct lines, cables, switches, conduits,- manholes, transformer vaults, substations, and other equipment in and through which manholes ■ and yaults the cables, transformers and switches are installed for the purpose of supplying electricity to its customers in such downtown area. One of appellee’s lines is located in the alley west of and parallel to Main street, and runs from Markham south to west Eighth street. At approximately each 150 feet along said line, there is a concrete room known as a manhole which is entered through a surface opening and is kept closed, except when occupied, by a manhole cover. There are also located at certain places along and near this line concrete rooms known as transformer vaults, which are much larger than the manholes, the one here involved being 10x18 feet, 8 feet deep. There is one sneh manhole on the south side of west Fourth street, where the alley intersects said street, and approximately 20 feet west of it there is located a transformer vault housing three transformers for standby service. The only connection between this manhole and vault is a duct line encased in concrete which contains eight round fiber tubes, each about 3% inches in diameter, through which electric cables pass, and cables were in six of the eight tubes, leaving two vacant. It was in this manhole that an explosion and fire occurred on December 30, 1938, at about 11 o’clock a. m., at a time when appellant and three other employes were in the transformer vault some 20 feet away, and it is alleged that when the explosion occurred in the manhole the lights in the va'ult went out and it was filled with smoke, gas fumes and gases which he was compelled to inhale for a few minutes, until he got out by means of a ladder to an exit to which he was directed by others on the outside, he being the next to the last of those with him to get out. He alleged the cause of the explosion was unknown to him, but that “the explosion would not have happened except for the negligence of the defendant (ap-pellee), its servants, agents and employes, or was caused by something in connection with the equipment or operation of said electrical system in or about said vault, manhole or conduits, wires, substation and switches or other equipment over which defendant had entire control. ’ ’ He further alleged that he immediately fell to the floor, in accordance with appellee’s safety instructions, to avoid as far as possible the breathing of poisonous gases, smoke and fumes, and that it was negligent in not equipping said vault with circulating fans, which, together with his act in falling to the floor, would have prevented the injuries he alleges he sustained. He further alleged that “he does not know the exact cause of said explosion and therefore is unable to allege any particular cause thereof, but that all the facts of this explosion are well known to the defendant, its servants, agents and employes.” Quotations from appellant’s abstract. An amendment to this complaint was filed charging ten specific acts of negligence to appellee, as follows: 1. failure to furnish a safe place to work; 2. failure to provide approved testing equipment to discover natural gas in the vault; 3. in carrying too heavy a load of electricity through its equipment; 4. in using old and dilapidated wires, switches and conduits; 5. in not keeping its wires properly insulated; 6. in permitting its wires to come in too close contact; 7. in overloading the wires causing them to get too hot; 8. in not keeping its wires, etc., so as not to cause a short circuit; 9. in not clearing the gas from the vault and manhole prior to sending him in to work; and 10. in telling him and others to go into said vault.
The answer was a general denial and a plea of assumed risk. Trial resulted in an instructed verdict for appellee, on which judgment was entered, and from which comes this appeal.
Appellant’s principal reliance for a reversal of the judgment against him is based upon the doctrine of res ipsa loquitur, which means “the thing speaks for itself.” For the purpose of this opinion only, we assume that the doctrine is applicable to the facts in this case. In Chiles v. Ft. Smith Commission Co., 139 Ark. 489, 216 S. W. 11, which was a case in which a demurrer to the complaint was sustained and which is our leading case on the subject, the rule as declared in Shearman and Redfield on Negligence (§ 59) is quoted with approval as follows: “When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.” Another quotation in the same case from 20 R. C. L., § 156: “More precisely the doctrine res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised) the fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. . . . The presumption of negligence herein considered is, of course, a rebuttable presumption. It imports merely that the plaintiff has made out a prima facie case which entitles him to a favorable finding unless the defendant introduces evidence to meet and offset its effect. And, of course, where all the facts attending the injury are disclosed by the evidence, and nothing is left to inference, no presumption can be indulged — -the doctrine res ipsa loquitur has no application.”
It will be noticed that the rule is conditioned in the one case on “the absence of explanation by the defendant,” and in the other on “the absence of any explanation by the defendant tending to show that the injury was not due to his want of care.” And the last half of the quotation from E. C. L. is emphatic that it merely creates a rebuttable presumption, and imparts only the establishment of a prima facie case, which is overcome and disappears when proof of due care is offered by the defendant. In this respect it is comparable to and not distinguishable from the rule of law on our statutory presumption of negligence where a person or property is killed or injured by the operation of a train. In such a case a presumption of negligence arises from the mere happening of the incident, but it is a mere rebuttable presumption which is overcome, disappears and has no further place in the case when the railroad company offers proof of its due care. St. L.-S. F. Ry Co. v. Cole, 181 Ark. 780, 27 S. W. 2d 992; C., R. I. & P. Ry. Co. v. Fowler, 186 Ark. 682, 55 S. W. 2d 75; Western & A. R. R. Co. v. Henderson, 279 U. S. 639, 49 S. Ct. 445, 73 L. Ed. 884.
Now, the fact is that appellee’s testimony overcame this presumption of negligence arising from the doctrine or rule of res ipsa loquitur. The undisputed proof on the part of appellee is that appellant and other employes were engaged at the time in making its regular weekly inspection of its underground facilities; that there was no gas in the manhole or in the vault; that several of its employes had been in the manhole that morning, making an inspection, with the cover off and the manhole open; that before entering the manhole or the vault an inspection or test was made for gas and none was present; that natural gas is odorized so that it can be detected by the sense of smell; that other employes had left the manhole not exceeding ten or fifteen minutes before the explosion occurred; and that it was wholly unknown to appellee and its employes what caused the explosion. It was further shown that the wires, cables, conduits, switches and other equipment were in perfect condition, were of standard make and the best .and latest equipment. Mr.. Wilkes, General Manager of appellee, testified that he had made a “thorough investigation, done everything we possibly could —we know the result of it, but what caused it we don’t know.” Another explosion had occurred previously but they had been unable to ascertain what caused them. Appellee’s own chief electrical .engineer, Mr. Pitman, and a special engineer, Mr. Stewart, who, according to Mr. Wilkes, is “one of the best electricians in the United States,” were consulted and they could not determine the cause of the explosions, and that they are not discoverable by any known method of inspection. As said by this court in Western Coal & Mining Co. v. Garner, 87 Ark. 190, 112 S. W. 392, 22 L. R. A., U. S. 1183. “They (the wires) were shown to be in perfect order but a short while before the accident. The appellees do not show that the wires were in such condition before the accident that the exercise of ordinary care in their inspection would have discovered any defect. Mammoth Vein Coal Co. v. Looper, 87 Ark. 217, 112 S. W. 390. Negligence cannot be presumed, under the facts shown here from the mere happening of the accident.” Citing cases.
Here, the undisputed proof on the part of appellee shows that there was no lack of care on its part, nor is there any proof in the whole case that the accident could not have happened but for appellee’s negligence. So, conceding that the res ipsa loquitur doctrine is appli cable and that proof of the happening of the accident raised a presumption of negligence, still the proof on the part of appellee overcame the presumption, blotted it out, as it were, and it thereafter served no purpose in the case. There was therefore no question of fact to be submitted to the jury, in so far as the res ipsa loquitur doctrine is concerned, and the court correctly so held.
As to the specific acts of negligence alleged in the amendment to the complaint,' we think it unnecessary to discuss them in detail. The case seems to have been tried on the res ipsa loquitur doctrine, because of the explosion, but assuming that appellant relied on one or more of the specific acts alleged, there is no evidence in this record to substantiate any such allegation. He argues that it was the duty of appellee to exercise ordinary care to furnish him a reasonably safe place in which to work, and so it is. Even so, it was not an insurer of his safety, but was only required to exercise ordinary care. It is suggested that the failure to furnish fans in the vault was evidence of negligence. The only purpose fans could have served would be to blow out the gas or other noxious fumes therein, and the undisputed proof is that there was none, either in the vault or the manhole prior to the explosion. What we have already said, relative to the condition the equipment was shown to be in, and that the evidence fails to show any lack of due care on the part of appellee, disposes of appellant’s allegations of specific acts of negligence. The burden was on him to prove them, and this he has wholly failed to do. So, the court was correct in .directing a verdict for appellee on this account, as well as on the whole case.
No error appearing, the judgment is affirmed.
Humphreys, J., dissents. | [
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Humphreys, J.
This is an appeal from a judgment rendered by the circuit court of Johnson County, sitting as a jury by agreement, finding and adjudging that appellee was entitled to recover $970.25 from W. J. Morrow, Jr., administrator in succession, and his bondsmen, J. S. Kolb and W. J. Morrow, Sr., who are appellants herein. The judgment recites on its face that it was rendered on June 17, 1933, and filed July 15, 1933. The judgment also recites that the cause was duly submitted to the court at a regular term thereof and was heard on June 17,1933, 'both appellants and appellee being present by their respective, attorneys. The record reflects that the regular term of court at which the cause was submitted was adjourned on May 8, 1933, to June 19, 1933, and was not in session between said dates; hence that the cause was heard and determined in vacation. The subsequent proceedings show that the judgment rendered in vacation was filed during the adjourned term, which convened on June 19,1933, or, to be more definite, was filed on July 15, 1933.
Appellant contends for a reversal of the judgment because there is no constitutional or statutory law vesting the circuit court with authority to take a case under submission at a regular term of court, and to hear and determine it in vacation. This is true, but in the instant case the .judgment rendered in vacation was not filed or entered until the court reconvened. The filing or entry of the judgment in term time amounted to a confirmation of the findings of fact and law in vacation and to a rendition of the judgment in open court.
Appellants also contend for a reversal of the judgment because the. court rendered a judgment in favor of appellee for $970.25. Appellee brought suit against appellants to recover the balance due her for her dower interest in her husband’s estate. The appellant, J. W. Morrow, Jr., brought a suit against George H. Scroggins and appellee to recover amounts alleged to have been unaccounted for in his final settlement as administrator. The two cases were consolidated and submitted to the court, sitting as a jury, upon the pleadings and evidence adduced, which resulted in a finding that W. J. Morrow, Jr., administrator in succession of the estate of William Scroggins, was not entitled to go behind the final settlement of George H. Scroggins, which was approved by the probate court on February 23, 1931, and that appellee was entitled to recover from appellants the balance due on her dower interest, less $1,003.74, for which George H. Scroggins wrongfully took credit as adjudged in a former case. The issues involved in these consolidated cases were involved in the trial of Scroggins v. Osborn Company, 181 Ark. 424, 26 S. W. (2d) 95, and were decided adversely to the contention of appellants herein upon practically the same record iioav before us. The findings of the court herein are supported by substantial evidence in the record.
The judgement is therefore affirmed. | [
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Humphreys, J.
Appellee recovered judgment against appellant in the trial court for $387.90, $100 attorney’s fee, and 12 per cent, statutory penalty under the total disability clause in two indemnity insurance policies issued on the 14th day of August, 1931, representing the premium payments which were made by appellee in the month of November, 1931, and the disability benefits which accrued in accordance with the terms of the policies up to and including August 19,1933, the date of the trial, together with interest on such accrued installments.
An appeal has been duly prosecuted to this court challenging that part of the judgment allowing benefits for total disability to appellee from September 15, 1932, to the date of the trial on August 19, 1933. It is conceded that the evidence adduced on the trial was sufficient to sustain the finding and consequent judgment under the provisions of the policies that appellee was totally disabled from the date of the injury until September 15, 1932, on which date he attempted to secure re-employment. The total disability provision in the policies is as follows:
“Disability is total when it prevents the insured from engaging in any occupation for remuneration or profit.”
This identical clause, as well as clauses of similar import contained in accident indemnity policies, has been construed by this court as meaning such a disability as renders the insured unable to perform the substantial and.material acts of his business in the usual and customary way, and not such disability as renders him absolutely helpless. Travelers’ Protective Association of America v. Stevens, 185 Ark. 660, 49 S. W. (2d) 364, and cases therein cited on the point.
Appellant’s contention is that the trial court erred in finding and adjudging that appellee was totally disabled after September 15, 1932, within the meaning of said disability clause as construed by this court. The sole question presented by this appeal therefore is whether the evidence is sufficient to support the finding and judgment of the court.
The material facts reflected by the record are, in substance, as follows:
On the date the policies were issued and at the time appellee was injured he was engaged in running a distributing station for the Magnolia Oil Company. The distribution of the company’s products to farmers and retailers was by truck. The duties incident to appellee’s position required a strong, able-bodied person, and, in order to obtain such a position, one had to stand and pass a satisfactory examination. Appellee received an injury in an automobile wreck on October 15,1931, which practically destroyed the use of his left hand and arm so far as labor was concerned. On account of this injury, he was discharged by his employer on February 15,1932, and did not seek employment until September 15, 1932. At that time he had learned to drive an automobile with one hand, but not with the same security and speed he formerly did. He was unable to secure employment in any avocation he had theretofore followed until April 12,1933, when he was employed by a friend, Walter West-brook, largely through sympathy, at a salary of $30 a month, to assist him in running distributing oil and gasoline station. He was unable to do many things connected with the business, such as lifting tanks of considerable weight, changing tires, covering as much territory in the solicitation of business as he formerly did, and in loading and unloading the truck. In serving the customers, he had to depend on them for assistance. If the roads were in bad condition, he did not venture out to solicit business or deliver the products. The only lifting he could do was with his right hand and with his right knee or leg. Walter Westbrook, as well as appellee himself, testified that he could not install equipment, unload tank cars, load motor oil on the truck, or deliver many of the products to the customers without aid, all of which duties were required of an oil and gasoline agent or of one in charge of a distributing station.
There is no dispute in the testimony as to the permanency of the injury, and appellee’s inability to per form, in the usual and customary way, the hard labor incident to any avocation or occupation for which he was qualified before the injury.
The facts detailed above disclose appellee’s inability after the date of the injury and until the date of the trial to perform, in the usual and customary way, the substantial and material acts of any avocation or occupation for which he was qualified. The instant case is ruled by the cases of Ætna, Life Insurance Company v. Phifer, 160 Ark. 98, 254 S. W. 335, and Mutual Life Insurance Company v. Marsh, 186 Ark. 861, 56 S. W. (2d) 433.
No error appearing, the judgment is affirmed. | [
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Mehaffy, J.
John C. Seargeant, husband of appellee, in January, 1917, made application for membership' in the Modern Woodmen of America, and for a benefit certificate. The benefit certificate was issued on January 17, 1917. On August 19, 1930, John C. Seargeant made application for exchange of his benefit certificate for a term certificate expiring at the age of 65. The certificate was issued, and the assessments were $1.45 per month, and 35 cents per month local camp dues. The dues and assessments were not paid in June, 1932, and on July first he was suspended from membership in the company. The appellee was named beneficiary in the certificate, which was for $1,000.
About November 1, 1932, J. C. Seargeant became ill, was taken to the hospital in Blytheville, Arkansas, on November 7th, and his case was' diagnosed as ruptured appendix, and he ¡died in the hospital op November 15, 1932.
On November 14tli the. appellee, wife of said Seargeant, mailed to the local camp at Paducah, Ky., a money order for $11.30, as payment for all hack dues and assessments. When the clerk of the camp' at Paducah received the money order on November 15,1932, he issued a receipt for the dues, and cashed the money order. The money order sent to the clerk at Paducah paid for the months of June to November, inclusive. No formal application was made for reinstatement, but the clerk of the camp signed the receipt and mailed it back to the insured. The clerk also wrote him at the time that he would have, to make formal application for reinstatement, and that he, the clerk of the camp, would write to the head clerk to mail application blanks direct to Seargeant.
On November 17th the clerk saw in a paper published in Paducah, an account of Seargeant’s death, and the next day the clerk wrote to Mrs. Seargeant a letter, and sent her his check for the amount she had sent him. The money was returned because Seargeant had not been reinstated, and the clerk did not know, and had no way of knowing, of the physical condition of Seargeant, as he was in Blytheville, Arkansas, and the clerk in Paducah, Kentucky. Mrs. Seargeant returned the check, and there was no letter explaining why it was returned.
A letter containing the following paragraph was introduced in evidence without objection: “Under a new ruling a member may go in suspension as long as 12 months and then reinstate without examination and that is the way many are doing. A large number that went in suspension a year ago have reinstated.”
The case was tried before the circuit judge sitting as a jury, and no declarations of either law or fact were made, and the court found in favor of appellee, in the sum of $1,000, with interest from date of judgment until' paid, and all costs. The case is here on appeal.
It is admitted that Seargeant was suspended for nonpayment of dues and assessments for June, 1932, and that no other assessments were paid until the day before his death, when a money order was sent, paying his dues up to and including the month of November.
The only question for our consideration is whether the policy was in effect at the time of Seargeant’s death. There is no dispute about his being suspended; no dispute about his illness; no dispute about the fact that the day before he died the money order was sent to Paducah, Ky., to pay his dues, and no dispute about the clerk of the local camp sending a receipt for the money.
The application, benefit certificate and bylaws were introduced in evidence. It is unnecessary to copy them in this opinion, but we will call attention to those provisions that affect the question here involved.
Section 44 of the bylaws reads as follows: ‘ ‘ Section 44. No Waiver of Any By-Law. — No officer of this society, nor any local Camp, or officer or member thereof, is authorized or permitted to waive any of the provisions of the bylaws of this society which relate to the contract between the member and the society, whether the same be now in force or hereafter enacted. Neither shall any knowledge or information obtained by, nor notice to any local camp officer or member thereof, or by or to any other person, be held or construed to be knowledge of or notice to the head camp, or the officers thereof, until after said information or notice has been presented in writing to the head clerk of the society.”
Section 66 of the bylaws provides that a beneficial member in suspension for more than three months but less than six months on account of nonpayment of assessments, fines or dues, if in sound health, * * * may be reinstated upon furnishing a certificate of sound health from the camp physician, or if beyond the jurisdiction of any local camp, then by some reputable practicing physician, possessing the qualifications provided in § 329 of these bylaws, upon form prescribed by executive council, after medical examination duly approved by the Supreme Medical Directors within six months of the date of suspension, and upon payment of the current assessments and dues and arrearages of every kind, including all assessments, dues, and fines for which the suspended member would have been liable by remaining in good standing.
One paragraph in the application for membership by Seargeant reads as follows: “I understand and hereby agree that if this application is accepted and I become a member of said society and afterwards cease to be a member thereof either by suspension, expulsion, or because of the violation of any provision of the bylaws of the society, or otherwise, I will have no interest whatever in the Benefit, General, or other funds of said society, and I hereby agree that any payments I may have made to any such fund shall be forfeited to said society whenever I shall so cease to be a member.”
The certificate contains the following paragraphs: “This certificate is issued in consideration of the warranties and agreements contained in the application therefor, and in further consideration that the member shall make payments to the society of the sums required by the bylaws of the society, on or before the last day of each calendar month in accordance with said bylaws.
“This certificate is issued and accepted with the express agreement that the provisions and conditions contained on this and the succeeding pages of this benefit certificate, and in any authenticated riders attached hereto, shall form a part of this contract as fully as if recited over the signature hereto affixed.”
The certificate provides “that the contract between the society and said member consists of (1) the Articles of Association of this Society, (2) this Benefit certificate, (3) the application for membership signed by the member and, (4) the bylaws of the society, with all present and subsequent amendments to each thereof.”
. This court recently said: ‘ ‘ The application for membership in appellant order and the certificate issued thereon both expressly refer to the laws, rules, and regulations of appellant, and make the certificate null and void, if the holder thereof fails to comply with such laws, rules, and regulations.
“It is well settled by our own cases, as well as the authorities generally, that the constitution and laws of a mutual benefit fraternal society, such as that of- appellant, form the basis and constitute a part of the contract of insurance. This contract measures the obligations of the members and the liability of the association or governing body.” Sovereign Camp Woodmen of the World v. Clark, 184 Ark. 1035, 44 S. W. (2d) 336.
The application, articles, certificate and bylaws constitute the contract in this case, and it is expressly provided that suspended members may be reinstated after suspension for more than three months and less than six months if in sound health. Seargeant was not only not in sound health, but was critically ill, and in fact died the next day after the money was sent to appellant, and it was received probably a few hours before his death. The undisputed evidence shows that neither appellant nor its agents knew anything about Seargeant’s illness when it received the money and issued the receipt. The undisputed evidence also shows that the clerk of the camp, Avhen he received the money order, wrote to Seargeant that he would have to make formal application for reinstatement, and that the clerk of the local camp did not have the application but would write the head clerk to send the blank applications for reinstatement direct to Seargeant. This was the day before he learned of Seargeant’s death. It is apparent that when Seargeant was at the point of death, the dues were sent to the camp without saying anything about Seargeant’s illness. When the contract provides that a member may be reinstated if in good health, the mere fact of making application for reinstatement without disclosing the illness of the member is itself an implied statement that he is-in good health.
‘ ‘ The parties made their own contract which is free from ambiguity, and necessarily must be enforced according to its terms. The beneficiaries must stand in the shoes of the insured, and will be bound by the terms of the policy issued; and the insured accepted and retained without objection the policy until it was forfeited for nonpayment of premiums upon the date fixed by its terms.” Craig v. Golden Rule Ins. Co., 184 Ark. 48, 41 S. W. (2d) 769; Mutual Life Ins. Co. v. Hynson, 171 Ark. 218, 283 S. W. 357.
“But the mere payment of assessments to the financial secretary or supreme treasurer does not operate to reinstate a member, where those officers have no authority to waive the laws of the society, which require a new medical certificate and a majority vote. * * * And, since no right to reinstatement exists, while insured is mortally ill, acceptance of arrearages without knowledge of such fact does not effect a waiver. Nor is there a reinstatement where, without knowledge ¡by insurer of insured’s illness, it accepts overdue payments, even though insured’s agent, in making said payments, had no knowledge of such illness. And where the policy has lapsed, and payment is accepted without knowledge of an accident to insured during delinquency, there is no liability therefor. ’ ’ Couch on Insurance, vol. 6, § 1376.
The bylaws of appellant expressly provide that the officers are not authorized to waive any of the provisions in the policy.
“It is usually provided that the insured, who has defaulted in his payments, can be reinstated on payment of arrears if he is in good health. Where such is the provision of the contract or bylaws, the good health of the insured is a prerequisite to reinstatement, and a payment of arrears when not in good health will be ineffective.” Cooley’s Brief on Ins., vol. 4, § 3787.
It is also said in the same volume, § 3788: “Under provisions authorizing reinstatement of persons in good health, a reinstatement obtained by one not in good health, without the association’s knowledge thereof, may be repudiated unless the association has waived the matter or is estopped.”
Appellee relies on a letter written by the clerk of the camp at Paducah, June 21, 1932, which contains the paragraph above set out. This letter was introduced in evidence without objection, and this statement is not contradicted. The rule itself was not introduced in evidence, and there is no statement in the letter indicating what was in the rule except the statement that the member might be reinstated without examination. There is nothing in the letter indicating that there could be a reinstatement if the member was not in good health.
Under the contract in this case, the member could not be reinstated if he were not, at the time, in good health, and, as the evidence conclusively shows that he was mortally ill at the time the dues were sent, he was not in good standing when he died, and there can be no recovery.
The judgment of the circuit court is reversed, and the cause dismissed. | [
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Hart, C. J.,
(after stating’ the facts). Counsel for appellant contends for a reversal of the decree on the ground that when public funds are wrongfully deposited in a bank and intermingled with the other funds of the bank and the bank becomes insolvent, the whole of the assets becomes a fund out of which the public fund should be paid as a preferred claim.
We cannot agree with counsel in this contention. The Crittenden County Bank & Trust Company issued a time certificate of deposit to the school directors of the Special School District of Marion for $100,000, bearing interest at three per cent. The bank became insolvent, and its assets were taken charge of and wound up by the State Bank Commissioner. The assets were sold by the Bank Commissioner under the approval of the chancery court to the Crittenden County Bank, which was organized for that purpose. This bank in turn became insolvent, and its affairs were wound up by the State Bank Commissioner. The Bank of Crittenden County was organized for the purpose of purchasing its assets and assuming its liabilities. We have copied in our statement of facts so much of the agreement as relates to the issue raised by this appeal. The agreement in plain terms only makes the Bank of Crittenden County liable for so much of the claim of the school district as shall not be paid by assessments on the stockholders of the bank, and it is liable under the agreement to pay the claim of the school district only as that of a general creditor of the bank. The agreement expressly states that the Bank of Crittenden County will pay on demand so much of the deposit liabilities of the Chittenden County Bank, including $100,000 to the School District of Marion, as are not paid by the application thereto of collections realized upon the assessment against the stockholders of the Crittenden County Bank. This agreement is to pay on demand, and it does not make any difference that a certificate of deposit was issued by the bank in favor of the school district, due three years after date. This certificate did not create the liability of the bank. It was merely issued to identify the claim of the school district which it had assumed. The fact that the certificate recited that it was due three years after date did not affect the liability of the bank. Its liability was fixed by the agreement of purchase and sale.
In Warren v. Nix, 97 Ark. 374, 135 S. W. 896, the court expressly held that the county treasurer was authorized to make a general deposit of public funds in his custody in an incorporated bank. The effect of this was that the relation of depositor and creditor existed, and the deposit did not become a trust fund. The court, held that in case of the failure of the bank, the claim for .public money stands on the same footing with the claims of general creditors and has no preference over them. The writer concurred in the judgment in that case because he thought the public funds deposited under the statute became a trust fund and that, on the bank’s becoming insolvent, this became no part of its estate.
This interpretation of the opinion was reaffirmed in Wallace v. Davis, 123 Ark. 70,184 S. W. 834.
If the bank had a right to receive the deposit of the school money in the present case as a general deposit, and in ease of the insolvency of the bank the school district would not have a preferred claim over general creditors, there is no good reason why the rule should be changed because the bank agreed to pay interest on the certificate of deposit. In this connection it may be stated that the bank did pay interest, and the school directors collected it from the first two banks and applied the sums so collected to the ordinary expenses of the district. Therefore we are of the opinion that, by the terms of the purchase and sale, the bank only agreed to become liable to the school district as a general creditor for the amount owed by the bank whose assets it purchased and whose liabilities it assumed.
Counsel for appellant, however, places his reliance on the cases of Talley v. State, 121 Ark. 4, 180 S. W. 330, and State use Prairie County v. McKee, 168 Ark. 441, 270 S. W. 513. In the first of these cases, the court never specifically passed on this question. It only said that, if the funds had been wrongfully placed in the bank, the principle that the State, as a sovereign, might claim that the public funds deposited in the bank wrongfully became a trust fund and thus gave the State a preference. In the latter ease it was contended that public funds wrongfully deposited in a bank and intermingled with the other funds of the bank, upon the insolvency of the bank became trust funds out of which the public funds should be paid as a preferred claim. The court said that the rule contended for was correct, but that.it had no application under the facts in the case under consideration. Thus, it will be seen that this case is no authority for the contention of counsel for appellant. The only reason for holding that a claim, for public money was a preference over the claims of general creditors is that when it is wrongfully deposited in a bank it becomes a trust fund.
The rule in any ca.se proceeds upon the theory that the true owner has the right to his own property. So where trust property has been wrongfully converted by the trustee and constitutes, although in a changed form, a part of the assets of an estate, it is equitable that priority of lien should be adjudged in favor of the trust estate' for the value of the trust property. But, before such priority of lien should be adjudged in favor of the trust estate, the trust fund must be identified. In such oases it is not necessary to point out the precise thing into which the trust fund has been changed or the precise time when the conversion took place, but it is necessary that the trust fund should be fixed and identified in some form or other.
This rule has been followed in the case of public funds. Hill v. Miles, 83 Ark. 486, 104 S. W. 198. In that case the court held that the mere fact that an insolvent bank owed one for trust fund does not entitle such creditor to a preference, but to obtain which he must show that the receiver or person having charge of the assets of the insolvent bank has in his hands some of the trust funds or property purchased by such funds or into which such funds have been changed or invested. That suit was a proceeding in equity by a county treasurer against .the receiver of an insolvent ¡bank to recover certain funds belonging to the county which, had been deposited by the treasurer in the bank before its failure, and to obtain possession of certain school warrants held by the receiver. There was a finding and decree against the treasurer, and the decree was affirmed on appeal. The reason was that there was no identification of the fund in the bank at the time of the failure with that deposited by the treasurer in the 'beginning, and no proof to show that the school warrants claimed by the treasurer had been purchased by the ¡bank with the funds deposited in the bank by the county treasurer.
Hence it does not make any difference that, if the fund originally deposited in the Crittenden County 'Bank & Trust Company should be considered a trust fund, for these funds were intermingied with the other funds of the bank and cannot be traced into any of the assets of the Crittenden County Bank & Trust Company or of the Crittenden County Bank which were purchased and taken charge of by the Bank of Crittenden County. No funds of the school district were taken charge of by the Bank of Crittenden County. The certificate of deposit issued to the school district was simply for the purpose of identifying the claim of the school district and showing the amount thereof. No funds which were originally deposited by the school district in the Crittenden County Bank & Trust Company can Ibe traced into the hands of the Bank of Crittenden County either in their original or in a substituted form. Of course, these funds in their changed form may have contributed to the assets which ultimately came into the hands of the Bank of Crittenden County and which constitute the residue of its estate, but the same thing might be said of any other general deposit which was on hand in the Crittenden County Bank & Trust Company at the time it failed, or in the Critten-den County Bank when it became insolvent.
Therefore, we are of the opinion that the decision of the chancery court was correct, and the decree of the chancellor will he affirmed.
Smith, J., not participating. | [
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Mehaffy, J.
On the 30th day of January, 1929, the prosecuting attorney for the Third Judicial District of Arkansas filed before two justices of the peace in the Eastern District of Lawrence County four hundred in-formations ; two hundred against the St. Louis-'San Francisco Eailway Company before Justice of the Peace W. Story, and two hundred against the Missouri Pacific before Justice of the Peace J. F. Israel.
All informations are alike, except as to date upon which the offenses charged were alleged to have been committed, and each information contained the allegation that the defendant unlawfully, knowingly and willfully failed, refused and neglected to comply with a certain finding, order, decree and mandate of the Arkansas Eailroad 'Commission requiring the railroad company to construct and erect sheds over the platform of its depot at Hoxie, Arkansas, in said district and county, and described as umbrella standard sheds, to be 250 feet long and having a spread of 12 feet, and to be located so as to accommodate passengers- boarding and alighting from trains, and defendants failed, refused and neglected, in the alternative, to construct and erect one shed of the dimensions aforesaid, to provide adequate protection to passengers boarding- and alig’Ming from trains in any direction after said Arkansas Railroad Commission had, by its order in case No. 517, when said matter was properly and legally before said Arkansas Railroad Commission on the 2d day of February, 1920, ordered the said defendant companies, within 45 days after the entry of said order, to erect and construct said sheds, contrary to the statute in such cases made and provided, etc. There was a second count in each information against the defendants for failure to stop its trains at the depot at Hoxie. The court, however, treated this second count as surplusage.
Neither of the defendants appeared in justice court, and there was a .judgment for $26 in each case, a total fine of $5,000 against each defendant, with costs.
Each defendant appealed to the circuit court, where the cases were tried and the judgments of the justice of the peace courts affirmed.
In the justice courts all the cases against the Missouri Pacific Railroad 'Company were consolidated and all the cases against the San Francisco Railway Company were consolidated, and then all the cases against both roads were tried together, and were also tried in the same manner in the circuit court.
On the 1st day of November, 1925, a petition signed by citizens, as required iby,the statute, was filed against each appellant with the Railroad Coinmission. Notice was served on each railroad company that the Arkansas Railroad Commission would hold a special meeting in the city of Hoxie on Friday, December 4, 1925, for the purpose of taking up for consideration the petition of citizens requesting that the railroad companies be required to erect sheds over the platform at Hoxie, and notified the companies that the commission would take such action with reference to- said petition as mig-ht appear just and necessary. Bioth appellants were not only notified but were present, and each filed answer, and resisted the application for an order of the Railroad Commission. Testimony was taken, and, after the testimony was taken, an order was made hy the Railroad Commission requiring the railroad companies ‘to build sheds.
The appellants appealed to the circuit court of Pulaski County, where the order of the Railroad Commission was affirmed. The order of the circuit court, as found at page 763 of 176 Arkansas, is as follows:
“The two railroads intersect at Ploxie, and pas-' sengers leave the train of each railroad ¡before the train crosses the track of the other, or reaches the station. Consequently passengers going to and from the station to the trains are of necessity required to walk quite a distance. Under the circumstances of this peculiar case, in the opinion of this court, the order of the Arkansas Railroad Commission does not appear unreasonable or arbitrary. It is claimed that the construction of sheds at EEoxie would require an unreasonable outlay hy the railroads, considering the results to be obtained. The matter of expense is to be determined by the railroad companies on the approval of the Railroad Commission. Considering the whole case, this court is of the opinion that the order of the Arkansas Railroad Commission is not arbitrary or unreasonable, and will therefore be affirmed.” St. L. S. F. R. Co. v. Albright, 176 Ark. 761, 4 S. W. (2d) 910.
Prom the judgment in the circuit court both appellants prosecuted an appeal, and the case was affirmed by this court on the 26th day of March, 1928.
In the present case the State introduced the order of the Railroad Commission requiring the companies to build sheds, and also introduced the secretary of the commission and one of the commissioners.
As we have already said, the case was appealed to the circuit court, where the judgment of the justice of the peace was affirmed, and this appeal is prosecuted to reverse the judgment of the circuit court.
At the conclusion of the testimony in the circuit court, the appellants moved a dismissal of the causes for the reason that § 1640 of 'Crawford & Moses’ Digest had not fbeen complied with. That section reads as follows:
“Filing copies of findings. The -Corporation Railroad Commission shall file a copy of their findings and decree with the -Secretary of State, the Attorney General, the circuit clerk of the county wherein such decree is granted, and shall serve notice upon defendant railroad company by delivering a copy of its findings and decrees to the nearest local station agent, and by sending by registered mail a copy to- the superintendent, -general manager, lessee or operator of such railroad or railroad company.”
It is insisted that, until this section requiring the Railroad Commission to file a copy of its findings and decree, is complied with as provided in said section, the order of the Railroad Commission could not become effective.
Section 1638 of Crawford & Moses ’ Digest provides for petitions. Section 1639 provides for inspections. It requires the Corporation Commission to make personal inspection of conditions, make investigation, take testimony, and provides that the findings of the commission shall be binding* upon all railroads within the State of Arkansas. Then -follows the section above quoted.
The Railroad Commission, under § 1639 of Crawford & Moses’ Digest, can make the inspection and investigation, make its findings, and file them as above mentioned, without giving any notice to anybody. If it does that, of course it would then have to give notice to the railroad company of what it had done. But the sections referred to by appellant, requiring the commission to file a copy of its findings, are wholly unnecessary in this case-, because, instead of making the investigation' and filing copies, the Railroad Commission had a hearing, at which both appellants were present and participated in the trial or hearing.
Section 1641, providing a penalty for violation of the order of the commission, contains this proviso: “pro vided, no order for doing anything hereinabove provided shall be made by snch commission until all parties concerned shall have received ten days’ notice of snch proposed change.”
It is undisputed that the appellants had the ten days ’ notice. There is no controversy about that. They not only had the notice, but they were present, as we have said, and defended, and both sides introduced evidence. When there was a finding against them, they appealed to the circuit court, and then to this court, where the judgment of the circuit court was affirmed.
Appellant calls attention to and relies on a statement in 20 R. C. L., 343. In § 6 of the same article in R. C. L. and in the same volume, following the section quoted by appellant, is the following: ‘Generally a person can be said to have notice of a fact only when it is actually communicated to him in such a way that his mind could and did take cognizance of it. And of course, when a person knows of a thing he has ‘notice’ thereof, as no one needs notice of what he already knows. While extrajudicial proceedings, or proceedings without jurisdiction, do not operate as constructive notice, yet express notice obtained from such proceedings operates the same as notice obtained in any other manner.”
In 21 R. 'C. L., under the head of “Process,” the questions of the nature, issuance, requisites and validity of the process are discussed, and, among other things, it is stated on page 1263: “But notice is for the sole benefit of the defendant to afford him an opportunity of being heard on the claim or the charges made against him. It is not required for the protection of the plaintiff. Moreover, a party may waive his right to have a suit begun against him by process, and he does so by making a voluntary appearance, or by authorizing another to appear for him.”
The only purpose of the sections of the statute relied on by appellants is to give the appellants notice so that they may have a hearing. And the proof in this case shows not only that they had notice, but that they were both present, participated in the hearing, introduced evidence, and could not have been prejudiced in any way. T'he appellants in this case have no' right to insist on filing the papers with the Attorney General, Secretary of State, and circuit clerk. They had a right to notice and hearing-; an opportunity to be heard in court. See Ghriest v. Railroad Commission of California, 170 Cal. 63, 148 Pacific 195; Seward v. Ry. Co., 17 N. M. 557, 131 Pac. 980; Miami v. Corporation Commission, 95 Okla. 57, 219 Pac. 126; Lane v. Levinson, 91 Maine 292, 39 Atl. 999; Dist. of Columbia v. Moulton, 182 U. S. 576, 21 S. Ct. 840; Hammond v. Gilmore, 14 Conn. 479.
It is next contended by the appellants that the statute under which the informations were filed is highly penal in its nature, and that this court, in 125 Ark. 45, 187 S. W. 1064, said: ‘ ‘ Courts have always been opposed to the enforcement of penalties except to the extent necessary to secure the manifest object of their infliction. For this reason penal statutes are construed strictly.’'
The manifest object of the infliction of the penalty here, or the manifest object in making the order of the Railroad Commission, was to compel the railroad companies to provide sheds for the protection of passengers. And, although proceedings to force the railroad companies to do this were 'begun in December, 1925, and the decision of this court affirming the Railroad Commission was March 26, 1928, no effort has been made on the part of either appellant to comply with the order. They were present at all the hearings, knew of the order, and refused to comply with it, and admit in this proceeding that they have not complied with it.
Appellants call attention to 46 C. J. 552, and rely on the law as there stated. The section quoted and relied on by appellant is § 40, on page 552, and following that, <§> 52 reads as follows: “A person for whose benefit or protection a notice should be given may waive the same, but he cannot waive notice so as to affect the rights of third persons.”
Appellants also call attention, in this connection, to Chicago & N. W. Ry. Co. v. Board of Sup’rs, 182 Ia. 60, 162 N. W. 868. This is a drainage case, and the statute in that case provided for two notices, hut the statute also provided for a hearing. The railroad company was present at the hearing, and could have taken an appeal, but did not do so, and the court in that case held that the notice was sufficient, and affirmed the case against the railroad company, stating, in effect, that it was not only in accord with the decisions of the Iowa court, but practically all other courts. It was contended in that ease that the proceeding was a taking of appellant’s property without due process of law, and the court said: “The sufficiency of notice and of opportunity of the property owner to be heard, to constitute due process of law, is a question that has had the attention of every court of the country, and, if any one thing concerning the law of taxation can be said, to be settled beyond doubt, it is that: “If provision is made ‘for notice to and hearing of each proprietor, at some stage of the proceedings, upon the question, what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process of law.’ ”
In the instant ease a provision was made for notice and hearing; notice was given to the railroad company; it was present at the hearing, introduced evidence, appealed to the circuit court, where it appeared again, and then appealed to this court. And, under the rule announced in the case relied on by appellant, the appellants in this case had ample notice, and the contention that the case should have been dismissed because of the failure to file notice elsewhere is without merit. In the next case cited by appellants, Chicago N. W. Ry. Co. v. Hamilton Co., 182 Iowa 60, 165 N. W. 390, there is no question of notice at all, but this was also a drainage case, and was affirmed by the Iowa court. It does not, in fact, decide anything with reference to notice.
It is next contended by appellants that this court affirmed the .judgment of the Pulaski Circuit Court with certain modifications. We do not agree with appellants in this contention. There was no modification of the order by this court. This court said: “This is an appeal from an order of the circuit court of Pulaski County, Second Division, affirming an order of the Railroad 'Commission requiring appellants to erect umbrella sheds along the tracks of each of the railroads at Hoxie, where they intersect, from the depot jointly used by them to the place where the trains stop to discharge and receive passengers.” St. Louis-S. F. Ry. Co. v. Albright, 176 Ark. 762, 4 S. W. (2d) 911.
That was the order of the Railroad Commission and the order of the circuit court. The order required them to erect sheds. The opinion goes on to recite that it is shown that certain of the appellants ’ trains would have to make two stops, because they would have to make one stop to take water and then another for unloading and loading passengers. The court further said, on page 765: “We think it the clear and reasonable duty of appellants to stop' their trains at the depot, or else build umbrella sheds for the protection of the passengers, who are 'compelled to come and go one hundred and fifty yards in order to ¡board the trains or reach the depot.” And, because of this statement in the opinion of the court, it is contended that it modified the order of the Railroad Commission. But just below this statement is the following: “The requirement of the construction of necessary facilities in the operation of the business of a public carrier is in no sense taking its property without due process of law. The contention that the order to build the sheds will unnecessarily burden interstate commerce is without foundation in fact. * * * We cannot agree that there is no necessity for the sheds. The record reflects the necessity for them in order to protect passengers from the elements, because appellants stop certain of their passenger trains an unreasonable distance from the depot for the reception and discharge of passengers.”
Of course, if they stopped at the depot where passengers would be protected, there would have been no neces sity for sheds and no necessity for the order, hut they did not do that; they claimed that it is impracticable to do so, and, for that very reason, the order was not to stop the trains, but to build the sheds, and there was no modification by this court of the order of the Bailroad Commission or order of the circuit court.
It is contended by appellants that this court had authority to modify, and they base that argument on a statement of the statute reading as follows: “And in such case the appeal to the Supreme Court shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable.” Section 21, act 124 of the Acts of 19-20L
Under that, what is this court to do? This court may and shall review the evidence. It did that in this case, and held that the evidence was sufficient to justify the order to build the sheds. This was the finding of fact that it made. There cannot be any controversy about it nor any misunderstanding about it if the whole opinion is read.
There is no contention either in this case or the other that the trains were stopped at the depot, but it is contended by appellant, because the prosecuting attorney put another count in his information, charging the railroad companies with failure to stop the trains, and that, because there was no proof that they did not stop the trains, they are entitled to the presumption that they have complied with the order of the commission because they stopped the trains. In the first place, the order of the commission, and the judgment of the courts was to construct sheds and not to stop their trains, and there was no occasion for the second count in the information. It was not based on any order of the commission or of the court. They were not fined under this count, and this count passes out of the case.
Appellants say: "We know of no law up to this time nnder which the State can (bring even railroad corporations into court under four hundred oases against them and secure a conviction or judgment thereon under any statute, penal in its nature or otherwise, without having some evidence as a predicate for such finding or judgment.”
Certainly they will not contend that there is not ample evidence to support the claim that the appellants violated the order of the Eailroad Commission in its failure to construct the sheds. The order was made to construct the sheds, and it is admitted in this case that the sheds have not been constructed. There was no order about stopping trains; hence no order for stopping trains could be violated. This also disposes of the third and fourth contentions of appellants.
It is next contended that the justice of the peace had no jurisdiction. The statute upon which the information is based expressly makes the failure to comply with the order a misdemeanor, and it is also expressly stated that every day of such violation shall constitute a separate offense. This is not a civil suit, but it is a prosecution for the violation of the order of the commission, and the statute provides for a fine, and the minimum fine was assessed against each of the parties.
Section 8568, referred to by appellants, makes it the duty of the railroad company to blow a whistle or ring a bell, and provides for a $200 penalty for negligence. It provides also that one-half of the penalty shall go to the informer and the other one-half to the county. In other words, it is a civil action for a penalty. The statute in that case did not make it a misdemeanor, and it did not provide- for the payment of a fine, but expressly stated that there should be a penalty of $200 for every neglect.
Section 6645 of Kirby’s Digest is quoted in support of the theory that only one fine can be assessed against appellants. That statute did not provide that each day should constitute a separate offense. Moreover, it made tlie parties liable to the party aggrieved. This question was settled by a decision of this court in the case of St. L. I. M. & S. R. Co. v. State, 99 Ark. 1, 136 S. W. 938, and settled against the contention of the appellants.
We therefore hold that the appellants, having notice and being present at the hearing*, are bound by the order made by the Eailroad Commission and affirmed by this court; that there was no modification of the judgment of the circuit court or the order of the Eailroad Commission ; that the findings of fact by the 'Supreme Court were exactly the same as the findings by the lower court; that the statute makes the failure to erect the sheds a misdemeanor ; that is, a failure to comply with the order of the commission is a misdemeanor, and the statute makes each day’s failure a separate offense. There is no contention that the sheds were built. That is the only order the commission made.
The .judgment of the circuit court is therefore affirmed. | [
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McHaney, J.
On August 23,1924, appellant entered into a contract with the appellee for the sale to him of a certain tract of land in White County, Arkansas, for a consideration of $1,700, in which appellee agreed to pay a certain note and mortgage to the Conservative Loan Company in the sum of $1,200 as a part of the consideration. The agreement further recites that: “I, M. D. Manning, am to pay all interest on .said loan up to September 1, 1924, and said G. H. Davis is to pay me the difference between the loan and interest up to $1,700 on delivery of deed of said land by me, M. D. Manning, to G-. H. Davis or Ms agent.” Pursuant to that agreement, on October 29, 1924, appellant and his wife executed and delivered a warranty deed to the appellee, conveying said land to him, containing the- following warranty clause: “And we hereby covenant with the said G-. H. Davis, his heirs and assigns, that we will forever warrant and defend the title to said lands against all lawful claims whatever, except for the mortgage above mentioned, and special assessments for improvement purposes.”
At that time both parties figured the accrued interest on the $1,200 mortgage to the Conservative Loan Company to September 1, to be $72, which was 9 per cent, for 8 months. This amount was deducted from the $500 due appellant, and a check given him for $428, in full settlement of the amount due him above the mortgage. Thereafter appellee paid off the loan to the Conservative Loan Company, with interest after September 1, and the interest for 8 months to September 1. Later the Conservative Loan Company advised appellee that it held a second mortgage on this land to secure a balance due it by way of commission or brokerage in making the loan of approximately $215, which appellee was compelled to pay in order to free his land from the lien of said mortgage. He thereafter instituted this suit to recover from appellant the amount so expended by him, alleging a breach of the warranty in the deed. The chancery court found in appellee’s favor, and entered a judgment against appellant for the amount in controversy.
We think the chancery court was correct in so holding. The total consideration agreed to be paid by ap-pellee, as set out in the written contract of sale and in the deed, as well as by the undisputed evidence, was $1,700. By the undisputed evidence this amount was paid in full by payment of the $1,200 loan and interest, after September 1, to the Conservative Loan Company, and the $500 paid to appellant, less accrued interest of $72, which was paid to the loan company for the account of appellant. If the balance dne on the second mortgage is said to be interest, then it was appellant’s duty to pay it by the plain provisions of his contract of August 23, as he there agreed to pay all interest on account of the loan up to September 1, 1924. If it be said to be an additional incumbrance, securing an indebtedness for any other purpose, it was not excepted in appellant’s deed to appellee, and constitutes a breach of warranty. In no event did appellee agree to pay more than $1,700 for the land. The amount of the second mortgage was appellant’s debt which appellee was under no obligation to discharge. He did not assume it or agree to pay it, nor was it excepted from the warranty in the deed of conveyance.
We find no error, and the decree is affirmed. | [
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McHaNey, J.
This suit was instituted under the Federal Employers’ Liability Act (IT. S. 'Comp. St. 8657-8605) by the administratrix of the estate of Sterling Smith, deceased, to recover damages for the benefit of his widow and children and his estate, on account of his injuries and. death while in the employ of appellant railway company as brakeman, alleged to have been caused by its negligence. There was a verdict and judgment for appellee, and the case is here on appeal.
We find it necessary to discuss only one question, in view of the disposition we make of it, and that is the sufficiency of the evidence to support the verdict, which was challenged by a request for a directed verdict, and is the principal ground urged here for a reversal.
Since this suit was brought and prosecuted under the Federal Employers’ Liability Act, which does not define negligence, the question as to the sufficiency of the evidence to establish negligence must be determined by that act and the apx>licable principles of the common law as construed by the Federal courts. Mo. Pac. R. Co. v. Skipper, 174 Ark. 1083, 298 S. W. 849. As said by the Supreme Court of the United States in Atlantic Coast Line R. Co. v. Davis, 239 U. S. 34, 49 S. Ct. 210, 73 Law ed. 230: 4 4 It is unquestioned that the case is controlled by the Federal Employers’ Liability Act, under ¡which it was prosecuted. Hence if it appears from the record that, under the applicable principles of law as interpreted by the Federal courts, the evidence was not sufficient in kind or amount tp warrant a finding that the negligence of the railroad company was the cause of the death, the judgment must be reversed.” Citing Gulf M. & N. R. Co. v. Wells, 275 U. S. 455, 457, 72 L. ed. 370, 371, 48 Sup. Ct. Rep. 151, and cases cited.
We find the rule governing the State courts well stated in the case of Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U. S. 472, 46 Sup. Ct. Rep. 564, as follows:
“By the Federal Employers’ Liability Act Congress took possession of the field of employers’ liability to employees in interstate transportation by rail, and all State laws upon that subject were superseded. Second Employers’ Liability Cases (Mondon v. New York, N. H. & E. R. Co.), 223 U. S. 1, 55, 56 L. ed. 327, 348, 38 L. R. A. (N. S.) 44, 32 Sup. Ct. Rep. 167, 1 N. C. C. A. 875; Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 501, 58 L. ed. 1062, 1068, L. R. A. 1915C 1, 34 Sup. Ct. Rep. 635; Ann. Cas. 1915B, 475, 8 N. C. C. A. 834. The rights and obligations of the petitioner depend upon that act and applicable principles of common law as interpreted by the Federal courts. The employer is liable for injury or death resulting in whole or in part from the negligence specified in the act; and proof of such negligence is essential to recovery. The kind or amount of evidence required to establish it is not subject to the control of the several states. This court will examine the record, and, if it is found that, as a matter of law, the evidence is not sufficient to sustain a finding that the carrier’s negligence was a cause of the death, judgment against the carrier will be reversed. St. Louis I. M. & S. Ry. Co. v. McWhirter, 229 U. S. 266, 277, 57 L. ed. 1179, 1186, 33 Sup. Ct. Rep. 858; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 371, 62 L. ed. 1167, 1170, 38 Sup. Ct. Rep. 535; New Orleans & N. E. R. Co. v. Scarlet, 249 U. S. 528, 63 L. ed. 752, 39 Sup. Ct. Rep. 368.”
The act referred to provides that carriers by railroad shall be liable in damages to their employees for “injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
Our statute, § 8562, C. & M. Digest, making railroads in this State responsible for all damages to persons and property done or caused by the running of trains in this State, has, so far as this case is concerned, been superseded, as also the rule of this court, announced in many decisions, that, where an injury is caused by the operation of a train, a prima facie case of negligence is established against the company.
Bearing in mind that the death of the deceased, Smith, must have resulted “in whole or in part from the negligence of” one or more of the employees of appellant working with him at the time, and that*“proof of such negligence is essential to recovery,” let us scrutinize the evidence in the light most favorable to appellee, which is a rule of the Federal courts (Coogan case, supra) as well as our own, to determine whether the testimony, together with all inferences the jury might reasonably draw therefrom, be sufficient, as a matter of law, to support the verdict and judgment. The facts, briefly stated, are as follows:
Appellee’s intestate was a young man, 36 years of age, a railroad brakeman for appellant, having three years’ experience, a wife and four minor children. On July 9, 1927, the date of his tragic death, he was head brakeman on a freight train running from Hugo, Oklahoma, to Ashdown, Arkansas. The crew consisted of an engineer, fireman, conductor and two other brakemen, Rhodes, swing brakeman, and Wallace, rear brakeman. The train arrived at Ashdown, in Arkansas, sometime between 2 and 3 a. m., the night being very dark, and was headed into the passing track in front of the station, the caboose having been cut off and left standing on the main track. The conductor, on arrival, had got off the train and gone to the interlocking plant, the tower, for instructions. The other operatives cut the three head oars off the train, brought them back on the main line, coupled them to the caboose, and continued backing the three cars and caboose, same being a coal-oar, a box-car, a tank car and the caboose, past the tower, where the conductor again got on the rear end of the caboose. The object of the movement then was to set the three cars between the engine and caboose on the Spencer Switch, which makes out from, the main line to the south thereof and west of the main line of the Kansas City Southern Bailway, the latter running from northwest to southeast, and the Frisco running east and west, the crossing being near the tower. A gravel public road running parallel with the Kansas City 'Southern crosses the Frisco, about 100 feet west of the crossing tracks, and there is a connecting track between the two railroads, running south from the Frisco and connecting on the south side of the Kansas City Southern. The switch stand for this connecting track is about 100 feet west of the west line of the highway and on the south side of appellant’s track. It is about 6 or 8 feet from the switch point of the connecting switch to the switch point of the Spencer Switch, the switch stand for the Spencer Switch being on the north side of the main line of appellant. These figures of distances are given by Conductor Caldwell, a witness for appellee. According to them, the stand for manipulating the Spencer Switch is located about 268 feet west of the crossing of the tracks of the two railroads, assuming that the highway does not exceed 60 feet in width. A statement of these facts is deemed important in view of what follows. After the conductor had boarded this cut of cars, he found the three brakemen on the rear end of the caboose, and advised them, the purpose of the movement, as above stated, and that it should be accomplished by uncoupling the caboose from the three cars, “kicking” it west of the Spencer Switch on the main line so as to put it in the clear, throw the Spencer Switch, and place the three cars thereon. All three brakemen understood the movement and how it was to be accomplished. Smith, the deceased, being the head or front brakeman, assumed, as was proper, the duty of uncoupling the caboose from the tank car which was next to it, crossing over to the north side of the tracks and throwing the switch after the caboose had passed, so as to shunt the other three cars on the Spencer Switch. Rhodes, the swing brakeman, assumed, as was proper, the duty of attending- the derail on the Spencer Switch, which had to be opened to permit the cars to pass up this track when the engine pushed them back. It was: the duty of Wallace, the rear brakeman, to stay on the caboose and set the brakes so as to stop it .in the clear on the main line after the “kick.” A signal was given the engineer to make the “kick,” which is accomplished by applying more steam so as to increase the speed of the train in order that the momentum thereby imparted to the caboose would carry it to the desired point after being uncoupled. To uncouple the caboose it was necessary for Smith to go to the front end, descend to the bottom step on the south side and raise or lift the lever, a safety device for pulling the coupling pin. It is certain that Smith did this, as the caboose was uncoupled, and rolled to the place desired of its own momentum. After doing this, as above stated, it was his duty to go to the switch stand on the north side of the track and throw the Spencer Switch. He was never seen alive by any person after starting for the front end of the caboose. Rhodes got off to attend the derail after the caboose passed, missed Smith, because he could not see the light of his lantern, signaled the engineer to stop, which he did, and, after investigation, found his dead and mangled body under the center of the middle car, both trucks of the tank car and the west trucks of the box-car having passed over his body. His head was north of the north main line track and his feet to the south between the tracks. His lantern was between the tracks, with the light extinguished. No witness was able to say just how the' accident happened.
This case was tried by appellee on the theory that it was 'Smith’s business to give the “kick” signal to the engineer; that it was in fact given by Rhodes without Smith’s knowledge; and that the engineer responded to such signal, made the “kick” unexpectedly to Smith, which threw Mm between the cars, and caused his death. This is the principal ground of negligence relied on.
Although the evidence is in dispute as to whose business it was to give such signal, we will assume that it was Smith’s. It is not disputed that there were three appliances at the front end of the caboose to hold to, a guard rail extending across the entire end of the platform and down both sides, about waist high, a ladder at hand running to the top of the caboose, and a grab-iron on the south side of this end. It will be assumed that deceased occupied the proper place, the lowest step on the south side, to raise the lever to pull the coupling pin. This would put him in a slightly stooping position to reach the lever, and some two or three feet south of the south rail. Appellee says that, when the engineer responded to the unexpected “kick” signal, the sudden lurch caused him to fall, that he caught on the guard rail at the rear end, and was swung around so as to fall across the north rail and be thus run over and killed. "While there is no direct testimony that this is what happened, we are asked to approve it as an inference reasonably to be deduced by the jury from the evidence. It is said that the “kick” given the caboose was sufficient to send it up the track, slightly up-grade, some 325 feet, which indicates the severity or force of the kick. But we cannot agree that this was sufficient to establish that the death of Smith resulted in whole or in part from the negligence of Ehodes in giving the signal, assuming it to be negligently or wrongfully done. He knew that a “kick” signal was to be given. He knew the object of the movement and how it was to be done. He actually pulled the pin before the kick was made, else there would have been a sudden jerk caused by an increased pressure of steam in the cylinders and suddenly cutting off all steam. If the pin had been in place, a jerk would have followed, and all the witnesses agree there was no jerk. The deceased was not a tall man, only 5 feet 8 inches in height. It is difficult to see just how he could be caused to fall by an increased speed of the caboose, which was never more than 10 or 12 miles per hour, and swing from the bottom step, some two or three feet south of the south track, so as to fall with his head and part of his chest across the north track. But there is no evidence that he fell off the caboose at all. We must indulge a presumption or surmise to reach this conclusion. Is it an inference reasonably to be deduced from the evidence? We think not. There was no sudden, unexpected, unusual .jerking of the caboose, but only a gradual increase in speed, not to exceed 10 or 12 miles per hour from the rate it was traveling. It appears to us that it is just as probable that he got off the caboose to cross over the north side and throw the switch; that, in doing so, he either stumbled and fell in the dark across the track, or was struck by the car following and was knocked doAvn on the track. One seems about as probable as the other. It may have happened either way, or some other and different way. As said by Judge Woolley, speaking for the Court of Appeals in Reading Co. v. Boyer, 6 Fed. 2d Series, 185:
“There was no evidence which tended to prove how the accident happened. As we have stated, it might have occurred in one of several ways. The only way conceivably involving negligence of the defendant was the lack of ballast between the main track and the track of the siding. We do not concede that lack of ballast in such a place constituted negligence, yet, assuming that it did, there is no evidence which remotely indicates that the decedent ‘lost his footing and was thrown under the train’ because of lack of ballast. As there were other ways in which Boyer might have met his death which did not involve negligence of the defendant, the case falls, we think, within the rule of Murray v. Pittsburgh, etc. R. Co., 263 Pa. 398, 403, 107 A. 21, 23, followed by this court in Philadelphia & Reading Ry. Co. v. Cannon, 296 F. 302, wherein the Supreme Court of Pennsylvania said: ‘It is not enough for plaintiff to show his injury might have been due to more than one possible cause, for only one of which defendant is responsible. He is obliged to go further and show the cause that fastens liability upon defendant was the proximate one, and the jury should not he permitted to 'base a verdict upon a mere conjecture that the injury was caused by one or the other.’ This is but another statement of the old rule that a party seeking to recover damages for injuries occasioned by negligence must establish negligence by affirmative testimony. Of course this does not mean that negligence must always be proved by the testimony of eye-witnesses. Philadelphia & Reading Ry. Co. v. Effinger (C. C. A.), 299 F. 950, but it does mean that it must be established, if not by the testimony of eye-witnesses, then by surrounding facts and circumstances which, though inanimate, speak the truth and affirmatively prove the fact. We cannot find in the record any testimony which tends to prove how Boyer met his death, and accordingly we have not found any evidence to support the verdict of the jury, that his death was occasioned by negligence of the defendant.”
This is also the rule in this court. Juries are not permitted to base verdicts on mere conjecture or speculation. There must be .substantial testimony of essential facts, or facts which would justify a reasonable inference of such essential facts, on which to base a verdict, before it will be permitted to stand. St. Louis, I. M. & S. Ry. Co. v. Smith, 117 Ark. 655, 174 S. W. 547; St. Louis, I. M. & S. Ry. Co. v. Belcher, 117 Ark. 638, 175 S. W. 418; Texas Co. v. Jones, 174 Ark. 905, 298 & W. 343.
The burden was upon appellee, not only to establish negligence, but that such negligence was the proximate cause of the injury. Assuming therefore that the act of br alternan Eh odes in giving the “kick” signal constituted negligence, there is a total lack of proof or inferences reasonably to be drawn therefrom that such negligence was the proximate cause of the injury, or that such injury resulted in whole or in part from such negligence. We have therefore reached the conclusion that the verdict and judgment are without substantial evidence to sup port them, and must he reversed, and the oanse remanded for a new trial.
HumphRbys and Kirby, JJ., dissent. | [
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Hart, C. J.,
(after stating the facts). The information was filed under § 2585 of Crawford & Moses’ Digest, which is as follows: “If any person shall knowingly and willfully obstruct or resist any sheriff or other ministerial officer in the attempt to serve or execute any writ, warrant or process, original or judicial, in discharge of any official duty, in case of felony, or any other case, civil or criminal, or in the service of any order or rule of court, in any case whatever, he shall he deemed guilty of a misdemeanor, and on conviction shall he fined in any sum not less than fifty dollars, and may also be imprisoned not exceeding six months. ’ ’
The State relies upon United States v. McDonald, 26 Fed. Cas. 1074, to affirm the judgment. In that case, in construing a similar act of Congress, the court said the offense includes obstruction or resistance to an officer in attempting to execute a writ of attachment, and that holding the attached property after levy and seizure is part of the execution of the process. In that case the deputy marshal who served the writ of attachment made an arrangement with the defendant, McDonald, to leave the attached property on his premises, in the charge and custody of one James H. Hubbard. Afterwards it was alleged that McDonald and others did forcibly, willfully and unlawfully take and remove a large portion of the property from possession of Hubbard. The court-said that the marshal had the right to appoint a custo.-dian of the attached property and to hold it by the hands of such custodian. Hence it was held that any obstruction of or resistance to Hubbard as such custodian was obstruction of and resistance to the marshal.
In the case at bar the property was left in charge of the defendant in the attachment suit. The officer who levied the attachment made arrangement with him to gather the cotton and haul it to the gin. It is true that the officer later wrote him that this arrangement was not satisfactory to the plaintiff in the attachment suit, and that he would make other arrangements about picking and ginning the cotton, still the defendant never relinquished his possession of the crop, 'but gathered it while it was in his own possession. The defendant was not guilty of any indirect or circuitous impediment to the execution of the process by taking the attached property from the possession of the officer or of a custodian in whose charge the officer had left it. The language of the statute is to “knowingly and willfully obstruct or resist any sheriff,” etc. This means to obstruct or oppose the officer, and not merely to defeat the execution of the process by being guilty of contempt of court or maybe some other crime. In order to sustain the conviction, the defendant must be guilty of the offense charged, and not of some other offense. As sustaining this view see Davis v. State, 76 Ga. 721. There the sheriff levied an execution on two oxen as the property of the defendant in execution, and left them in the field of a friend as his agent to take care of them. The defendant privately took and carried the oxen away during the absence of the officer and of the person in whose care they were left.. The trial court held that these acts of the accused were obstructing an officer in the execution of legal process within the meaning of the statute, which was substantially in the same language as our own. The Supreme Court reversed the judgment, and, after quoting the statute, said:
“The word ‘obstruct’ must be construed with reference to the other words in the statute — ‘resist or oppose.’ It is found in the same company with ‘resist and oppose,’ which mean force. The word ‘obstruct’ means to oppose, according to Webster; to obstruct an officer means to oppose that officer. It does not mean to oppose or impede the process with which the officer is armed, or to defeat its execution, but that the officer himself shall be obstructed. It is opposition to the officer, and these words, ‘obstruct,’ ‘resist,’ or ‘oppose,’ have nearly the same meaning, as used in the statute, and the word ‘oppose’ would cover the meaning of the words ‘resist’ or ‘obstruct’ as they are therein used, and they all mean the same thing. ’ ’
It follows that the judgment will he reversed, and the cause will be remanded for further proceedings according to law. | [
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Mehaffy, J.
This suit was brought by the appellee, based on the fifth subdivisión of § 3500 of Crawford & Moses ’ Digest. That section reads as' follows:
“Where either party shall be addicted to habitual drunkenness for the space of one year, or shall be guilty of such cruel and barbarous treatment as to endanger the life of the other, or shall offer such indignities to the person of the other as shall render his or her condition intolerable.”
The plaintiff alleged that he and the defendant were married on April 1, 1927, and that soon thereafter she began a systematic course of rudeness, studied neglect, unmerited reproach, open insult and abusive language toward him that renderd his condition in life intolerable, and that he left her on the first of December, 1927.
The defendant filed an answer and cross-complaint, and in her cross-complaint she alleged that the plaintiff, Ezekiel Bell, on October 1,1927, began a systematic course of rudeness, studied neglect, unmerited reproach, open insult and abusive language towards her that rendered her condition in life intolerable.
It therefore appears from the pleadings that the condition in life of each of them was rendered intolerable by the wrongful conduct of the other. The evidence is not very voluminous, but the testimony of the plaintiff tended to show that the parties did not get along well together; that the defendant would refuse to get up of a morning and cook breakfast for the plaintiff, and that plaintiff would have to come back in the middle of the morning and get his breakfast. She stated to one witness that if that man fooled with her she was going to kill him. She also charged him with going to see his former wife. The testimony of plaintiff also tends to show that she would curse, use bad words, and that she would fuss at his dead wife’s children. Finally one of the children, a girl, got so tired of her fussing at her so much, she -went to stay with her sisters. One of his children, Giles Williams, was 18 years of age; she did not make up his bed, and did not want to feed him, and nagged the plaintiff all the time about this. She had a son by a former marriage, who was 24 years of age, and lived with her. 'She would get mad when her husband would go out, and continue to fuss at him until he left. She would give them breakfast about half past nine o ’clock and get dinner late, and have nothing but cold lunches for supper. When one of his children died, he asked Mose Scott to come over to his house and make a coffin for the child, and Scott went over there with his tools and lumber and began to work on the porch, and she told him, in the presence of plaintiff, “You get that devilish thing away from here and carry it out to the barn or somewheres. You are not going to build that here. ” The testimony also shows that she said something about shooting plaintiff.
This testimony was, some of it, contradicted by the testimony offered by the defendant, and it is purely a question of fact.
Appellant calls attention to the fact that this court said in a recent cause:
“It is obvious that the court cannot grant a divorce because the parties have become dissatisfied with the marriage yoke. In such cases, parties must, by mutual concessions, make the yoke lighter.” Griffin v. Griffin, 166 Ark. 85, 265 S. W. 352.
But the court also said, in the same case, in the paragraph immediately following the one above quoted:
1 ‘ On the other hand, constant abuse, studied neglect, and humiliating insults and annoyances, which indicate contempt and hatred by the offending party, amount to such indignities to the person as to render his or her condition in life intolerable within the meaning of the statute. Tested by this rule, it cannot be said that the finding of the chancellor is against the preponderance of the evidence.”
. Appellant then quotes from the opinion written by Mr. Justice Wood in the case of Davis v. Davis, 163 Ark. 263, 259 S. W. 751. The quotation is quite lengthy, and is to the effect that the ease and frequency with which divorces are often obtained as a matter of expediency is a menace to orderly society, and in it lurks one of the dangers to the stability of our great republic; that one of the foundation pillars of our government is the sanctity of the marriage relation, etc. In the above case, written by Mr. Justice Wood and quoted from by appellant, it was also said, quoting from Pryor v. Pryor, 151 Ark. 150, 235 S. W. 410:
“Divorces are not granted upon the uncorroborated testimony of the parties and their admission of the truth of the matters alleged as grounds therefor.”
It was also said in the above case:
“In conflicts between the two depositions (husband and wife) hers must be deemed of gueater weight, because he seeks to obtain a divorce by his own testimony, and she attempts to defeat it by hers. He must establish alleged causes of divorce by corroborating evidence. In getting at the truth in relation to private scenes, quarrels and injuries between husband and wife, unwitnessed by others, it may be well to admit the testimony of the parties in divorce cases, but, because of the rule, founded on public policy, that a divorce will not be granted upon the unsupported testimony of the party seeking it, it necessarily follows that the greater weight must be given to the party opposing it, where their depositions conflict.”
If there were no testimony in this case corroborating the plaintiff, then he would not be entitled to a divorce. As this court has already held, a divorce will not be granted to one on his uncorroborated testimony, but the testimony of plaintiff in this case is corroborated by other witnesses. And, while their testimony is not very strong, it does corroborate his testimony,- so that the rule announced in the cases referred to does not apply, or rather the facts in. the cases are different from the facts in the present case. In the Davis case there was no corroboration.
Appellant also calls attention to Collins v. Collins, 176 Ark. 12, 28 S. W. (2d) 41. In that case the court said: “The testimony is not very satisfactory on the question of divorce, hut, after considering the whole of the testimony carefully and the situation and condition of the parties, we are of the opinion that the preponderance of the evidence entitles the wife to a divorce. It is perfectly apparent from the testimony of both of them that they were 'continually quarreling with each other, and that there was no likelihood of their becoming reconciled to each other. Each of the parties had children by a former marriage, and there was no hope of them ever living together again. Hence we are of the opinion that a preponderance of the evidence will sustain a decree granting the plaintiff, Alice Collins, a divorce from the defendant, F. D. Collins, on the statutory ground of indignities rendering her ¡condition in life intolerable. ’ ’
In the present case it may be said that the testimony is not very satisfactory, but, as in the Collins case,' each of the parties had been married before and had children by former marriages, and there is no hope of them ever living together again.
Another case to which appellant calls atention and upon which he relies is the case of. Scales v. Scales, 167 Ark. 298, 268 S. W. 9. That case also holds that the rule is well settled that divorces will not be granted upon the uncorroborated testimony of either party, even if admitted to be true by the other party. In the case last referred to the testimony showed that they were quarreling very much, as in this case, and, while the testimony in this case is not very satisfactory, there was some corroboration of. the testimony of the plaintiff.
While indignities mentioned in the statute are somewhat similar to cruelty, mentioned in another part of the section, still it has been' held by all the courts that indignities include conduct which is not within the defi nition of cruelty as a ground for divorce. Although it is said that indignities must amount to a species of mental cruelty, it is also true that what acts constitute such indignities have not been defined, but that they depend upon the facts of each case. As was said in Rose v. Rose, 9 Ark. 507, they may consist of rudeness, vulgarity, unmerited reproach, haughtiness, contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule and every other plain manifestation of settled hate and estrangement.
There must be in every case, in order to entitle the complaining party to relief, proof of personal indignities. And not only must there be proof of that by the complaining party, but his testimony must be corroborated by other testimony tending to prove the indignities alleged. In other words, a divorce will not be granted to a party on his own testimony, however strong it might be, but it must have corroboration.
Thé testimony of the plaintiff, Ezekiel Bell, and the testimony of the defendant both have some corroboration, yet it was a question of fact, and the chancery court found the facts in favor of the appellee. We cannot say that the finding was against the preponderance of the evidence, and the decree is therefore affirmed.
Justices Wood and Humphreys, JJ., dissent. | [
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Kirby, J.
'This appeal is prosecuted from a decree refusing to grant appellant an alteration or reduction of the amount of alimony adjudged against him in his successful suit for divorce against his former wife, appellee.
Appellant, then a colonel in the United States Army, brought suit for divorce against appellee, his wife, alleging desertion as a ground therefor, and obtained a decree for divorce on August 2, 1921, in which he was adjudged to pay the wife, appellee, the sum of $250 per month for alimony, out of which she was required to stpport their 15-year-old daughter, and provided that said allowance should be decreased in proportion to any decrease in the base pay which may be visited upon the plaintiff. The appellant married about a year after the divorce was granted, and now has a wife and five-year-old son in the family, and has had much additional expense on account of taking care of his mother, now deceased. The daughter, whose maintenance was provided for in the allowance to appellee in the original decree, was first married and then divorced, and is married again, and is self-supporting. The colonel, appellant, is now on the retired list, and his salary is $375 per month. The parties had no property for division when the decree was rendered, and each of them appears to have acquired more debts and obligations than property since that time. Two or three applications have been made for a reduction of the amount of alimony required to be paid because of changed conditions since the first deoree was rendered, the last being rendered September 29, 1928, reducing the amount of the alimony from $200 per-month to $162:50 per month, the appellant being allowed to pay only $132.50 per month for one year in order to enable him to pay off certain debts, and required to pay the $162.50 per month from December 1, 1928.
The chancery court has the unquestioned power- to allow alimony to a wife against whom a decree of divorce is granted, and to alter the allowance of alimony at any time upon a proper showing made, the amount allowed being governed by the circumstances of the particular case. Section 3510, C. & M. Digest; Kurtz v. Kurtz, 38 Ark. 119; Prior v. Prior, 88 Ark. 302, 114 S. W. 700, 229 Am. St. Rep. 102; McConnell v. McConnell, 98 Ark. 193, 136 S. W. 931, 33 L. R. A. (N. S.) 1094; Johnson v. Johnson, 165 Ark. 195, 263 S. W. 379; Clyburn v. Clyburn, 175 Ark. 330, 299 S. W. 38.
It is insisted by appellant that the court erred in not reducing the amount of the allowance of alimony required to be paid by him materially further, to $75 per month, while the appellee insists that there have been no changed conditions in the circumstances of the parties that would warrant the reduction of the allowance of alimony below the sum of $187.50 per month, which she insists is in accordance with the agreement of the parties incorporated in the decree of divorce.
It is true that the decree provides that the sum of $250 per month should be paid for alimony, out of which the daughter was to be supported, and that “said allowance shall be decreased in proportion to any decrease in the base pay which shall be visited upon plaintiff.” There was no property, as already said, to be divided between the parties when the divorce was granted, and it appears from the record that appellee regarded her social position better because of the prominence of her father and brothers as officers in the United States Army than as reflected by her husband’s rank therein. She preferred life at Washington rather than the more strenuous life of the military camps and cantonments, where her husband, in the discharge of his active duties, was required to live, and refused finally to accompany him to the places where he was required to serve. Since the decree of divorce there has been almost a continuous effort on the part of appellant, because of changed conditions, to procure an alteration or reduction of the allowance of alimony, and resistance of such effort on the part of the wife, to the extent of making complaints to the Department and superior officers of appellant.
Appellant is no longer in active service, being on the retired list, and now has a wife, who cares for and lives with him, and a five-year-old son dependent upon him for support. If the obligation to support a divorced wife under the decree entered be held to continue so long as she shall live unmarried, even beyond the retirement of the husband from active service and until his death, as appears to be the case, the changed situation and condition of the parties and the circumstances of the particular case must control and govern the amount of alimony allowed.
After a careful examination of all these matters as shown in the record, we have concluded that the court erred in not reducing the amount of the allowance of the alimony to the sum of $100 per month herein. That will require the payment by appellant to his divorced wife, under existing conditions, of a little over one-fourth of the amount of his entire income or estate, and certainly he should not be burdened, under the circumstances of this case, nor himself, his wife and child deprived of substantially more than an equal share of the amount of his income distributed among all entitled to support therefrom. The chancellor erred in holding otherwise, under the existing conditions, and his finding of fact, so far as necessary for a proper determination of the matter, is contrary to the preponderance of the testimony. The decree will be modified in accordance with this opinion, fixing the amount of alimony allowed and required to be paid by appellant at $100 per ¡month. It is so ordered.
Appellee is not entitled, of course, to relief on the cross-appeal. | [
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Mehaffy, J.
The appellant was indicted in Clark County, charged with the crime of murder in the first degree. It is alleged that he committed the crime by shooting and killing L. B. Harrison, on the 25th day of July, 1928.
A motion for continuance was filed by the defendant, and overruled, and exceptions saved. Defendant then filed a motion to quash the special panel of the petit jury, which motion was also overruled, and exceptions saved. The case was tried on 'September 15,1928, and appellant was convicted of murder in the second degree, and his punishment fixed at seven years in the penitentiary. Mo tion for new trial was filed, overruled, and aippellant prosecutes this appeal to reverse the judgment of the circuit court.
The appellant and Harrison were at a filling station on the Arkadelphia and Gurdon road, on the day of the killing, and they, together with Gerald Bishop, got in a car and drove down the road a short way; they went to an old slaughter-pen, and got some whiskey. After they had been together for some time, Harrison, the deceased, got in his car and left for Gurdon. Both the appellant and the deceased had been drinking. About four o’clock in the afternoon the appellant and Gerald Bishop went down the road in a car in the direction that Harrison had gone. Bishop, who was with Ham, and Ham both testified that they were going to Ike Halsell’s to get a saddle for Ham, and they found Harrison’s car in a ditch, and offered to help him get it out, hut he was drinking, and began cursing. He got out his gun, and made Bishop leave.
Bishop testified that defendant had two guns', one in his right hip pocket and the other in his shirt bosom. After Bishop* left, Ham went in his car down the road, and in about thirty minutes came back and said his car was stuck. They got Harrison’s car out, and went down to where Ham’s car was, to pull it out. Bishop got in Ham’s car and drove it up past Harrison’s car and up the road a little way. Harrison made them, according to their testimony, drink more whiskey, and threatened Bishop, and Bishop walked back up the road about 75 yards, and heard some words, and then heard four shots fired. He started in the direction where Ham and Harrison were, and met Ham coming out in his car. He got in the car with him and asked him where Harrison was, and Ham said: “You don’t know.” They went on, finally reaching Arkadelphia, and in doing so they went around about ten or twelve miles.
The appellant did not tell anybody about the lulling until after he was arrested. The appellant testified that he killed the deceased in self-defense; that deceased had a gun, and that lie killed him because he had to do it. That he had gone down to Halsell’s. to get a saddle; the Bishop boy went with him, and they offered to get Harrison’s car out of the ditch, and that Harrison was doing a good deal of cursing, and said they were going after liquor. Deceased had his gun out, and, when Bishop walked away up the road around the curve, Harrison called him a name, and said he wasn’t looking for anybody, and that Ham promised not to bring Bishop down there, and that he was going to shoot appellant. He pulled his gun, and appellant .backed off; then deceased still threatened to shoot him, and the appellant could not get to his car, and was afraid he was going to hurt some one, but that, when deceased saw that appellant was fixing to get in his car, he prepared to shoot. Appellant knocked his gun out of his hand, and picked it up, expecting to leave, but, as he rose with the gun, deceased was pulling another gun from his shirt bosom; had pulled it far enough out so appellant could see the handle, and then he shot him with the gun he picked up. He did not know what he did with the gun afterwards. Deceased was shot four times.
Numbers of witnesses testified, but there is some conflict in the testimony, and it would serve no purpose to s,et it out in detail.
Appellant’s first contention is that the court erred in overruling his motion to quash the special panel of the petit jury. The special jurors were not selected by jury commissioners, but the court directed the sheriff to summon them, which the sheriff did.
Appellant’s attorney said: “It is agreed by the State that the following named jurors, to-wit, * * *, were not selected by the bystanders, but selected by the sheriff,” whereupon the court said: “Now, didn’t you agree that that jury be summoned?” Appellant’s attorney said: “No sir, I just suggested that we have extra men, but I wanted them selected.” The court: “I know, but you did agree that the court could direct the sheriff to summon men to be here?” Whereupon the attorney for the appellant said: ‘‘I rather suggested to Mr. Carrigan that we have special men here, but 1 wanted them selected according to what I thought was the law.” Appellant’s attorney said: “Let the record show that at this present term of the court, at the time this case was passed over until this 14th day of September, 1928, the attorney for the defendant suggested that a special panel be had the day of trial.” And the court then said: “And that the court ordered the sheriff to summon a special panel of thirty men, and the State agrees that this special panel were summoned by the sheriff in pursuance of that order of the court, the special panel of jurors not to be resorted to until the regular panel were exhausted in the selection of the jury in the case.” Appellant’s attorney said: “And the defendant excepts to the special panel for the reason that they were not selected by the jury commission, as provided by §§ 6352 and 6354 of Crawford & Moses’ Digest.” He further said: “After the regular panel had been exhausted, when the special panel summoned by the sheriff were called for the purpose of being impaneled as jurors, the defendant at the time objected and excepted to the special venire.”
They objected to the selection of the jury from the special venire for the reason that they have not been selected as provided by the above named sections,
The court thereupon overruled the motion to quash panel summoned ¡by the sheriff.
This case, as the record shows, was tried at an adjourned term of the court. The court had, convened in Clark County on the 23d day of July, and the defendant was not tried until the 14th day of September. Before the court adjourned, the attorney for the appellant admitted that, while he did not agree that the jury be summoned, he suggested that they have extra men, but he wanted them selected according to what he thought the law was. It does not appear from the' record that he suggested at that time that he wanted them selected in any particular manner.
The appellant was arrested, and on the 25 th day of July the court set the case for Thursday of the second week, which would he August 2. On the 2d day of August the appellant filed his motion for a continuance, and the court thereupon set the case for hearing on the 14th day of September, 1928. The case was therefore postponed until the adjourned term at the request of the appellant. It is. true that he wanted it continued until the next term of court, hut the question of postponement or continuance was in the sound discretion of the court, and it would appear that from the 2d of August until the 14th of September would give appellant ample time to prepare for the trial.
While the statute provides for the selection of jury commissioners and the selection of jurors by them, the statute provides that the circuit court shall select jury commissioners possessing the qualifications prescribed for petit jurymen, etc. And then the section referred to by appellant provides the. manner by which the jury commissioners shall perform their duty. Section 6377 provides that if, for any cause, any of said jurors shall, at any time, be released from serving for the balance of the term, others! shall be summoned and sworn, so that there shall be at all times a panel of twenty-four regular jurors. Section 6378 provides: “If a jury for the trial of any case cannot be obtained out of said panel of regular petit jurors, bystanders shall be summoned, as the court may direct, to complete such jury, and the oath mentioned in § 6375, adapted to that particular cause, shall be administered to said 'bystanders, and the record shall contain the names of said bystanders, together with the statement that they were selected and sworn according to law.”
There is nothing in the record to show how many jurors constituted the panel when court met on the 14th of September. Evidently both the State and the defendant assumed that other jurors would have to be summoned; the defendant’s attorney suggested that other jurors be summoned, and tbe court thereupon directed the sheriff to summon 30 additional men.
It appears from the record in this case that § 6378 of Crawford & Moses’ Digest was complied with. It appears that the jury could not be obtained out of the regular panel, and that the court ordered 30' additional men summoned. But the appellánt insists that the section mentioned directs that they be summoned from the bystanders, and argues that the men selected by the sheriff were not bystanders. Of course, it may happen at any term of court that the petit jurors selected by the jury commissioners would be disqualified in a particular case, or a sufficient number of them be disqualified until it would be impossible to get a jury without summoning bystanders. It appears that this was true in this case. It dearly appears, from the attitude of both the State and the appellant that additional jurors were necessary, and, if that were true, the court would have to order other jurors selected, and the statute provides that it must order them selected from bystanders. In the case of Commonwealth v. Sacco, 255 Mass. 369, 151 N. E. 839, the court said:
“At the trial the contentions of counsel for the defense were, that the extra jurors should have been summoned from bystanders, and not taken from the jury list of the county at large, and that the sheriff had no right to use his own judgment in selecting names from the jury list. There was no contention that the names were not taken from the jury list; but, had that objection been so made, it would not have affected the whole panel, and therefore is not a ground of challenge to the array. It does not appear that this objection was raised with reference to any particular person called to serve as a juror. * * # yr0 fralxd or partiality in favor of the Commonwealth or material injury to defendants is shown. It was a question of fact to be passed upon by the court, whether or not only talesmen were selected who would be likely to favor the Commonwealth, and the judge’s finding that they were impartially selected is final, no abuse of discretion appearing*.”
‘‘ Bystander ” does not necessarily mean a person in or about the court room. The fact that be is in the court room or about the court room, or in the city where the case is tried, does not alone constitute such person a bystander. He is not a bystander in the sense of the statute unless he has no interest in the business or trial in the court. But a bystander means a qualified juror summoned by the sheriff from the county at large. Baker v. State, 79 Tex. Or. Rep. 510, 187 S. W. 949; Bennett v. State, 161 Ark. 496, 257 S. W. 372; Pate v. State, 152 Ark. 553, 239 S. W. 27; Rogers v. State, 133 Ark. 86, 201 S. W. 845; Sullivan v. State, 163 Ark. 11, 258 S. W. 643.
The court therefore did not commit error in denying defendant’s motion to quash the special panel.
It is next contended by the appellant that the court erred in overruling defendant’s motion to excuse jurors Tom Gibbon, W. A. Calloway and Dick Ward for. cause. These jurors testified that they had formed an opinion, but they had not formed an opinion from hearing the facts or hearing the witnesses’ testimony. The opinions of these jurors were based on rumor, and in each case the juror stated that he would disregard any opinions he might have formed and base his verdict upon the testimony. With the means of communication and information now at hand, if every person who had heard rumors about the case and from that had formed an opinion was disqualified as a juror, it would, in many cases, be very difficult, if not impossible, to get a jury to try a certain case. But the purpose of the law is- to get persons who can and will try the case fairly and base their verdict on the law and the evidence. Of course, if their opinion is based on facts within their knowledge, or evidence that they have heard, they would not be competent jurors. But the fact that they have formed or expressed an opinion does not disqualify them from serving on the jury if the opinion is based on rumor. Corley v. State, 162 Ark. 178, 257 S. W. 750; Poindexter v. State, 165 Ark. 614, 263 S. W. 375; Cobb v. State, 175 Ark. 1169, 299 S. W. 360.
Appellant insists that the court erred in permitting the prosecuting attorney to ask defendant if he had not, just a few days ago, killed a negro. This was on cross-examination, and this court said, in asking a witness on cross-examination how many times he had been fined and pleaded guilty for fighting or other offenses, that this was a proper question on cross-examination in affecting the credibility of the defendant as a witness. But the court also said that the defendant answered the- question in the negative, and no prejudice could have resulted to him from the question when it was considered in connection with the answer. Bowlin v. State, 175 Ark. 1047, 1 S. W. (2d) 546.
In the instant ease, no prejudice could have resulted, because the witness answered the question in the negative. But there was no error anyway, because it was proper on cross-examination as. affecting his credibility. Shinn v. State, 150 Ark. 215, 234 S. W. 636.
This court has said: “It was competent for the State to cross-examine the accused concerning prior unlawful or immoral conduct, regardless of time, for the purpose of testing her credibility.” DuVal and Rice v. State, 171 Ark. 68, 283 S. W. 23; Bowlin v. State, 175 Ark. 1115, 1 S. W. (2d) 553; Barron v. State, 155 Ark. 80, 244 S. W. 331; Groning v. State, 155 Ark. 85, 243 S. W. 959; Lewis v. State, 155 Ark. 205, 244 S. W. 458; Davis and Smith v. State, 169 Ark. 942, 277 S. W. 17.
This court has recently held in several cases, that, on cross-examination of the person charged with crime, he may be asked about other crimes, for the purpose of affecting his credibility. And the questions asked on cross-examination of Ham were proper, and, as we have already said, could not have been prejudicial because the question was answered in the negative.
The appellant next contends that the court erred in giving and refusing instructions. The instructions are quite lengthy, and it would serve no useful purpose to set them out at length. It is sufficient to say that we have carefully considered all of the .instructions, and have reached the conclusion that the instructions as a whole clearly stated the law to the jury. In fact, some of the instructions complained about, or rather, some of the modifications, made the instructions more favorable to the appellant than the instructions were without the modifications. Every feature of the case was covered by the court’s charge, and there was no error either in giving’ or refusing any instruction..
We find no error, and the case is therefore affirmed. | [
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Butler, J.
The appellant, Lakeside Bridge & Steel Company, was engaged in constructing a nine-mile section of Highway No. 105 north from Atkins, and this suit was brought against it by the appellee, Duvall, for damages for alleged breach of contract, and a verdict was rendered in his favor for the sum of $500. The evidence was to the effect that he had made an oral contract with one B-ay Hundley, who he alleged to be plaintiff’s superintendent, by which he was given the contract to haul sand, rock, cement, and other materials to be used in the construction of the road from Atkins to station No. 512, a distance of about nine miles, and also was given the contract to haul the feed for the teams of the appellant company and the oil to be used in the company’s operations on that road; that the price he was to be paid for hauling the materials was to be ten cents per hundredweight from Atkins to a place called Gumlog, located about station No. 22'2, and was to receive for the material hauled beyond that and across Isabelle Creek to and including station No. 512 the price of fifteen cents per hundredweight; and he sublet the contract for hauling the material to Gumlog from Atkins to W. S. Liles and Tom Johnson. These parties were to haul from Atkins to station No. 126, at three cents per hundredweight and from station No. 126 to station No. 222, or south of Gumlog from Atkins, at five cents per hundredweight, giving appellee a profit of seven cents per hundredweight on the nearer haul and five cents per hundredweight on that from station No.. 126 to station No. 222.
The testimony was that the contract was made first by Liles, and that Hundley, who was in'charge of the construction work, informed him that Liles had declined to carry out the contract, and offered it to appellee. There was some discussion as to the price to be paid for the hauling, hut Hundley, after a consultation with Mr. Kelly, the general foreman of the work, agreed upon the prices above stated — that is, ten cents per hundredweight from Atkins out to Isabelle Creek and fifteen cents per hundredweight north of Isabelle Creek. There was no written contract entered into. Appellee proceeded with his own teams to haul north from Isabelle Creek, and completed the hauling of material, and was paid for same, hut, at about the time his subcontractors began to haul, the appellant company put its own teams and trucks on the shorter hauls, and refused to permit the appellee’s subcontractors to do the work. According to the evidence for the appellee, all of the material was to be delivered by the appellant company at Atkins, and appellee was to haul it from Atkins to the end of the road.
The court, in submitting the case to the jury, made the following declaration of law in instruction No. 2:
“The court tells you that as a matter of law Hund-ley, under the testimony in this case, was not authorized to malee the character of contract that the plaintiff contends he did make with him, but that plaintiff contends that, even if Hundley did not have that authority, the bridge company knew that Hundley had made a contract giving him the exclusive privilege and right to do all of this hauling. And the court tells you that is the principal question for you to decide in this case. If the bridge company knew that Hundley, as their foreman, had — •although he didn’t have authority — if they knew that he had made that contract and they went on and performed parts of the contract under it, after they had knowledge that such a contract was made, the court tells you that they would be bound by the contract if they knew that Hundley had made it and went ahead and recognized the existence of the contract.”
The 'appellant contends that there was no proof to support the allegations in the complaint relative to the items $217.30 for hauling feed and $120 for hauling oil, and on two items for hauling gravel used in bridges, $287.27 and $166.35. We think that the appellant’s contention in these particulars is correct, and that there was no substantial testimony as to amount of feed or oil used in the work or the amount of additional gravel used in bridges. As to the feed, the most that is shown by the testimony is that there were about nine sacks a day used in feeding the teams, but there was no evidence as to how long the teams were used and fed on the work nor any testimony to warrant the jury in arriving at the amount of the oil used or additional gravel, and it is evident that these items were not considered by the jury, because its verdict was for much less than the damage claimed, and less than what it might have found as damages for loss of profit on the gravel and sand hauled.
It is next contended that there is no evidence sufficient to establish with any reasonable degree of oertainity the amount of sand, gravel and cement used on the road from Atkins to station No. 222 at or about G-umlog, because appellee did not know how much rock, sand, or other material he had hauled — that he didn’t keep any account of it. However, there is no contradiction as to his having hauled all of the material north of Isabelle Creek to station No. 512, the end of the road, or that he was.paid for it.
Watkins Hall, connected with the State Highway Department, testified in the case, and made an estimate of the quantities of material used on the highway running north from Atkins, known as No. 105, and attached to his testimony an exhibit showing the quantities of sand, gravel and cement used in the construction of the road, and also showed the amount of these materials that were used from Atkins to station No. 222, the total aggregate weight being 3,369,900 pounds, and it was this material that was to ¡be hauled for the appellee by Liles and Johnson, to whom he had sublet his contract for that part of the haul. The testimony of Hall is nowhere contradicted, and it is evident from his testimony that he Lad first-hand knowledge regarding the matters about which he testified. So, if the appellee did have a contract with the appellant, he would be entitled to his profit on the haul from Atkins to station No. 222. According to his statement, his profit would have been three cents per hundredweight from Atkins to station No. 126 and five cents per hundredweight from station No. 126 to station No. 222, but there is no testimony that we have been able to discover that would indicate just what proportion of material was hauled at a profit of three cents and how much was hauled at a profit of five cents per hundredweight to the appellee. The only way by which these amounts could be ascertained would be upon the assumption that the same proportionate amount of material was used between each station, but this assumption has no evidence to support it, and there is no warrant for the inference that the road was of the same width at every station or that the same amount of material was used. But, as appellee would have been entitled to as much as three cents per hundredweight profit for the whole amount used, if he is entitled to recover at all, the jury would have been warranted in figuring his profit on that basis, which would be in excess of its verdict.
The most serious question, however, which presents itself for our consideration is whether Hundley and Kelly, or either of them, were clothed with apparent authority to make the contract, and, if they were not, did the appellant company ratify the contract? In considering this question it is proper to take into consideration all of the ’circumstances surrounding the transaction. The president of the appellant company, S. C. Codding-ton, stated that Hundley had no authority to enter into a hauling contract for sand and gravel, as all such contracts are required to be in writing, and any contracts that are spread over any length of time must be in writing, and a bond is generally required, and that neither Hundley nor any other employee of the company had authority to enter into an oral contract or any other kind of contract so as to bind the company. But lie nowhere testified that Hundley did not make the contract, and there is no other testimony disputing that fact.
Bussell Weil testified that he was the Arkansas manager of the appellant company, which had a contract for the construction of a bridge over the Arkansas Biver at Dardanelle; that, as such Arkansas manager, he had no authority 'to make any contracts at all except for what the company termed “unit contracts” — that is, contracts for buying gravel or sand at so much per cubic yard, or on hauling so much per trip, or so much per ton — and if there was a longer contract made it would have to be ratified by Mr. Coddington or some officer of the corporation, and all contracts, even for the purchase of a pound of nails, would have to be in writing; that Hundley was construction foreman on the road work, and was authorized to hire and fire on the unit basis; that Mr. Kelly was in charge of the road work, and had authority over Hundley.
It is apparent from all of the testimony that Kelly and Hundley, acting under Kelly, had entire charge of the construction work on the road; and, while Codding^ ton and Weil say they had no authority to make any contract except on the unit basis — that is, so much per day, or so much per load — .they did in fact make all of the contracts for clearing the right-of-way and for hauling the material. Kelly had authority to sign checks, and did sign them, and Kelly and Hundley had authority to have the right-of-way cut, and that contract was made with the appellee, Duvall, and Coddington, the president of the appellant company, states that he does not think it was a written contract, but that contracts for clearing or grubbing could be terminated at any time. There is no testimony to show that Coddington had any active supervision over the road work, and Weil states that he had none; but Coddington testified that he was over on the road several times. Liles testified that Kelly had contracted with him to haul material out on the highway, and told him he would write up the contract and leave it at a certain place and time, hut it was never signed, and he (witness) concluded he could not make anything- out of the contract to haul at ten cents per hundredweight clear to the end of the road, and gave up the contract. When it became apparent that Liles had abandoned his contract, Hundley approached Duvall regarding the same, and, after some negotiation, informed Duvall that he had authority from Mr. Kelly to make the contract, and that when Kelly came back they would enter into a written contract, but no contract was ever written, and appellee went to work immediately after the verbal contract was entered into. Kelly himself talked with the appellee regarding the contract for hauling material, and knew all about its execution. Kelly also told appellee that whatever Mr. Hundley did on the job was all right, and Hundley was in charge of the work when Kelly- was not there. All of the witnesses testified that it was Hund-ley or Kelly who made the contracts, did the hiring and firing, and it seems, so far as those who did the actual work are concerned, there was no one known to be in charge of the operations except Hundley and Kelly.
The evidence shows that appellee completed, with his own teams and labor, a considerable portion of the hauling, and all of that which lay beyond Isabelle Creek, which was the longest haul and over the worst road, and that on this part of the.work he lost about $600, while the haul from Atkins to Gumlog or station No. 222 was over a much better road and a much shorter haul, and that was the reason appellee was able to sublet the contract for that haul for a lesser amount than he had contracted for. As -appellee had completed the long haul over a difficult road, when his subcontractors were preparing to haul material on the shorter and better haul, appellant ceased delivering material to Atkins and began procuring it at other places and transporting it to the points where it was to be used with its own equipment. We think that the circumstances of this case were sufficient to submit to the jury the question of the apparent authority of Hundley to enter into the contract with the appellee, and the instruction heretofore quoted, given by the trial court, was more favorable to the appellant than it was entitled to.
This court, in the case of Ozark Mutual Life Assn. v. Miller, 169 Ark. 136, 273 S. W. 378, on the question of apparent authority, laid down the following rule: “Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing, or such authority as he appears to have by reason of the actual authority which he has, and such as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. ’ ’ The same rule was stated in the case of Hal H. Peel & Co. v. Hawkins, 175 Ark. 806, 300 S. W. 420; and in the case of Three States Lumber Co. v. Moore, 132 Ark. 371, 201 S. W. 508, the court said: “'One dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent, clothed with authority coextensive with its apparent scope, and that an agent acting within the apparent scope of his authority, though in violation of specific instructions, may bind his principal in dealing with one who has no notice of the restrictions upon the agent’s authority.” On the authority of these cases, when applied to the facts hereinbefore stated, it is clear that there was some substantial testimony tending to establish the apparent authority of Hundley, and this question should have been submitted to the jury.
There is evidence that the appellant company knew that the appellee; Duvall, was engaged in hauling material, for he began hauling around the 10th of January, 1928, and continued to haul through the winter and for a considerable period of time, during all of which time the appellant company knew that he was doing the work, and, when he had completed the delivery of the material from Isabelle Creek to the end of the road, the appellant com pany bad received the benefit of that portion of the work which would have been most expensive to it, and for which it had procured the appellee’s services under the belief that he would have the work on the shortest haul and less expensive portion of the road. There is some evidence tending to show that the appellant was sufficiently acquainted with the nature and scope of appel-lee’s work and that it received such benefit from that work as would warrant the submission to the jury of the question of the ratification of the contract, even though it had been unauthorized and made by one who had no apparent authority.
It is well settled that a principal who accepts the benefits of an unauthorized act of a reputed agent cannot afterward deny the agency. Daniels v. Brodie, 54 Ark. 216, 15 S. W. 467; Coffin, v. Planters’ Cotton Co., 124 Ark. 360, 187 S. W. 309; Froug, etc. Co. v. Outcault Advertising Co., 114 Ark. 9, 168 S. W. 1075.
It is true, ordinarily, in order that the principal will be deemed to have ratified the unauthorized acts of an agent, he must have had knowledge of all material facts, and ignorance of such facts will render an alleged ratification ineffectual; but, where a benefit accrues'to the principal from the unauthorized acts of his agent, then he is charged with such knowledge, if, from all of the circumstances in the case, he knew or could have known the purposes and intentions of his agent and the persons with whom such agent was acting. Pharr v. Southern Arkansas O. & G. Co., 152 Ark. 567, 240 S. W. 407.
In this case it was admitted that Hundley and Kelly were the agents of appellant company and clothed with a limited authority in the prosecution of the work over which they had charge, but this limitation was not known to the appellee. Nowhere do the officers of the appellant company say that this contract was entered into without their knowledge, and it is clear that Codding-ton, president of the appellant company, knew that a material part of the work and the most difficult and expensive part was being performed by the appellee Duvall. In the light of these circumstances, it was clearly a question for the jury as to whether or not the appellant had ratified the acts of its foreman. Kerby v. Road Imp. Hist. No. 4, 159 Ark. 201, 251 S. W. 356.
As has been stated, the error committed by the trial court was not such as was prejudicial to the appellant company. First, the testimony is undisputed that there was a contract entered into; second, there is some substantial testimony to show that Hundley had apparent authority to make the contract; third, that it was ratified; and fourth, that the evidence shows with a reasonable degree of certainty that the appellee was entitled to damage in an amount equal to the verdict.
The judgment must therefore be affirmed. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Grant County for possessing a still, on the 3d day of February, 1929, and, as a punishment for the commission of the crime, was adjudged to serve a term of one year in the State Penitentiary, from which judgment he has duly prosecuted an appeal to this court.
Appellant assigns as reversible error admission by the trial court of testimony on the trial of the cause obtained by officers of the law in searching his dwelling-house on the 2d day of February, 1929, without a legal search warrant. The testimony admitted by the'court, over the objection and exception of appellant, was that of the sheriff and his deputies, to the effect that they made a search of appellant’s home on the 2d day of February, 1929, and found a lot of fruit .jars, about two dozen jugs, one barrel containing a little mash, a rubber hose three feet long in the house, two sacks of sugar in the loft, six empty barrels in the barn under the hay, a five-gallon keg, and a funnel; and that next morning, in searching the premises, they found a still, worm and other fixtures, making a complete still, hidden under a brushpile in appellant’s field, about one hundred and fifty yards back of the house. The search warrant bore date of February 5, 1929, and authorized the search of appellant’s house or premises for stolen or embezzled property. The return made 'by the sheriff on the back of the warrant on the 6th day of February, 1929, stated that same was executed on the 2d day of February, 1929, by searching appellant’s house, with results stated above.
Appellant argues that the warrant on its face postdated the search, necessarily showing that same was issued after the search was made; that it was not supported by an affidavit, and that it authorized a search for stolen or embezzled property and not for .stills and paraphernalia used in connection therewith, and that for these reasons and other defects appearing on its face- the warrant was illegal and of no effect.
Even though the warrant were illegally issued and void, evidence discovered by the search, tending to show appellant’s guilt, was admissible under the rule announced by this court in Starchman v. State, 62 Ark. 538, 36 S. W. 910, and reiterated and adhered to in the cases of Benson v. State, 149 Ark. 633, 233 S. W. 758; Van Hookc v. Helena, 170 Ark. 1083, 282 S. W. 673; Knight v. State, 171 Ark. 882, 286 S. W. 1013; Milton v. Fort Smith, 175 Ark. 694, 1 S. W. (2d) 45. Under the doctrine of all of these cases the admissibility of - such evidence is not affected, by the fact that the search warrant was illegally issued, or the officers making the search had no. warrant at all, and were trespassers.
Appellant also assigns as reversible error the action of the trial court in excluding testimony offered by appellants to the effect that Robert McGuire had been convicted several times for liquor violations. Appellant denied the ownership of the still, and testified that he believed Robert McGuire, who resided upon the farm, owned the still, and offered the excluded testimony as a circumstance in support of his belief. One may possess a still in violation of the law without being the owner thereof, so the testimony was not pertinent to the issue, and was properly excluded.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This suit was instituted by appellee against appellant in the circuit court of Independence County for permanent disability benefits under clause No. 2 of an insurance policy issued by appellant to appel-lee. The clause is as follows:
“It is especially agreed that if the insured, while less than sixty years of age, and after the first year’s premiums have been paid to the company on account of this policy, shall furnish proof satisfactory to the company, while the policy is in full force and effect, that he, from any cause originating after the delivery of this policy, shall have been permanently disabled or physically or mentally incapacitated to such an extent that he, by reason of such disability or incapacity, is rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value, the company, upon receipt and acceptance of such proof, will, by indorsement hereon, waive the payment of any premium or premiums that may become payable thereafter under this policy, except the premiums for double indemnity benefits. (2) If such disability was sustained as above described and before the insured attained the age of sixty years, the company -will pay to the life beneficiary the sum of ten dollars for each thousand dollars of the sum herein described as the sum insured, and will pay the same sum on the same day of every month thereafter as long as the policy remains in force.”
In addition to setting out the substance of the contract in the complaint, it was alleged that on the 15 th day of January, 1926, appellee was taken sick with a serious disease which totally disabled him from engaging in any occupation and rendered him unable to perform his duties as a school-teacher or automobile merchant, which were occupations he had been engaged in; that such disability was permanent, and that he furnished proof to the company of such disability; that he demanded payment under said disability clause, and the payment was refused. The prayer of the complaint was for one hundred dollars per month from the 15th day of January, 1926, to date of judgment, together with 12 per cent, penalty and a reasonable attorney’s fee.
A number of defenses were interposed to the alleged cause of action, but all were withdrawn except the defense that the cause of the disability complained of antedated the insurance policy by a period of seven or eight months.
The cause was tried to a jury on the 5th of June, 1928, upon the pleadings and testimony, at the conclusion of which each party requested a peremptory instruction. The court refused to instruct a verdict for appellant, over its objection and exception, and instructed a verdict for appellee in the sum of one hundred dollars per month from January 16,1926, to the date of the trial. Upon the return of the verdict by the jury the court rendered a judgment in accordance therewith, and for an additional sum of three hundred and sixty dollars, being 12 per cent, statutory penalty, and an attorney’s fee of five hundred dollars, from which is this appeal.
The facts responsive to the issue involved on this appeal are in substance as follows: In February, 1925, appellee concluded from certain symptoms, such as a cold, aching pains and a slight temperature, that he had “flu.” He was ill about a week, continued to teach school, had no attending physician, but treated himself. On June 20 following he applied for insurance with appellant, and during his medical examination informed appellant’s examining physician that he had “flu” in February preceding. The physician questioned him closely relative to the symptoms, the length of time he was ill, whether he went to bed, whether he continued to teach, etc. After having answered truthfully as to all questions propounded to him, the physician told appel-lee he was mistaken about having “flu,” and recommended him as an insurable risk to appellant, who issued a ten-thoúsand-dollar policy to him in September following, containing the permanent disability clause set out above. At the time of the application and on the day the policy was issued appellee was apparently sound in mind and body, and thought himself a well man. He continued to teach and work in the automobile business until January 16,1926, at which time he was stricken with a severe illness, diagnosed as “sleeping sickness,” which permanently disabled him. He was placed under the care of Hr. J. L. Green and his assistant, Hr. George B. Fletcher, of Hot Springs, both of whom testified that they were sure that appellee’s disease was due to the attack of “flu” he had in February, 1925; but both agreed that the medical profession did not recognize the beginning of sleeping sickness, and were floundering for the real cause thereof.
Appellant contends for a reversal of the judgment because, in the opinions of the eminent physicians, Hoc-tors Green and Fletcher, appellee’s disease was attributable to the attack of “flu” he had had in 1925, and which antedated the issuance of the policy, and was therefore not covered by the disability clause therein. In support of this contention, appellant interprets the disability clause as meaning that, if appellee’s disease originated from a cause antedating the delivery of the policy, it is exempt from liability thereunder. This would be indeed a very narrow construction to give the language used, and the construction would he more favorable to the insurer than to the insured. Appellant limited its liability in the disability paragraph to any permanent disability “from any cause originating after the delivery of the policy.” We think the word “cause” was used in the clause in the sense of “illness” or “disease,” and meant, in the 'connection used, that appellant should be responsible for permanent disability resulting from an illness or disease originating after the delivery of the policy. Certainly the parties did not contract with reference to latent germs or seeds of disease or illness existing in the body prior to the delivery of the policy. We think that the parties contracted with reference to' diseases or illnesses which should originate after delivery of the policy.
Ño error appearing, the judgment is affirmed. | [
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Kirby, J.
Eldridge Ross, residing in Howard County, executed two chattel mortgages on the same property, a cow and a bog, the first to appellant on the 20th day of January, 1927, to secure $50 due October 15, 1927, and the other to appellee on the.day of.....~. The mortgagor then moved with his family to Hempstead County before either mortgage was recorded, where he has since resided and was employed at the time of the trial.
Appellant filed his mortgage on the 28th day of November, 1927, not to be recorded, and appellee filed his mortgage, also in Howard County, shortly after it was executed, and before the filing of appellant’s mortgage.
Appellant recovered judgment for the possession of the cow in the replevin suit in the justice court, and the case was appealed to the circuit court. At this trial the mortgagor testified that he had returned the truck purchased from appellant — which was denied — to secure payment of the purchase price for which the mortgage was given, before the execution of the second mortgage to his father, whom he owed the debt secured by it. The court instructed the jury, and from the judgment on the verdict against him appellant prosecutes this appeal.
Appellant insists that the court erred in not directing a verdict in his favor, since his mortgage was first executed, and neither of the mortgages was a lien, not having been recorded in the county of the residence of the mortgagor.
If the mortgagor had not changed his residence from Howard to Hempstead County before the mortgages were recorded in Howard County, where made, the second mortgage, the une to appellee, would have constituted a prior'lien against the property anyway, being first recorded there. Merchants’ & Farmers’ Bank v. Citizens’ Bank, 125 Ark. 131, 187 S. W. 650. See Smith v. Union County, 178 Ark. 540, 11 S. W. (2d) 455.
Since the jury found, however, from virtually undisputed testimony, that-the mortgagor was a resident of Hempstead County when the mortgages were recorded in Howard County (Smith v. Union County, 178 Ark. 540, 11 S. W. [2d] 455), in a suit in replevin between the mort gagees, neither mortgage being a lien, with the second mortgagee in possession of the pnoperty, he was entitled, of course, to prevail, as the jury correctly found.
We find no error in the record, and the .judgment is affirmed. | [
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McHaNey, J.
By this appeal we are called upon to construe the second paragraph of the will of Samuel Kimbler, late of Crawford County, Arkansas, which is as follows:
“2. I bequeath all my property, personal and real, to my wife, Elizabeth, for her support and maintenance, during her life, and at her death I desire that my sons, Andrew and William, shall have all my real estate jointly, share and share, during their natural lives, and at their deaths to descend absolutely to their heirs. I make this bequest to my sons, Andrew and William, for the reason that they have remained with me and assisted me in purchasing my real estate and keeping it in repair. ’ ’
The testator’s wife, Elizabeth, predeceased him, which caused the legacy in her behalf, consisting of a life estate in his property, to lapse. At the death of the testator, October 12,1885, the will was probated, and the two sons, Andrew and William, entered into possession of the real estate owned by the testator, and held same under claim of ownership of the fee until their deaths — that of William occurring on October 21, 1900, and that of Andrew on May 11, 1925.
The question for our determination is, did the will, by paragraph 2 thereof above quoted, convey to Andrew and William a fee simple title to the land, or only a life estate? If a fee simple title was conveyed, then the ap-pellee is rightfully in possession of the small portion of said land in controversy, and the complaint, to which a demurrer was interposed and sustained, did not state a cause of action.
We think the court correctly held that the fee was conveyed, and that the complaint failed to state a cause of action. This case is ruled by the recent case of Shields v. Shields, ante, p. 167, and the eases therein cited.
We find no error, and the judgment is affirmed. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Hempstead County for manufacturing alcoholic, vinous, malt, spirituous and fermented liquors, and was. adjudged to serve a term of one year in the State Penitentiary as a punishment therefor, from which verdict and judgment he has duly prosecuted an appeal to this court.
Appellant assigns as reversible error the insufficiency of the testimony to support the verdict and judgment, contending that there is no substantial evidence in the record to support them. It is argued that, because the officers who found the liquor and arrested appellant were unable to state the per cent, of alcohol it contained and to state definitely that it would intoxicate a person, they only surmised that it was intoxicating, and that it was an inference on their part, and purely conjectural. Both of the State witnesses testified that the liquor contained alcohol. Witness Booker determined this fact from smelling and tasting the liquor.” Witness Lewellen concluded that it contained alcohol on account of its odor. Booker also testified, on direct examination, that it was intoxicating. The attending facts and circumstances were corroborative of their testimony. When they went to appellant’s home he informed them that he did not live there, but lived up at his- father’s on the hill. They went up there, and, after making a search, found no liquors, hut ascertained that appellant lived where they first found him. They returned, and found liquor which had been poured out on the ground in the back yard. They also found a keg practically empty, which' contained about a tablespoonful of liquor. Booker tasted the liquor in the keg. They also found three or four crates of bottles and a capper in the house. Appellant told the officers that if they would tell him where they got their information he would inform them where there wasi another outfit just like his.
We cannot agree with appellant that the testimony thus detailed, in substance, is insufficient to support the verdict and judgment.
Appellant also cites the cases of Sheridan v. State, 159 Ark. 604, 252 S. W. 579, and McCoy v. State, 177 Ark. 1053, 9 S. W. (2d) 241, in support of his contention, but neither case is parallel in its facts to the instant case. In the Sheridan case the witnesses did not profess to know whether the liquor contained any alcohol, and in the McCoy case the witnesses did not testify that either one of them tasted the liquor and found it contained alcohol, or that it was intoxicating.
Appellant also assigns as reversible error the refusal of the court to instruct the jury that, unless they found that he manufactured intoxicating liquors, they should acquit him. The 'court instructed the jury that, unless they found from the evidence, heyond a reasonable doubt, that appellant made or manufactured either vinous, malt, spirituous, or alcoholic liquors, it would be their duty to acquit him. The court instructed the jury in the language of the statute under which appellant was indicted, and each hind of liquor mentioned therein is intoxicating. Alcohol means intoxicating liquor, and to have given appellant’s, requested instruction would have been a repetition of what the court had already .told them. Trial courts are not required to repeat instructions of like tenor and effect.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This is an appeal' from a verdict and judgment in favor of appellee against appellant for $300, rendered in the circuit court of Washington County, on appeal from the court of a justice of the peace in Springdale Township, wherein appellant was plaintiff and appellee was defendant, in an action of replevin to recover a Frigidaire electric refrigerator, which appellant had sold to appellee under a title-retaining contract and note, after default had been made of the first installment set out in said note.
Appellee filed no written answer in either court, and the record made up and brought up to this court does not reflect what oral defenses she interposed to the complaint. It was not necessary for her to file any written answer, as the suit was commenced in the court of a justice of the peace. In a magistrate’s court pleadings may be oral. Section 6426, Crawford & Moses’ Digest; Morrison v. Railway, 87 Ark. 424, 112 S. W. 975; Lochridge Dry Goods Co. v. Daniels, 115 Ark. 423, 171 S. W. 863. The verdict which was returned in the instant case is as follows:
“We, the jury, find for the defendant in ,t!he sum of $300. W. H. Johnson.”
The judgment rendered by the court upon the verdict is as follows:
“It is therefore ordered, considered and adjudged by the court that the plaintiff take nothing from the defendant by reason of this suit, and that the defendant do have and recover of and from- the plaintiff the sum of $300 and her costs herein laid out and expended.”
The appeal to this court is from alleged errors appearing on the face of the verdict and judgment because mot in the alternative for the return of the property or i,tte value. Appellant contends for a reversal of the verdict and judgment because same are not responsive to the issues which could have been joined in a replevin suit. As there were no pleadings, and the testimony was not preserved and brought into the record, it is impossible to determine what issues were joined in the replevin suit. We cannot agree with appellant in its contention that the verdict and judgment could not have been justified .¡by any issues which might have been joined. It may be that appellee pleaded and proved that the Prigidaire electric refrigerator was worthless on account of defects, and that she had made a $300 cash initial payment, under the belief thaf it was perfect, which appellant should refund to her; or it may be that she pleaded and proved a warranty as to the quality and kind of the machine, which appellant had breached, and on thaf account entitled her to recover such purchase money as she might have paid; or it may be that appellee pleaded and proved payment or a set-off, and that, after the seizure of the machine under the writ of replevin, it was losjj or destroyed and could riot be returned, which would have authorized the return of a verdict and the rendition of a judgment for its value. Since the verdict ciould have been returned and the judgment rendered upon an issue properly joined in a replevin suit, this court must presume that the issue or issues were joined which warranted the verdict and judgment in the forms returned and rendered. In § 1195 of Crawford & Moses * Digest counterclaims may now be interposed as defenses in any cause of action, replevin or otherwise.
This court said in the case of Brunswick-Balke-Collender Co. v. Culberson, 178 Ark. 957, 21 S. W. (2d) 903, that: “There is no reason why a counterclaim is not proper in a replevin suit, where it is simply replevin in form and is an action in debt in reality.” The instant case is one for an action in debt in reality, although in form an action in replevin.
No error being apparent oh the face of the record, the judgment is affirmed.
Smith, J., concurs. | [
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McHaney, J.
Appellant issued to one Laird a policy of accident insurance covering', among other things, damages done to his Stutz automobile by another through collision, which policy was in force on July 18, 1927. On that date appellee Browning negligently ran into the car of Laird, damaging it to the extent of $2,800, which amount appellant paid to Laird, taking from him at the time (Oct. 6, 1927) a release, assignment, and agreement for subrogation.. It thereafter instituted this action to recover from both appellees the amount paid Laird, with interest. The recovery sought against appellee Standard Accident Insurance Company of Detroit, hereafter called the appellee, since Browning has no interest in the appeal, a default having been taken against him, is based on the ground that it and certain associate companies had issued a policy of automobile insurance to Browning, indemnifying him against loss imposed by law upon him for property damage resulting from accident for an amount not to exceed $1,000.
The case was submitted on the following stipulation:
“1. The insurance policy sued upon is number A. P. L. 656725, and was issued to be effective from noon October 14, 1926, to noon October 14, 1927. The said policy, or a true copy thereof, may be attached to and become a part of this stipulation.
“2. ¡Said policy was deposited with the Railroad Commission of the State of Arkansas, pursuant to law and the commission’s rules.
“3. Under act No. 99 of the General Assembly of Arkansas at the 1927 session, approved March 4, 1927, a certain additional indorsement was required, and the Standard Accident Insurance Company, after considerable correspondence with the Railroad Commission and with D. J. Browning and with its local representative at Jonesboro and others, refused to place such indorsement upon the policy.
“4. Thereafter the Railroad Commission demanded of D. J. Browning that he take down the policy of the Standard Accident Insurance Company and deposit in its stead a policy with some other company complying with said act of .the General Assembly.
“5. Thereupon Browning requested Pierre La-tourette, the local agent of the Standard Company, to write the Railroad Commission and ask for the return of the said policy, with the understanding between Browning and the said local agent of the Standard Accident Insurance Company that later the policy would be canceled and that Browning would be refunded the unearned premium thereon.
“6. The Railroad Commission mailed the policy to the local agent of the Standard Accident Insurance Company at Jonesboro, and it was received a few days prior to June 29, 1927, and on the day that Browning and the local agent of the Standard Company discussed the matter and agreed to cancel the policy and that said local agent would take up by correspondence with the insurance company the question as to- what basis of refund of unearned premium would be made by the company, whether the refund should be estimated at the pro rata rate or the short term rate.
“7. On said June 29, 1927, the local agent of the Standard Company, with Browning’s consent, indorsed on the back of the policy: ‘Canceled 6-29-27. ’ On said day the policy was mailed by the local agent to the general agent of the defendant company at Little Rock, with a letter requesting that the local agent be directed on what basis the unearned premium should be refunded. On receipt of that letter and policy the general agent forwarded the policy to the home office of the company at Detroit, with a letter requesting instructions on what basis the unearned premium should be refunded.
“8. On July 2, 1927, the letter and policy reached the home office, and on July 6 the home office wrote the general agent a letter directing that the unearned premium be refunded on the basis of charging for the time the policy had been in force up to June 29, 1927, at the regular'rate, and deducting that amount from the amount paid, the difference being the amount which should be refunded to Browning. The home office made the calculation, and sent the general agent its check for the amount which should thus be refunded. The general agent received the letter and check about July 10, and wrote the local representative at Jonesboro, inclosing the cheek in the sum of $73.25, and directing that the refund of unearned premium be made on the basis of charging at the pro rata rate as if the policy had been canceled under its terms on a pro rata basis, and that letter and check were received by the local agent, Latourette, at Jones-boro, on July 18, 1927. The return premium was figured by changing the pro rata rate on the policy to June 29, 1927.
“9. On July 3, 1927, D. J. Browning filled out an application to New Amsterdam Casualty Company for a policy of liability insurance to take the place with the Railroad Commission of the policy of Standard Accident Insurance Company referred to above. Latourette was not the local agent for New Amsterdam Casualty Company, but was told by Mr. E. L. Dyer, State agent of that company, that if he would submit the application on blanks sent Latourette by Dyer, Dyer would submit the same to the New Amsterdam Company and see if they would issue the policy.
“10. Such application was made to P. M. Latou-rette, an insurance agent or broker, at Jonesboro, he being the same person who acted as local agent for the Standard Accident Insurance Company, and who had taken the application of Browning and procured the policy in that company in October, 1928. Latourette acts as agent for a number of insurance companies writing different kinds of insurance, he taking the applications and procuring the policies.
“11. At the time Browning applied through Latou-rette for the policy to be issued by the New Amsterdam Casualty Company, said Latourette was directed by Browning to take charge of the amount which would be due him as a refund of the unearned premium from the Standard Accident Insurance Company on the policy in that company previously referred to, and to credit the amount on the premium which would become due the New Amsterdam Casualty Company if and when that company should issue him an insurance policy.
“12. Said Latourette received a check for return premium due Browning from the Standard Accident Insurance Company on July 18, 1927, and on July 23, 1927, Latourette gave Browning credit on his books for the amount of the unearned premium due Browning from the Standard Company. The policy in the New Amsterdam Casualty Company was issued on July 25, 1927.
“13. The accident out of which this suit grew occurred on July 18, 1927.”
The depositions of two employees of appellee were also submitted to the court, together with certain correspondence, relating to its refusal to indorse its policy, as demanded by the Railroad Commission, so as to make it a statutory policy, to the matter of cancellation and the amount of return premium due Browning for the unexpired term. The court entered a default judgment against Browning for $2,800, but as to appéllee found that its policy had been canceled prior to the accident, and dismissed the complaint for want of equity. This latter action of the court is challenged by this appeal.
As appellant says, the sole question to he determined is whether the policy issued by appellee to Browning had been effectually canceled prior to the accident on July 18, 1927, so as to determine its liability thereunder. We agree with the trial court that it had, and that the cancellation became effective June 29,1927, nineteen days before the accident. Appellant’s counsel says that this cancellation-was conditioned upon Latourette’s securing Browning another policy in the New Amsterdam Company, and that therefore the cancellation did not become effective until such a policy was secured. We- do not so understand the agreed statement of facts. The Railroad Commission demanded that this policy be taken down and another be substituted complying with act 99 of 1927,-and, at Browning’s request, Latourette wrote the commission for the policy, which was sent to him, and on June 29 they agreed that it should toe canceled, so indorsed it, and sent it to the general agent in Little Rock, requesting to be advised as to basis of refund, whether short term or pro rata. The home office, on request, advised the settlement would toe made on a pro rata basis, which, was the more favorable to Browning. Now, Browning desired other insurance, and an application was made to the New Amsterdam Company through Latourette, not as agent for said company (which he was not), but as agent for Browning, who directed him to collect the unearned premium from appellee and apply it, so far as it would go, on the premium in the other company. There was no provision making the. cancellation of the policy issued by appellee dependent on securing other insurance. There was no agreement by Latourette binding him to obtain other insurance, but only to try to place the liability with another company. Under such conditions it cannot be said that the cancellation was conditional, and the case of Ætna Insurance Co. v. Rosenberg, 62 Ark. 507, 36 S. W. 908, has no application.
The general rule is that an insurance company may cancel a policy only on compliance with the provisions of the policy relating thereto, and then only by refunding the unearned premium prior to cancellation. Southern Ins. Co. v. Williams, 62 Ark. 382, 35 S. W. 1101. But it is also the general rule that the parties may agree to a cancellation at any time, with or without an actual refund of unearned premium. Payment or tender of the unearned premium may be waived by the insured by agreement to cancel and voluntary surrender of the policy for cancellation. 'Cooley’s Briefs on Insurance, 2 ed., vol. 5, pp. 4604, 4615. In 14 R. C. L., page 1012, it is said: ‘ ‘ The right of the insured to the return of the premium as a condition precedent to a cancellation may be waived, and is waived when the validity of the cancellation is acquiesced in by the insured, as by his voluntary and unconditional surrender of the policy upon receiving the notice of cancellation.” See also cases cited in note to above text, and 13 L. R. A. (N. S.), 889, and note, But here appellee did not request cancellation nor give notice, and canceled only at request of insured because, he desired to continue operating cars for hire in compliance with law.
Neither is any public interest involved, as the Railroad Commission, the agency established by law representing the public interest, demanded that this policy be taken down and another complying with the statute substituted. It may be that the commission could have prevented Browning from operating his cars for hire during the interim between the surrender of the policy in question and the receipt of another in due form, a question not decided, but it could not compel appellee to change the conditions of its policy in compliance with an act passed subsequent to the date of issue, nor to assume other or different obligations. So it requested the policy to be withdrawn.
Other questions are argued by appellant, but we find it unnecessary to discuss them. The decree of the court was correct, and is affirmed. | [
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McHaNey, J.
This action was instituted by appellee, to enjoin the commissioners of Waterworks District No. 1 of Mulberry, Arkansas, from proceeding to make the improvement contemplated by ordinance No. 52 of November 3, 1927, laying off and establishing the whole of the incorporated town of Mulberry as such district, based on the petition of ten real property owners therein.
This ordinance was published according to law. On February 9, 1928, and within 90 days after the publication of the ordinance establishing the district, the second petition, purporting to contain a majority in value of the owners of real property in the district, was filed and presented to the town council, praying that such improvement be made, designating the nature and boundaries thereof, and that the cost thereof be assessed and charged upon the real property therein. The council, by resolution, directed the recorder to publish the statutory notice, setting out the form thereof, warning the property owners that on March 6,1928, the council would hear said second petition and determine whether the petitioners constituted a majority in value of owners of real property in.the district. This notice was published according to law. On March 6, the council met to consider the matter. A number of property owners were present and all were given an opportunity to be heard. The minutes of the council on this date recited the purpose of the m-e.eting to be to consider whether the second petition contained a majority in value of real property owners “as listed on the taxbooks for the 1926 assessment.” The meeting adjourned “to some future day to enable parties protesting the petition to procure some desired information from the county clerk’s office.” The real object of the adjournment appears to have been to have the county assessor assess the value of certain exempt property, such as schools and churches, and extend same on the assessment rolls. On March 12, the council again met “in an adjourned session,” as shown by the minutes, with all members present, including the appellee, who was a member of the council, and it was unanimously determined, after full investigation, that the second petition contained a majority in value “as shown by the county assessment of 1926.” Thereafter, on March 22, the council appointed the appellants as commissioners of the district. More than thirty days later, on April 28, this suit was brought for the purpose heretofore stated. The court held the district void and open to collateral attack on the ground that the records of the council show that, in determining whether a majority in value had signed the second petition, the 1926 assessment was used instead of the 1927 assessment, which was the last county assessment on file in the county clerk’s office.
We think the court arrived at the wrong conclusion. The great preponderance of the evidence, if not the undisputed evidence, shows that the members of the council did consider the 1927 assessment instead of that of 1926, and that the reference to the 1926 assessment in the minutes was a clerical misprision. An error of the recorder in writing the minutes of the council could not -have the effect of voiding' the district if the proceedings were otherwise valid. The undisputed proof shows that a very substantial majority in value signed the second petition based upon the assessment either for 1926 or 1927. The 1927 assessment was only about $1,500 more than that for 19'26, and the majority on the petition was more than $6,000. So, based on the assessment for either year, there was a substantial majority in value on the second petition.
We think the assessment of the exempt property and its extension on the assessment rolls sufficiently appears to have been made by the county assessor, although made at the instance of citizens interested. It was held in the recent case of Dunbar v. Street Imp. Dist. No. 1 of Dardanelle, 172 Ark. 656, 290 S. W. 372, quoting the 4th syllabus, that “where a list of exempt property and its value was extended by the county assessor on the regular assessment roll, his failure to file a separate list at the time of filing the roll with the county clerk, under Crawford & Moses’ Dig., § 9936, was a mere irregularity which did not avoid the assessment roll as a guide to the city council in determining whether a petition for a street improvement was signed by a majority in value of the property owners.”
Moreover, the statute provides (§ 5652, C. & M. Digest) that the finding of the council, as to whether a majority in value have signed, ‘ ‘ shall be conclusive unless within thirty days thereafter suit is brought to review its action in the chancery court of the county where such city or town lies.” This is not a suit “to review its action, ’ ’ nor was it brought within thirty days after the council found that a majority had signed. Why is the appellee not precluded from making this attack? He was a member of the council, and helped make the finding — so voted. This court has many times held this to be a valid statute. Waters v. Whitcomb, 110 Ark. 511, 162 S. W. 61; Jacobs v. Paris, 131 Ark. 28, 198 S. W. 134; Burns v. Beard, 134 Ark. 10, 203 S. W. 20, and cases cited in all these.
The council had found that a majority in value had signed. Of course the validity of the district depended on this fact, as the right to make assessments for local improvements in cities and towns, under the Constitution, depends upon the consent of the majority in value. The Legislature lias vested the council with the power to determine this fact and made its finding- conclusive against collateral attack. A direct attack may he made in thirty days, hut not thereafter. The only question the council had to determine was whether a majority in value had signed. When it found in favor of the district and no review thereof was sought in’the chancery court in thirty days thereafter, its finding .became conclusive on the courts under the plain letter of the statute. The chancery court was therefore without jurisdiction to hear and determine the matter presented to it. See cases above cited. Many others to this effect might be cited.
The decree will be reversed, and the cause dismissed. It is so ordered.
Kirby and Mehafey, JJ., dissent. | [
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Kirby, J.
Appellant insists that the chancellor erred in not holding that the fund could be impressed with a trust, and that the testimony warranted a decree in her favor.
It appears to be well settled law, in the absence of statutes providing otherwise, that a trust in personal property may be declared, created, or admitted verbally, and proved by parol testimony. It is said in K. C. L.:
“In some jurisdictions an express trust cannot be created by parol, even as to personal property, but the great weight of authority is to the effect that the statute of frauds does not extend to trusts of personal property, and that such trusts may be created and proved by parol. In accordance with this rule it has been uniformly held that an oral promise by a beneficiary in a life insurance contract to pay the proceeds of such policy or a portion thereof to a third person is a valid and enforceable trust.” 26 R. C. L., p. 1194. See also 3 Pomeroy’s Equity (4th ed.) §§ 1008, 1009, pp. 2232-39; Chew v. Brumagen, 13 Wall. 497, 20 U. S. (L. ed.) 663; Hirsh v. Auer, 146 N. Y. 13, 40 N. E. 397, 398; Catland v. Hoyt, 78 N. E. 55, 5 Atl. 775. The rule of evidence for the establishment of such a trust, however, is different' from the general preponderance rule insisted upon by appellant, clear, convincing and satisfactory evidence being required. 3 Pomeroy Equity, supra.
It is stated in R. C. L. that the same degree of proof should be required — clear, convincing and satisfactory evidence — to prove such an express trust as to establish a resulting trust. 26 R. C. L., pp. 1203, 1231, § 44, § 77; see also Colegrave v. Colegrave, 89 Ark. 182, 116 S. W. 190, 131 Am. St. Rep. 82; Bray v. Timms, 162 Ark. 247, 258 S. W. 338; Scoggin v. Scoggin, 176 Ark. 1009, 4 S. W. (2d) 953.
The majority of the court is of opinion — in which the writer does not agree — that the proof of appellant is not sufficient to meet the requirements of the rule or establish the trust, and the case must be accordingly affirmed. It is so ordered. | [
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Kirby, J.
Tbe sole question for determination on this appeal is whether the contractor’s bond for the construction of a warehouse in the State of Texas is liable to the payment of the premium for employers’ liability insurance, required by the building contract to be carried for the owner by the contractor.
The contract for the construction of the building was made in Texas, where it was to be. performed, and expressly required the contractor to carry insurance during the progress of the work against loss or damage by fire, tornado, wind, etc., “and employers’ and public liability insurance,” * * * “the policies to be made payable to the owner and deposited with him,” etc. It also provided it should not become effective until the contractor should execute and deliver to the owner a sufficient bond, acceptable to him, in the sum of $33,000.
The bond was executed with the Union Indemnity Company, appellee, as surety, binding the contractor “to perform and fulfill all and each of the covenants, conditions and agreements as written and required in said contract, plans and specifications,” and provides “this bond is made for the use and benefit of all persons, partnerships, firms or corporations who may establish a lien against said warehouse for any material furnished or labor performed, for or on account of said contractor or any of his subcontractors, under the laws of the State of Texas now in force or hereafter enacted, and they and each of them are hereby made obligees hereunder the same as though their own proper names were written herein as such, and they and each of them may sue hereon.”
The appellant company brought this suit against the contractor and his surety for the premium conceded to be unpaid for the liability insurance policies issued, and recovered judgment against the contractor, who admitted liability, and, failing to recover against the surety under its denial of liability, brings this appeal from'an adverse judgment.
The building contract was made and to be performed in the State of Texas — was a Texas contract — and the bond expressly states it “is made for the use and benefit of all persons * * * who may establish a lien against said warehouse for any material furnished or labor performed, for or on account of said contractor, or any of his subcontractors, under the laws of the State of Texas now in force or hereafter enacted,” * * * and each of them are made obligees and given the right to sue thereon. J. R. Watkins Med. Co. v. Johnson, 129 Ark. 384, 196 S. W. 465; Wilson v. Todhunter, 137 Ark. 207, 207 S. W. 221; Parsel v. Barnes, 25 Ark. 26; Roberts v. Brown, 40 Ark. 423.
The nature, validity and interpretation of the contract and bond must therefore be governed by the laws of Texas, and the rights of the parties adjudicated by our courts as we understand they would be adjudicated by the courts of that State. Matthews v. Paine, 47 Ark. 54, 14 S. W. 463; Dodd v. Axle-Nut Sign Co., 126 Ark. 14, 189 S. W. 663; J. R. Watkins Medical Co. v. Johnson, supra; Bonner v. Stroud Brothers Gin Co., 172 Ark. 569, 289 S. W. 766.
In Hess v. Denman Lumber Co. (Tex. Civ. App. 218, S. W. 162), the statute (Acts 1915, p. 223, Vernon’s Ann. Civ. St. Supp. 1918, art. 5623A) requiring* the owner to take from the builder or contractor a bond conditioned as required therein for his own protection against liens and the payment of all subcontractors, mechanics, workmen and furnishers of material, was held void as an interference with the law of the liberty of contract. It can make no difference therefore that the bond was not conditioned in the terms of the invalid statute, and the sureties thereon could only be held liable to the payment of the claims covered by or included within its terms as written. The bond expressly provides it “is made for the use and benefit of all persons * * * who may establish a lien against said warehouse for any material furnished or labor performed for or on account of said contractor or any of his subcontractors, under the laws of the State of Texas,” all such being made obligees with the right to sue thereon. The owner, to whom the bond was made, is not sned for the unpaid premium due on the policies procured for his benefit issued and delivered to him, and no contention is made that a lien therefor was attempted to be established against the warehouse constructed. Our attention has not been called by counsel to, nor has 'our investigation discovered, any statute or decision of the courts of that State, of which we take judicial notice, giving a lien upon the building constructed to secure the payment of the-premium for the kind of insurance furnished herein, no lien therefor has been established against the warehouse, and the surety, being bound under the express terms of the bond to answer to all persons who may establish a lien against said warehouse for any material furnished or labor performed, could not be held to the payment thereunder of their non-lienable claim, as the court correctly held.
The judgment is affirmed. | [
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Butler, J.
The appellee, International Life Insurance Company, plaintiff in the court below, is the owner of Modoc Plantation in Phillips County, Arkansas, and on the 9th day of February, 1927, rented the same to the appellants, Bennie H. Burke and Bennie H. Lucy, for and during that year, for the sum of $5,200, and, in a lease contract executed on that day, waived its lien for rent on the crops produced in favor of the Interstate National Bank, located at Helena, to the extent of any sum which might he advanced by said bank to Burke and Lucy necessary for financing them during the year, in making and harvesting the crops on said plantation. Burke and Lucy executed a note for $20,000, with interest, to the bank and executed on the same day a deed of trust to secure it for the sums advanced on the note and for other moneys which might be advanced during the year, necessary to the production and harvesting of the crops.
The rent not having been paid, appellee instituted this suit against Burke and Lucy on the 15th day of February, 1928, and made the bank also a defendant, and asked for judgment against Burke and Lucy for $5,200 for rent, and for the appointment of a master and an accounting between the bank and Burke and Lucy to determine the amount of indebtedness incurred by Burke and Lucy in the operation of said plantation, and the value of the crops thereon which had been received by the bank, and that a lien be declared against the surplus in favor of the appellee. Attached to the complaint were a number of interrogatories propounded the defendants, Burke and Lucy, by which interrogatories the appellants sought to elicit the following information: the amount and value of the cotton and other crops produced ion appellee’s plantation during the year 1927; the amounts paid by Burke and Lucy to defendant bank; the amount actually necessary to furnish the plantation, and the amount in excess of that paid by Burke and Lucy to said bank; how much cotton and other crops grown on said plantation was then in their hands, and the number of bales iof cotton then stored with the Helena Compress Company; and the amount actually owing at that time under the deed of trust to the bank.
On the 24th day of March, 1928, following, there was filed an amendment to the complaint, setting out that there were 39 bales of cotton, described by certain numbers, grown on the plaintiff’s plantation and then in possession of the Helena Compress Company, with prayer that the compress company be made a party defendant and that a lien be fixed on the cotton in their possession. On the same day as the amendment was filed there was also filed with the clerk of the court a stipulation, signed by appellee and the defendants, Burke and Lucy, appellants here, and the defendant, Interstate National Bank, by which the allegations of the amendment to the complaint were admitted, and the consent of all parties noted that said cotton should 'be delivered to Burke and Lucy, and in consideration :of which a bond had been executed by Burke and Lucy, with the Fidelity & Deposit Company of Maryland as security, agreeing to pay plaintiff, the insurance company, the value of the cotton released if it should succeed in having a lien adjudged in its favor. Contemporaneous with the filing of the stipulation, the Interstate National Bank advanced to Burke and Lucy the sum of $2,600 to be applied to the payment of the rent, and on the same day, namely, March 24, on motion of plaintiff, an order was made by the court and entered ¡of record, by which the suit was dismissed with prejudice as to the Interstate National Bank, “but none other.”
There is nothing in the record to indicate that the compress company was ever served with summons or answer, so that company passed out of the case with the defendant hank. On the 14th day of April, 1928, the defendants Burke and Lucy filed their joint answer, admitting the 'ownership of the demised premises in plaintiff, the rent contract, the waiver of the lien in favor of the Interstate National Bank, and that “a portion of amount due by them as rent had not been paid.” They averred that all of the cotton grown on the plaintiff’s plantation had been delivered to the Interstate National Bank, and that the proceeds thereof were insufficient to repay the bank the sums advanced by it for the making and gathering of the crops, and that, since the institution of the suit, the bank had advanced, at their request, an additional sum of $2,600 to be applied towards the satisfaction of the claim of plaintiff against them. In answer it was denied that the 39 bales of cotton mentioned in the amendment to the complaint were grown on the lands rented from plaintiff, or that plaintiff had any lien upon same.
On the 2d day of September, 1928, the defendants, Burke and Lucy, made and filed identical answers to the interrogatories appended to the original complaint, in which they stated the number of bales iof cotton produced on the plantation of plaintiff, the amount of cotton and seed, the aggregate value of same, and stated that the whole of the proceeds from said plantation were paid to the Interstate National Bank. They stated the amount of money actually necessary to the operation of the plantation, and that this amount had been received by them from said bank, which was in excess of the proceeds of the cotton and cottonseed, and that this amount had been increased in the sum of $2,640, advanced them since the institution of the suit, to be applied to the rent due, which made a total excess over amounts received by the bank in the sum of $5,015.66. They further stated that the amount of cotton and its description in the hands of the Helena Compress Company was correctly stated in the stipulation of the parties theretofore filed, and that this cotton had been grown on plaintiff’s plantation. No master ¡or receiver was appointed, and the question as to the amount and'disposition of other crops than cotton and cottonseed appears to have been ignored by plaintiff.
Upon the pleadings and facts as heretofore stated the court, on the 26th day of ‘November following, rendered its decree, finding for the plaintiff a lien on the 39 bales of cotton described in the amendment to the complaint, and giving- judgment to the plaintiff against the defendants, Burke and Lucy, and the Fidelity & Deposit Company, for the sum of $2,789.45, from which finding and judgment Burke and Lucy and the Fidelity & Deposit Company have prosecuted this appeal.
The appellants do not question the correctness of the finding as to the amount due for balance of rent, but only that part of the decree adjudging a lien on the 39 bales lof cotton mentioned. Therefore it is to this question only that we direct our attention. Appellants, defendants below, have proceeded in this case upon the assumption that the waiver made in favor of the Interstate National Bank inures to their benefit, and have endeavored to show that the cotton produced was not sufficient -to pay the bank the sums advanced by it, and that therefore the court below erred in finding a lien in favor of plaintiff on said cotton. We think appellants are mistaken in their theory, and the right to make the defense offered was peculiarly that ¡of the Interstate National Bank. By the order of dismissal, made and entered on the 24th day of March, the -only party which might have availed itself of the defense offered went out of the case. It was the bank in whose favor the lien was waived, and not the tenant, who admits the rent has not been paid. It is ¡often necessary, as in this case, that landlords waive their liens in favor of those financing the farming operations, and if the theory of appellee was sound, then it would be equally reasonable that, where the waiver is not claimed by the one in whose favor it is made, any creditor of the tenant might assert the waiver for his own benefit, and the landlord he thus defeated in the collection of his rent. This would be absurd. This court has held that a waiver does not extinguish the lien, but only renders it dormant as to the person in whose favor the waiver is made (Varner v. Rice, 39 Ark. 344), and as to all other persons it is unavailable, even as to the assignee of one who might hold a mortgage on the tenant’s crop and in whose favor a waiver has been executed. Neeley v. Phillips, 70 Ark. 90, 66 S. W. 349. See also 36 C. J. 1545, and 16 R. C. L. 993.
In our opinion, the decree of the chancellor should not be disturbed, even though the theory of the appellants might have been correct, for we do not think that the appellant’s contention that the decree was without evidence to support it is sustained by the record in the case. It is true, the answer of Burke and Lucy t!o- the interrogatories is the only direct testimony in the case, and that the chancellor could not rightfully arbitrarily disregard the same, but, in order for this testimony to have weight sufficient to overturn the finding of the chancellor, as they are interested parties, their testimony must not only have been reasonable and consistent with itself, but consistent with the other circumstances in the case. In the first place, it is to be noted that they were parties in interest, and, as such, it cannot be said that their testimony was uncontradicted. Blankenship v. Modglin, 177 Ark. 388, 6 S. W. (2d) 531. But the testimony of Burke and that of Lucy was not all ¡of the evidence in the case. There are significant circumstances surrounding the entire transaction which protrude prominently, and which the chancellor could not ignore. He doubtless weighed the testimony :of the appellants, and considered it in the light of the aittendant circumstances. The bank, which was the only party at the commencement of the suit that could have benefited by establishing an amount of indebtedness in excess of the value of the cotton and cottonseed received, and with the means available to make the necessary proof, not only failed to avail itself of the opportunity to do so, thus losing the 39 hales of cotton, hut actually advanced to' 'Burke and Lucy $2,640 additional. This conduct can be explained on no other reasonable hypothesis than that the hank had already been paid more than the amounts it had advanced for the making and gathering of the crop on the Modoc plantation. It is possible that this might not be true, and that some ¡other motive might have impelled its action, but an abandonment of the right to valuable property and the payment of considerable sums in addition is not the ordinary conduct of business institutions of the known prudence ¡of the average bank.
In view of all the evidence, both direct and circumstantial, we think that the finding of the chancellor cannot be said to be against the preponderance of the testimony. The Fidelity & Deposit Company, having executed bond substituting that for the cotton released from the compress, has made itself a party to the case, and it follows that the court, having found a lien on the cotton, was correct in rendering judgment against it.
In view of the conclusions we have reached, the decree must be affirmed. It is so ordered. | [
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Smith, J.
This appeal is from a judgment in ap-pellee’s favor for the value of a dog which was killed by one of appellant’s trains. No witness who testified on behalf of appellee saw the dog struck, but the testimony on appellee’s behalf was sufficient to. support the finding that the dog had been run over by a train, and appellee relied upon the statutory presumption of negligence arising from the fact that a train had struck the dog. The question for decision is therefore whether the undisputed testimony overcomes this presumption. We think it does.
The only witness who 'knew how the train came to strike the dog was B. EL Nelson, who testified as follows: Witness was the rear brakeman on the local freight train which struck the dog. About 8 p. m. on January 17 the train was standing on the main line track, when witness, who was on the rear end of the ealboose, gave a signal for the train to back up. Witness testified that he “took the engine and caboose and started backing up, and saw the dog was standing between the tracks, and, as the caboose was passing the dog, it ran under the rear end, and was run over.” The dog was about four or five feet from the caboose when it started across the track under the caboose. Witness did not see the dog as it started across the track, but ‘ ‘ saw the dog standing there as we started to pass, but was not looking at the dog when he started under. When I heard the dog yelp I looked, and saw it kick back out from under the train.” There was .nothing he could have done', or that could have been done by the train crew or engine crew, that would have prevented the injury to the dog, as the caboose was being backed up in the yard, and the dog ran under the caboose from the side, and was run over. No witness disputed or contradicted this testimony or testified to any fact which even tended to contradict the brakeman’s testimony or to afford any just ground for the inference that the brakeman had not told the truth as to the manner in which the dog was injured.
We have said many times that the jury is the judge of the weight of the testimony and the credibility of the witnesses; but we have also said that the jury has no right to arbitrarily disregard the testimony of any witness, and we think it was arbitrary for the jury to disregard Nelson’s testimony. It is consistent in its entirety, and no fact or circumstance was offered in evidence which contradicts it or conflicts with it. It was therefore arbitrary for the jury to cast this testimony aside. Davis v. Porter, 153 Ark. 375, 240 S. W. 1077; Kansas City Sou. Ry. Co. v. Griffin, 141 Ark. 625, 217 S. W. 801; Kansas City Sou. Ry. Co. v. Whitley, 139 Ark. 255, 213 S. W. 369; Steptoe v. St. Louis, I. M. & Southern Ry. Co., 119 Ark. 75, 177 S. W. 417; St. Louis, I. M. & Sou. Ry. Co. v. Belcher, 117 Ark. 638, 175 S. W. 418; St. Louis, I. M. & Sou. Ry. Co. v. Spillers, 117 Ark. 483, 175 S. W. 517; St. Louis, I. M. & Sou. Ry. Co. v. Humbert, 101 Ark. 532, 142 S. W. 1122; St. Louis, I. M. & Sou. Ry. Co. v. Ramsey, 96 Ark. 37, 131 S. W. 44, Ann. Cas. 1912B, 383; Paragould & M. Ry. Co. v. Smith, 93 Ark. 224, 124 S. W. 776; St. Louis S. W. Ry. Co. v. O’Hare, 89 Ark. 120, 115 S. W. 942; St. Louis & S. F. Ry. Co. v. Minor, 85 Ark. 121, 107 S. W. 171; Kansas City Sou. Ry. Co. v. Lewis, 80 Ark. 396, 97 S. W. 56; Kansas City Sou. Ry. Co. v. Cash, 80 Ark. 284, 96 S. W. 1062; Lane v. Kansas City So. Ry. Co., 78 Ark. 234, 95 S. W. 460; St. Louis, I. M. & So. Ry. Co. v. Landers, 67 Ark. 514, 55 S. W. 940; Kansas City, F. S. & M. Ry. Co. v. King, 66 Ark. 439, 51 S. W. 319; Railway v. Shoecraft, 53 Ark. 96, 13 S. W. 422.
According’ to Nelson’s testimony, lie saw the dog in a place of safety between the tracks and four or five feet from the track on which the caboose was standing. Nelson saw the dog standing there as the engine and caboose started backing np. He was keeping a lookout, and Was keeping it efficiently; indeed, he was the only person on the train who conld have kept it. Witness did not see the dog start across the track, but he heard it yelp, and, as he looked, he saw it “kick back out from under the train.”
The case is governed by that of Nelson v. Missouri Pacific R. R. Co., 172 Ark. 1053, 292 S. W. 120. In that cáse a dog ran, according to the finding of the .jury, under a train after the engine had passed it. In that case the plaintiff had requested the court to charge the jury that, if the dog was killed by the train, it was immaterial as to what part of the train struck the dog. In affirming the action of the trial court in refusing this instruction we said: “Under these circumstances (that of a dog running under a moving train) it would not do to say that it was immaterial that cars following the engine killed it, for no lookout, however constant or effective, could have prevented the dog from running under the train. To hold otherwise would render a railroad company liable for any animal killed, regardless of the circumstances under which it was killed, and the law has never been so declared. ’ ’
The judgment must therefore he reversed, and the cause will he remanded for a new trial. | [
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McHakey, J.
In October, 1927, the Lonoke chancery court granted Mary Belle McLaughlin, wife of appellant, a decree of divorce from him and awarded to her the sura of $15 per month for the use and benefit of their minor child, Juanita, to be paid to the clerk of the court monthly and by him delivered to said Mary Belle McLaughlin. Only two or three of these payments were ever made and they were paid direct to her and not to the clerk.
After the divorce, Mrs. McLaughlin and Juanita who was then about six years of age, went to live in Tennessee with her father, who was also the father of appellee, where they were cared for and supported by him until Mary Belle’s death in 1936, and he thereafter supported and educated Juanita until his death in 1938, when the latter went to live with appellee and has since been supported by her.
In April, 1938, appellee qualified as the guardian of Juanita in Tennessee for the purpose of assisting appellant in clearing the title to some real estate which he owned, and she as guardian executed the necessary instruments for this purpose. Thereafter, on June 22, 1938, nearly eleven years after the granting of said divorce and about two and one-half years after Mary Belle’s death, appellee filed her intervention in the divorce case, praying recovery from appellant of $1,905, being the alleged amount of unpaid awards made in said divorce decree up to and including June 1, 1938. Appel-lee was thereafter appointed administratrix of her sister’s estate and filed a like intervention in said case as she had as guardian. Appellant demurred to the jurisdiction of the court, which was overruled, and he filed an answer with a general denial and a plea of statute limitations.
Trial resulted in a decree awarding judgment against appellant in the sum of $735, with interest from September 1, 1939, until paid at 6 per cent, per annum, which covered the accrued installments for three years prior to the institution of the suit and one year and one month thereafter, iip to the majority of the child. From this judgment there is an appeal and cross-appeal.
This case has given us a great deal of concern as to just what the applicable law is to these peculiar facts, which are not in dispute. Appellant contends that, upon the death of Mary Belle McLaughlin, the chancery court lost jurisdiction of the subject-matter of the original divorce action, because the action abated with her death. It will be remembered that the divorce decree was granted October 7, 1927; that Mary Belle McLaughlin died January 31, 1936; and that appellee intervened in the divorce action on June 22, 1938. This is not a suit on the judgment in favor of Mary Belle McLaughlin for the support of the child, granted in the divorce action, but it is an attempt by appellee as guardian to intervene in the old action and to require appellant to make the payments to her that were ordered to be made to Mary Belle. There can be no doubt that on the death of Mary Belle payments that otherwise would have accrued in the future stopped. Up to her death appellant’s liability for tbe support of Ms cMld was limited to the decree, but after her death his common-law liability for the support of his child intervened and supplanted the decree. In 19 C. J., p. 260, it is said: “Upon the death of the mother to whom the allowance (for the support of the child) was directed to be paid the decree becomes ineffective, the husband’s duty to support the child then becoming' absolute.” The author cites to support the text the case Matter of Robinson, 17 Abbotts Prac. (N. Y.) 399, which report of the case follows: “In 1853 Eeuben B. Eobinson was divorced from his wife, on the ground of adultery committed by the husband. The custody of the children was given to the mother, and the sum of $200 was ordered to be paid to her for the support of each of them during minority. The mother having deceased, the children now petitioned the court for the appointment of a trustee, to receive and pay over the moneys which would have been paid to the mother for their support.
“This was opposed by the father, on the ground that the order of the court expired with the death of the mother. He stated that he was willing to support the children at his own house, and claimed that he was entitled to their custody.
“Held, that so long as the .mother lived the judgment operated to give her the custody of the children, and'to compel the father to provide her with the means for their support. Beyond that period the judgment ceases to have any effect. The father’s rights over the children being restored, as. he is bound to provide for all their wants, he is also entitled to their care and custody. The statute also shows that the petitioners are in error in supposing that a trust was created by the judgment of divorce, which continued for the benefit of the children after their mother’s death. By the provisions , of the revised statutes in regard to such payments (2 Eev. Stat., 148, 58), the provision for the children is to be made by an order, or between the parties. The order or judgment is only to be between the parties — husband and wife. When thát' rélátion is terminated by the death of- either, the object of the order and its vitality ceases, and the surviving party is restored to his or her natural rights.
“The prayer of the petitioners-is denied.”
In Barry v. Sparks, 27 N. E. 2d 728, 128 A. L. R. 983, decided by the Supreme Judicial Court of'Massachusetts on May 31, 1940, where the court was “concerned with the effect on the common-law rights and obligation of a father when, by a decree entered in divorce proceedings, custody of'his child is given to a third party, and payments by the father for the support of the child are ordered,” Mr. Justice Dokahue, speaking for the court, said: “But when such a decree has been entered, upon the death of one of the parents (in the present case, the mother) the divorce decree ceases to have any further continuing effect, Stone v. Duffy, 219 Mass. 178, 106 N. E. 595; Leclerc v. Leclerc, 85 N. H. 121, 155 A. 249, 74 A. L. R. 1348, at least when, as here, the decree makes no provision for its continuance beyond the lives of the parents. Compare Southard v. Southard, 262 Mass. 278, 159 N. E. 512. The rights and the obligations of a father with respect to a minor phild after the death of his divorced wife are those of a surviving parent, unaffected by the decree which had been entered in the divorce proceedings. Stone v. Duffy, 219 Mass. 178, 106 N. E. 595; Clarke v. Lyon, 82 Neb. 625, 118 N. W. 472, 20 L. R. A., N. S., 171. When the divorced wife of the defendant died there was no longer any effective decree of court depriving the father of the custody of the child and relieving him from the common-law duty to support it. The father was then entitled to the custody of the child, Schammel v. Schammel, 105 Cal. 258, 261, 38 P. 729, unless it should be shown that he was unfit to be its custodian or that the best interests of the child required otherwise. People v. Gorman, 70 Colo. 544, 203 P. 661; Rallihan v. Motschmann, 179 Ky. 180, 200 S. W. 358. The right of all parents to the custody of their children is subject to such conditions. See Richards v. Forrest, 278 Mass. 547, 180 N. E. 508; Perry v. Perry, 278 Mass. 601, 180 N. E. 512. The defendant’s common-law right to the custody of his child revived and his obligation to support it again arose when the divorce decree became ineffective upon the death of the mother. See Yates v. Yates, 165 Wis. 250, 161 N. W. 743; Commonwealth v. Micheli, 258 Mass. 89, 154 N. E. 586.”
In Leclerc v. Leclerc, 85 N. H. 121, 74 A. L. R. 1348, 155 Atl. 249, George T. Leclerc secured a divorce from his wife, Emelda Leclerc, and the custody of two of his infant children was awarded to him, and two others were awarded to her. George thereafter died and his sister filed her petition in the divorce action for the custody of the two children which had been awarded her brother, that the divorce proceedings “be brought forward and that the order relating to the custody of the children formerly made therein be modified.” The petition was granted by the lower court and the defendant, the former wife, excepted to the jurisdiction of the court, and an order was made changing or modifying the former decree as to the custody of the two given to the husband, and they were committed to a third person. On appeal, the Supreme Court of New Hampshire held that divorce proceedings abate upon the death of either party, and that it may not thereafter modify its order with respect to the custody of a child for the purpose of dealing with the changed situation. Under such condition only the probate court had jurisdiction by the appointment of a guardian.
It appears to us, therefore, that the effect of these cases is that the divorce action between appellant and Mary 'Belle McLaughlin abated on her death in 1936, and that an intervention by appellee in that action in the chancery court in 1938 to recover the accrued installments was unavailing, the chancery court being without jurisdiction. Whether appellee has any remedy and, if so, in what court it may be enforced, we do not decide.
The judgment will be reversed, and the cause dismissed. | [
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Smith, J.
Ossie Langley, Charley Langley, Gerald Ralston and Claude Lindsey were jointly indicted and tried upon the charge of having robbed Mary Jane and Steve Jones. All were convicted and sentenced to the penitentiary, but only Claude Lindsey has appealed.
It appears that Ossie Langley and Gerald Ralston had signed written confessions, in which they admitted their guilt and detailed the circumstances under which the crime had been committed. These confessions were to the effect that the robbery was planned by the four persons charged with its commission; that appellant, Claude Lindsey, furnished the car and drove the party to the Jones home, but that appellant remained with the car while the others went to the Jones home and committed the robbery. These confessions were admitted in evidence over the objection and exception of appellant, Claude Lindsey.
A signed statement made by appellant was also admitted in evidence, to the effect that he was requested by Charley Langley to drive him and certain others from Fayetteville to Madison county. He said he had no gas for his car, but Ossie Langley and Gerald Ralston agreed to and did buy the gasoline. They drove beyond St. Paul, in Madison county. It is further recited in this signed statement: ‘‘When we got to the place, Ossie told me to stop, and he got out. He asked me if I wasn’t going with him and I told him that I didn’t know anyone there and that I was going to stay in the car. He then asked Charley Langley and (Jerald Ralston if they were going with him and they both got out of the car. and went with him. The three were gone about an hour, when they came hack and said that they had had some trouble. I asked Ossie what happened; and he told me that it didn’t amount to much. I kept questioning him about it and he told me that he had been shot.”
Appellant did not repudiate this statement in his testimony at his trial. His testimony was to the effect that the car was not driven to the Jones home, but near there; that he was not told, and did not know, what his associates proposed to do; that he was not told of their intention to commit a robbery, and did not know that they had done so until after the party had separated. He made no explanation of his lack of knowledge about the circumstances under which Langley was shot.
The court defined an accomplice, and told the jury that an accused person could not be convicted upon the uncorroborated testimony of an accomplice. In the same instruction, the court further charged the jury that “You are further instructed that a voluntary confession made to one who is riot an accomplice is sufficient corroboration, and the confession here can be considered only by you as evidence against the one who made it.”
There is no question that the robbery was committed. Mary Jane Jones, one of the persons robbed, testified that although the robbers were masked, she recognized Ossie and Charley Langley, who are her nephews, as being two’ of them.
Reversal of the judgment of conviction of appellant, Claude Lindsey, is asked upon two grounds: (a) that it was error, as to him, to admit the confessions of Ossie Langley and Gerald Ralston, and (b) that, without these confessions, the testimony is insufficient to sustain his conviction.
The confessions of Langley and Kalston were made after the completion of the criminal enterprise, and in the absence of appellant, and the law is definitely settled that where a crime is committed and the criminal enterprise of the conspirators has ended, the acts or declarations of one conspirator are thereafter inadmissible against his co-conspirators. Hammond v. State, 173 Ark. 674, 293 S. W. 714. But it must be remembered that the parties who made the confessions were also on trial, and the confessions were, of course, admissible against the parties who made them, and the jury was instructed that “The confessions here can be considered only by you as evidence against the one who made it.”
It is argued that the jury could not consider the confessions for any purpose without considering them against appellant. But this does not necessarily follow. The jury was told to do so, and we perceive no reason why they may not have done it. The jury might well have asked, in their deliberations, and have answered the question, whether, aside from the confessions, there was evidence of appellant’s participation in the crime. This they were required under the instructions to do before finding appellant guilty, and we conclude there was no error in the instruction. Johnson v. United States, 82 Fed. 2d 500; State of New Jersey v. Dolbow, 117 N. J. L. 560, 189 Atl. 915, 109 A. L. R. 1488.
But was there sufficient testimony to establish appellant’s connection with the crime aside from the confessions? We think there was. By his own admission, appellant drove the parties, in his own car, to a point near the scene of the commission of the crime, and remained with the car for an hour or more while the crime was being committed. Driving to the Jones home, some thirty miles or more, was an act essential to the commission of the crime, and waiting — possibly watching- — at the car may have been another, and the naive statement that Ossie Langley had been shot, and that “I kept questioning him about it and he told me he had been shot,” lends strong support to the conclusion that appellant did not tell all he knew. Like the case of one found in the possession of property recently stolen, which the thief does not explain, the jury here may have concluded that appellant had acquired too little information for the opportunities afforded, and have believed so much of his own statement as placed him near the scene of the crime, while disbelieving his denial that he knew the crime was being’ committed while he. was waiting at the car. It was not essential that it be shown that appellant was present at the place of that actual commission of the crime. It is sufficient if he had conspired to commit it and had aided and abetted its commission by driving the robbers to the point where it could be and was committed, and we think the jury was warranted in finding that this was the only reasonable conclusion to be drawn from the facts herein recited.
The judgment, must, therefore, be affirmed, and it is so ordered. | [
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Holt, J.
In 1933 appellee, Lincoln National Life Insurance • Company, acquired title to fractional north one-half of the southeast quarter, 15-18-26, containing 48.94 acres. This land lies within the boundaries of the Grarland Levee District in Miller county,'Arkansas.
This property, having become delinquent for the levee tax assessments for the year 1931, was foreclosed by the levee district, a decree of foreclosure obtained, and the levee district acquired deed April 25, 1935, under the following description: “Pt. Frl. N% of the SE*4, 15-18-26, 48.94 acres,” the description used throughout this first foreclosure proceeding.
March ’ 23, 1936, the Grarland Levee District again filed suit in the Miller chancery court to foreclose delinquent levee assessments for the years 1932 and 1933 against this same land, describing, it as the ‘ ‘ Frl. N% of the 'SE*4, 15-18-26, containing 48.94 acres. ” Under the decree of the court, sale of this land was made on June 13, 1936, and July 23, 1936, commissioner’s deed was issiied to the levee district.
October 7,1936, the Grarland Levee District sold and conveyed a part of this land, the “NW]4 of the SE%? 15-18-26, 40 acres,?.’ to Nay Pratt, for $123.10, the deed reciting that this was'the amount of taxes, penalties, interest, and costs, due'to the district on the 40 acres thus conveyed for the years 1931 to 1935, inclusive.
November 10, 1936, Nay Pratt conveyed the - said northwest quarter of the southeast quarter, 15-18-26, 40 acres, to appellant, J. R. Killian.
February 27, 1937, appellee, Lincoln National Life Insurance Company, filed petition in the Miller chancery court to redeem the northwest quarter of the southeast quarter, 15-18-26, 40 acres, the land conveyed by Pratt to appellant, Killian. This petition was styled Garland Levee District and Stuart Wilson, Receiver, v. Delinquent Lands, and was in the nature of an ex parte proceeding. Appellant Killian was not made a party and had no notice of the proceeding. At the time the petition was filed appellee, insurance company, deposited with the clerk of the court $130.24, which represented the $123.10 paid by Nay Pratt to the levee district as consideration for his deed, together with 10 per cent, interest thereon from the date of the deed until the redemption deposit was made.
On the same day this petition was filed, February 27, 1937, a hearing was had and the court decreed that appellee had the right to redeem the northwest quarter of the southeast quarter, 15-18-26, from the sale for delinquent levee district assessments February 28, 1935, and that the two-year redemption period had not expired, ordered the clerk to issue redemption receipt to appellee showing redemption of the land from the sale to Nay Pratt and that the redemption money, $130.24, be paid to Nay Pratt. It was further decreed that the deed from the levee district to Nay Pratt to the land be canceled and set aside.
November 12,1938, appellant, J. R. Killian, filed suit in the Miller chancery court, in which he prayed that the decree of the court of February 27, 1937, be set aside for the reason that it was an ex parte proceeding of which he had no notice, and was not binding upon him.
Killian further alleged that appellee’s offer to redeem was not sufficient because it did not offer to redeem the whole of the tract of land owned by it and that the amount deposited with the clerk of the chancéry court to redeem was insufficient and prayed that his title to the northwest quarter of the southeast quarter, 15-18-26, acquired from Pratt, be quieted.
Appellee answered alleging ownership of the land, its redemption from the levee tax sales, and prayed that the deed to Pratt and from Pratt to Killian, be canceled, that title be quieted in it, and for possession of the property.
January 30, 1939, by amended answer of appellee, Nay Pratt was made a party to the suit. Upon a trial the court found that the levee district’s, foreclosure sale of February 28, 1935, was void for insufficient and void description of the land sold, but that the sale for the delinquent taxes of 1932 and 1933 made on June 13, 1936, was made under a proper description and was a valid sale.
The court further found that appellee had properly redeemed the land in question within the two year redemption period allowed under the statute and entered an order quieting appellee’s title to the property, granted possession, and directed that a writ of assistance issue to place it in possession thereof. This appeal followed.
The grounds upon which appellant relies for reversal are: That appellee did not go about redeeming the property in the proper manner, the contention being that appellee attempted to redeem by filing an ex parte petition in the Miller chancery court without giving appellant and the levee district notice thereof, and therefore the action of the court in that proceeding was not binding upon appellant; that appellee did not offer to redeem the whole of the tract of land owned by it; and that the amount deposited with the clerk of the court to redeem was insufficient.
It is obvious, we think, (as the parties seem to concede) that the first foreclosure sale of appellee’s land in 1935 under the description “Pt. Frl. N% of the SE]4, 15-18-26,” was void for the reason that the description under which the foreclosure was had was insufficient and void.
This court has many times held that similar descriptions using the word “Pt.” invalidates the description. It was so held in Rhodes v. Covington, 69 Ark. 357, 63 S. W. 799, and in the later case of Northern Road Improvement District of Arkansas County v. Simmerman, 188 Ark. 627, 67 S. W. 2d 197, where it is said: “It has been frequently and definitely decided that deed to a tract of land described as ‘pt.’ or ‘part of’ has a void description, being void because of its indefiniteness. Moore v. Jackson, 164 Ark. 605, 262 S. W. 653; Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, 1 A. L. R. 1225; Cotton v. White, 131 Ark. 273, 199 S. W. 116; Covington v. Berry, 76 Ark. 460, 88 S. W. 1005; Dickinson v. Ark. City Imp. Co., 77 Ark. 570, 92 S. W. 21, 113 Am. St. Rep. 170; Hewett v. Ozark White Lime Co., 120 Ark. 528, 180 S. W. 199.”
The second foreclosure proceeding in which the sale, to the levee district, of the land in question, was had on June 13, 1936, under the following description: “Frl. N% of the SE%, 15-18-26,” was a valid sale.
The deed of the levee district to Nay Pratt October 7, 1936, to 40 acres of this land under the following description: “NWhi of the SE1/^, 15-18-26,” conveyed good title to Pratt, but subject to appellee’s right to redeem within a period of two years from the date of either of the sales to the levee district, and the tender was made within two years from the first sale.
Appellee deposited with the clerk of the Miller chancery court the amount necessary to redeem on February 27, 1937, well within the period of two years from the date of either sale, as provided by the act creating the Garland Levee District. Act 311 of 1913, as amended by act 56 of 1917, vol. 1, p. 235, § 7.
It appears that appellee attempted to redeem by filing an ex parte petition in the Miller chancery court, as indicated, supra. While this proceeding was not binding upon appellant for the reason that he was not made a party and had no notice, this procedure was unnecessary to effect redemption by appellee. Since the act creating the Garland Levee District provides no specific procedure for redemption,- we must look to our general statute (% 13890, Pope’s Digest) which provides the method of redemption.
Section 13888, Pope’s Digest, provides that “all taxes or assessments levied on the real property in any . . . levee district ... in this state, if not paid on or before the 10th day of April of the year in which same is due, . . . shall be delinquent . . .”
Section 13890 provides that “anyone desiring to redeem any of said delinquent lands, . . . shall apply to the clerk of the chancery court and upon the payment of the tax, penalty, interest and costs the said clerk shall issue a redemption certificate . . . and shall mark opposite said tract by Avhom redeemed and the date of such payment. ...”
It is our view, therefore, that appellee by depositing the proper amount with the clerk (the amount necessary to pay the tax, penalty, interest and- costs) within the statutory period of two years, perfected his right to redeem the property in question. Appellee was not required to notify anyone of this redemption payment to the clerk, nor as has been indicated, was any court proceeding necessary to effect redemption.
It will be observed that the deed of the levee district to Nay Pratt conveying the northwest quarter of the southeast quarter, 15-18-26, 40 acres, lacked 8.94 acres of conveying the district’s title to all of the “Frl. N% of the SE%, 15-18-26.” It appears that the levee district segregated this 40-acre tract sold to Nay Pratt and apportioned to it its proportionate part of the taxes, penalties, interest, and costs, of the amount assessed against the whole tract of 48.94 acres in ascertaining the amount of $123.10 which Pratt paid the district for his deed. This is a matter of which Killian may not complain as he is interested only in the northwest quarter of the southeast quarter, 15-18-26, and this is the land which the insurance company redeemed.
Redemption statutes should be construed liberally. Wyatt v. Beard, 179 Ark. 305, 15 S. W. 2d 990.
Here the record reflects that appellee deposited with the clerk of the court the amount Nay Pratt had paid the levee district for the land in question, together with interest .from the time of the payment to the district until the deposit was made. We think appellee did all that was required of it when it deposited the amount required under the statute, to redeem from the sale by the district to Nay Pratt.
Pratt and his vendee, appellant, J. R. Killian, acquired this land with full notice and knowledge of all rights of appellee, the owner, to redeem. Pratt could convey to appellant Killian no better title than he possessed.
Finding no error, the decree is affirmed. | [
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McHaNey, J.
Appellant is a resident, qualified elector and property owner of the City of Camden, a city of the first class. Appellees, other than the city, are its mayor and aldermen. On September 5, 1940, the city council adopted an ordinance submitting to the voters of the city three separate and distinct proposed improvements to be constructed and for the issuance of bonds under Amendment No. 13 to the constitution to pay the cost of such improvements, as follows: (1) $8,000 for the construction, widening and straightening of streets and alleys in the city; (2) $7,000 for the construction of sewers and comfort stations; and (3) “$30,000 for the purchase, development and improvement of a public park and flying field located either within or without the corporate limits of the city. ’ ’
Pursuant to said ordinance an election was held on October 8,1940, at which a majority of the electors voting therein voted in favor of each of the propositions and for bond issues in the amounts stated.
Appellant brought this action to enjoin the appellees from issuing bonds for the 3rd proposition, that is for the public park and flying field, on the ground that said ordinance and the vote thereon, authorizing the purchase, development and improvement of a public park and flying field is void and unauthorized by said amendment No. 13 to the constitution, because said ordinance and vote “includes two separate and distinct projects for which the bonds are authorized to be sold, namely, the purchase, development and improvement of a public park and the purchase, development and improvement of a flying field.” In other words, it is alleged that a public park is a separate and distinct project, having no relationship to a flying field, and that, under said Amendment, the two could not be combined and voted on with a single bond issue. It was further alleged that appellees planned to acquire a tract of land of approximately 400 acres, about two and one-half miles outside the corporate limits of the city, on which they proposed to develop and improve a flying field and to locate, install and maintain recreational facilities for the people of the city in the nature of a public park. To a complaint alleging- these and other related facts, a demurrer was interposed, sustained, and, upon appellant’s election to stand on his complaint, it was dismissed, and this appeal followed.
Amendment No. 13 provides that cities of the first and second class, by and with the consent of a majority of the qualified electors of the municipality voting on the question at an election held for the purpose, may “issue bonds in sums and for the purposes approved by such majority at such election as follows: . . .; for the purchase, development and improvement of public parks and flying-fields located either within or without the corporate limits of such municipality; . . .” Another provision in said amendment, which is quite lengthy with numerous provisions, is: “Said election shall be held at such times as the city council may designate by ordinance, which ordinance shall specifically state the purpose for which the bonds are to be issued, and if for more than one purpose, provisions shall be made in said ordinance for balloting on each separate purpose; : . .” This sentence or clause in the amendment furnishes the basis for this lawsuit.
We think the trial court correctly sustained the demurrer and dismissed the complaint, as it cannot be said, as a matter of law, that the two subjects mentioned in the ordinance are separate and distinct, without relation, each to the other, but, on the contrary are separate “parts of a single plan, and, as combined, were so related as to constitute a single purpose.” The quoted language is taken from Shull v. Texarkana, 176 Ark. 162, 2 S. W. 2d 18, where the ordinance provided “that the building to be erected should contain an auditorium, a fire station, a chamber for the municipal court and city council, a jail, with offices for the police and city officers, ’ ’ and it was held all were parts of a single plan or purpose. We have had the same or similar questions presented in a number of cases arising under this amendment. See Atkinson v. Pine Bluff, 190 Ark. 65, 76 S. W. 2d 982; Rhodes v. City of Stuttgart, 192 Ark. 822, 95 S. W. 2d 101; Railey v. City of Magnolia, 197 Ark. 1047; 126 S. W. 2d 273; Todd v. McCloy, 196 Ark. 832, 120 S. W. 2d 160. These cases illustrate the way the same question has arisen under other provisions of the amendment.
In view of the fact that these improvements are to be located upon the same tract of ground and are both intended for the betterment of the general welfare of the city, it cannot 'be said, contrary to the implied finding in the ordinance, that they are so wholly unrelated as to form separate and distinct improvements. Another matter that lends strength to this view is the grouping of the two within the same punctuation in the amendment and the connection of the two by the framers with the conjunction “and.” It would appear reasonable and logical also that the location of a flying field adjacent to a public park would render the latter very much more interesting and attractive to the general public than if widely separated. The hazards incident to the taking off and landing of planes are unsubstantial and are more than offset by the public interest.
The decree is correct, and it is affirmed. | [
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Smith, J.
On April 12, 1939, B. Frank Williams, doing business as Williams Bus Line, filed an application with the Arkansas Corporation Commission, under the provisions of <§,§ 2023, et seq., Pope’s Digest, for a permit, or certificate of convenience and necessity, to-transport passengers, baggage, newspapers, and ex-, press, between Osceola and Little Rock over the following State highways: On 40, from Osceola to Marked Tree, 35 miles; on 63, from Marked Tree to junction of No. 14, 5 miles; on No. 14, from junction of 63 to Newport, 53 miles; on 67, from Newport to Little Rock, 98 miles.
At the hearing of the application, the Missouri Pacific Railroad Company, the Missouri Pacific Transportation Company, the Mathis Bus Line, and the Arkansas Motor Coaches, intervened, and protested the granting of the application, on the ground that no public convenience or necessity would be served by granting the application. The application was granted, and from that order the Railroad Company, the Transportation Company, and the Mathis Bus Line appealed to the Pulaski circuit court.
A motion to dismiss the appeal was filed in the circuit court, and there overruled, but the action of the Corporation Commission in granting the permit was approved, from which order and judgment is this appeal.
The motion to dismiss the appeal has been renewed here, and in support of that motion the case of Jones Truck Lines Co. v. Powell Brothers Truck Lines, Inc., 196 Ark. 759, 119 S. W. 2d 1032, is cited and relied upon.
The order of the Corporation Commission granting the permit was entered of record July 31, 1939, and appellants prayed an appeal on August 21, 1939, and on November 23, 1939, filed a transcript of the proceedings before the Corporation Commission in the office of the circuit clerk of Pulaski county.
It is apparent that the instant case is distinguishable from the Jones Truck Lines case, supra, in that, here the appeal was prayed within thirty days, the time allowed by law for that purpose; whereas, in the Jones case, supra, it was sought to extend that time by filing with the Commission a petition for rehearing. It was there held that a motion for rehearing was no longer required, and that the time for appeal could not be thus extended.
It is further insisted that the appeal should be dis: missed for the reason that it was not prosecuted with the diligence required by § 2019, Pope’s Digest. That section provides that when an appeal has been prayed “The secretary of said Commission shall then at once make full and complete transcript of all proceedings had before such commission in such matter and of all evidence before it in such matter, including all files therein, and deposit same forthwith in the office of the clerk of said circuit court, . . . .” The insistence is that this was not done forthwith.
The hearing before the Commission began May 10, 1939, and was continued from day to day with intervening adjournments, which prevented the hearing from being continuous, until 6:30 p. m., June 2,1939, at which time the application was taken under advisement, and it was not until July 31, 1939, that the final order of the Commission was made and entered upon its records. Many witnesses from various points along the routes proposed to be served testified, and- many exhibits were offered in evidence. These consisted, in part, of timetables, tariff sheets of fares, and compilations of passengers carried, showing the service rendered and the ability of appellants, with their present facilities, to accommodate and carry many more passengers than the number which had been transported.
There appears to have been no delay for which appellants were responsible. The proceedings before the Commission were reported stenographically by “Dorothy Dixon, Reporter for the Arkansas Corporation Com mission,” and her certificate as such to the transcription of her notes was not made until November 1, 1939. The certificate of the Secretary of the Commission to the transcript required by the portion of § 2019, Pope’s Digest, copied above, was not made until November 18, 1939, and the transcript, as certified by the Secretary of the Commission, was filed with the clerk of the circuit court on November 23, 1939, only five days later.
In the case of Lincoln v. Field, 54 Ark. 471, 16 S. W. 288, Justice Hemingway defined .the word forthwith as follows: “Webster defines forthwith as meaning: ‘Immediately, without delay, directly,’ while Worcester gives the same definition, omitting ‘directly.’ In this senáb if an act is directed to be done forthwith, it seems' to-exclude the idea of other acts intervening between the direction and its execution. But as some time is necessary to the doing of everything’, varying in length with the thing to be done, the word has in law received a more liberal interpretation. Bouvier’s definition is, ‘As soon as by reasonable exertion, confined to the object, it may be accomplished.’ This seems to be the accepted legal sense of the word.”
We conclude that the transcript had been deposited forthwith in the office of the circuit court clerk, within the meaning of § 2019 Pope’s Digest.
In the order granting the application, the Commission reviewed the testimony, and made findings of fact thereon. Many of the witnesses — and there were 34 of them — who testified in behalf of appellee, expressed the opinion that the additional bus service which Williams proposed to-furnish was required as a matter of public convenience and necessity; while all of the 58 witnesses, residing at towns along the route Williams proposed to serve, who testified in behalf of appellants on this subject, expressed the contrary, opinion. There was also offered in evidence, resolutions by various civic clubs in cities and towns along the route Williams proposed to serve, protesting thé granting of the permit, upon the ground that the public convenience and interest did not require its issuance.
The Missouri Pacific Railroad Company and the Missouri Pacific Transportation Company serve only that portion of the proposed route of the Williams Bus Line extending from Newport to'Little Rock; while the Mathis Bus Line served a portion of the Williams’ route in Mississippi, Poinsett and Craighead counties.
The Mathis Bus Line had discontinued its service, but had obtained the consent of the Commission to do so, upon the representation that on account of the condition of the highways covered by its permit it was unable to maintain service. Permission to suspend service was given by the Commission in January, and the service had not been resumed when the Mathis Bus Line filed its protest against the issuance of a permit to Williams, although it professed its willingness to do so, and its ability to resume service and to furnish such service as the Commission might direct. It appears, however, that its present equipment is in bad condition, due, as it explained, to the condition of the roads over which it operated. We do not understand that the Commission has canceled the Mathis Bus Line permit. Whether it should permit the resumption of service is a question not presented on this appeal. What was done, as far as that Company is concerned, was to grant a permit to Williams to operate a bns line over a part of the route covered by the Mathis permit. Without further review of the testimony, we announce our conclusion to be that, this portion of the Commission’s order should be approved.
The circuit-court approved the Commission’s order in its entirety, and under the judgment of that court the Williams Company would be entitled to the permit applied for; but in our opinion it should only be granted from Osceola to Newport.
This appears to be the appropriate place in this opinion to discuss the power and duty of the circuit court and of this court when reviewing such orders by the Corporation Commission.
On behalf of Williams, who, with the approval of the Commission, has assigned his permit to Arroway Coaches, Inc., it is insisted, upon the authority of the case of Department of Public Utilities v. The Arkansas-Louisiana Gas Co., 200 Ark. 983, 142 S. W. 2d 213, that . . if the department’s order is supported by substantial evidence, free from fraud, and not arbitrary, it is the duty of the courts to permit it to stand, even though they might disagree with the wisdom of the order. In such a case our judgment will not be substituted for that of the Department.”
This quotation is' from the case just cited, but that was a case in which we were reviewing an-order of the Department of Public Utilities, and not an order made by the Corporation Commission. Our duty in reviewing these orders, and our power in doing so, is not the same in one case as in the other.
The opinion in the Utilities Department case, supra, quotes from paragraph (d) of § 2097, Pope’s Digest, the limitation upon the power of courts to review -orders of the Department of Public Utilities, which reads as follows: ‘ ‘ The review shall not be extended further than to determine whether the Department has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the complainant under the Constitution of the United States or of the State of Arkansas. ’ ’
Another duty and enlarged powers are conferred upon the courts in reviewing orders of the Corporation Commission. Section 2020, Pope’s Digest, defines the duty of this court in appeals to this court involving orders of the Corporation Commission as follows: “. . . hut the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper- and equitable.” In other words, the hearing here is de novo, which is not true in the review of orders made by the Department of Public Utilities.
When we have considered the testimony in this manner, we are impressed that no necessity exists for additional passenger service between Newport and Little Rock. One of the witnesses appearing before the Commission, a resident of Newport, testified that that city already had probably the best and most convenient transportation service of any city of its size in the State. The Missouri Pacific Railroad Company operates daily five trains each way between Little Rock and Newport. Not all of these trains stop at intermediate points, but some do. In addition, the Missouri Pacific Transportation Company operates daily three buses each way between these two cities, all of which do stop at intermediate points. There was a showing that at times all passengers could not be provided with seats; but this does not often occur. There was a showing also that the service rendered was not convenient to all persons along the route between Newport and Little Rock. In answer to this, it may be said that it would unquestionably be a convenience, and a very great one, to have afforded a bus service giving one the opportunity to leave one town for another when he pleased, just as he might do if he were traveling in his own private car. But this is not a necessity within the meaning of the law, which must be construed in its practical application to service of this kind.
At § 122 of the chapter on Motor Vehicles, 42 C. J., p. 687, it is said: “Where the proposed service for which a certificate is requested is to be rendered in a territory which is already served by another carrier, the commission must consider whether public convenience and necessity require further common carrier transportation service in that territory, and to this end must consider the adequacy of the service which is already rendered by the existing carrier, even though the service proposed to be rendered by applicant is different from that rendered by the existing’ carrier, with which it would come into direct competition. It must consider whether the public it is proposed to serve has or has not adequate' common carrier transportation service, and whether the additional service proposed to be rendered will result in more adequate or less, adequate service, since to warrant the licensing of additional public utilities for transportation purposes it must appear that the present serving facilities are inadequate and inconvenient to the traveling public, and that the proposed facilities will eliminate such inadequacy and inconvenience. ’ ’
Since the introduction of motor passenger buses, the subject of their control, and that of granting permits for their operation, have engaged the attention of many courts, and is constantly receiving attention. Many of these cases are cited in the briefs; but we shall attempt no review of them. One of the leading cases on the subject, which is cited in many other cases, is that of Chicago Railways Co. v. Commerce Commission, 336 Ill. 51, 167 N. E. 840. There is an extended annotator’s note to this case appearing in 67 A. L. R. 957, where many cases from many states are cited. These are summarized by the annotator in what he calls the general, rule to the following effect: “The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.”
The subject is extensively treated in Pond on the law of Public Utilities. In this late work the author says, at § 775, vol. Ill, that “The prime object and real purpose of commission control is to secure adequate sustained service for the public at the least possible cost, and to protect and conserve investments already made for this purpose. Experience has demonstrated beyond any question that competition among natural monopolies is wasteful economically and results finally in insufficient and unsatisfactory service and extravagant rates.”
In our opinion, the showing was not made that the public convenience and necessity required additional passenger service between Newport and Little Rook. The Commission made the following finding: “It is conceded and shown hv the testimony that both the Missouri Pacific Railroad Company and the Missouri Pacific Transportation Company are able and fitted financially and otherwise to provide ample and sufficient transportation facilities. It is shown by the testimony that the Missouri Pacific Transportation Company has additional passenger vehicles that can be brought into service if the occasion should require, and that they are financially able to provide additional transportation facilities to meet the public needs.”
The judgment of the circuit court will he reversed, and the cause remanded to that court, with directions to so modify the order of the Corporation Commission as to deny the application for a permit to operate, an ad- , ditional bus line between Newport and Little Rock, | [
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Grifein Smith, C. J.
In consequence of information filed by F. B. Clement, deputy prosecuting attorney, and an affidavit executed by D. M. Brown, each charging Jack Strickbine with the crime of assault with a deadly weapon, a warrant of arrest was issued by A. L. Henderson, justice of the peace. Trial to a jury resulted in a verdict that the defendant was guilty of assault and battery. He was fined $5. From this judgment there was an appeal.
There are no indorsements on the record showing that the appeal was perfected; nor does the judgment of the circuit court identify the charge upon which the defendant was tried other than through inferences arising from the form of verdict. The jury found Strickbine was guilty. His punishment was fixed at ten days in jail and a fine of $50. Judgment was pronounced and this appeal resulted. '
By act approved January 6, 1857, punishment for assault and battery is fixed at a fine not in excess of $200. There is a proviso that the section shall not be construed to apply to assaults and batteries of an aggravated character.
Aggravated assault is defined in Ballentine’s Law Dictionary as an assault where the means or instrument used to accomplish the injury is highly dangerous or where the assailant has some ulterior and malicious motive in committing the assault other than a mere desire to punish the person injured.
The punishment prescribed for one who assaults another with a deadly weapon, instrument or other thing, with an intent to inflict a bodily injury where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant ■disposition, is a fine of not less than fifty nor exceeding one thousand dollars, and imprisonment not exceeding-one year. The crime is classified as a misdemeanor.
Assault with intent to kill is a felony, punishable by imprisonment in the penitentiary for not less than one nor more than twenty-one years.
Appellant contends he was improperly tried in circuit court on a charge of aggravated assault because he had been tried in a justice of the peace court on a charge of assault with a deadly weapon and found guilty of assault and battery. Insistence is that the jury necessarily found that the defendant was not guilty of the greater crime. That Striokbine was tried in circuit court for assault with a deadly weapon is made clear by the form of verdict suggested by the court.
In State v. John Smith, 53 Ark. 24, 13 S. W. 391, it was held that a conviction of an aggravated assault in a justice’s court barred an indictment in circuit court for an assault with, intent to kill, under § 8, art. 2, of the constitution. Referring to the constitutional provision, Mr. Justice Hughes, speaking for the court, said: “There is no violation of this provision in trying a person for a higher offense who has been previously tried for a lower degree of the same offense, if the former trial did not jeopardize life or liberty.”
Since the essentials of an aggravated assault may be included in an assault with a deadly weapon, we think appellant should have been tried in circuit court on the charge on which he was convicted in the justice court— assault and battery. The jury in the justice court might have found him guilty as charged, and in that event could have assessed a prison .sentence. Hence, he had been tried once in circumstances involving his liberty. The constitution prohibits a second trial.
It does not follow, however, that in circuit court the jury was bound by the fine assessed in the justice court. Punishment may be in any sum not exceeding $200. It must be held, therefore, that the fine of $50 was legal if the evidence was sufficient to convict, and if no errors occurred in the trial. We have examined the evidence and it is substantial. The instructions complained of, and the questions to which exceptions were taken, were not prejudicial.
The state insists that former jeopardy must be pleaded, and points to the fact that this issue was not raised until motion for a new trial was filed. It is also contended that % 4230 of Pope’s Digest requires that on appeal the cause be tried de novo, ‘‘as if no judgment had been rendered.”
That part of Pope’s Digest referred to is § 357 of the Criminal Code, and is found in Title IX, Ch. II, deal ing with appeals from justice of the peace courts. Its exact language is: “Upon the appeal the case shall be tried anew as if no judgment had been rendered, and the judgment shall be considered as affirmed if a judgment for any amount is rendered against the defendant. . . .”
In Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154, it was said: “There is a. code provision as follows: ‘The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew and the former verdict cannot be used or referred to in evidence or argument.’ ”
Commenting on this statute, the court said: “No doubt that the granting of a new trial upon the application of the accused, on an offense of which he is convicted, places him in the same position as if no trial had been had, but if the section of the code above quoted meant to go further and provide that where the indictment charges several offenses or grades of offenses, and on the first trial the accused is convicted of one offense or grade of offense, and acquitted of another, the granting of a new trial places' him in the same position as to the offense or grade of offense of which he was acquitted as if no trial had been had, it is in conflict with the clause of the 9th section of the bill of rights of the constitution of 1868 which declares that ‘No person after having been once acquitted by a jury for the same offense shall be again put in jeopardy of life or liberty’, and the section of the code must be construed and administered by this paramount constitutional limitation.”
In construing the Johnson Case the headnote writer said: “Where the defendant was- indicted for murder in the first degree, tried and found guilty of murder in the second degree, it was an implied acquittal of the higher grade of homicide, and he could not again be put in jeopardy for that offense; and it is the duty of the court so to instruct the jury, whether the former acquittal is pleaded or not. ’ ’
In respect of the necessity of an affirmative plea of former jeopardy, the court said: “The record of the former implied acquittal of the appellant of murder in the first degree being before the court, in the very cause which it was trying a second time, it was the duty of the court to tell the jury that they could not find him guilty of that grade of offense, if such be the law, even if the appellant had not interposed a plea of former acquittal.” The theory of this principle is that the court is at all times cognizant of its proceedings. Atkins v. State, 16 Ark. 568.
In the instant case the circuit court acquired jurisdiction through appeal. Necessarily the record of the justice court was before it, and that record showed an implied acquittal of the defendant by a jury in the court of the justice of the peace.
Chief Justice English, speaking for the court, said in Marre v. State, 36 Ark. 222: “Most assuredly should the accused be tried in the circuit court, on appeal, for the same offense for which he was tried, and convicted before the justice.”
The case of State v. Brown, 131 Ark. 127, 198 S. W. 877, cited by appellee, is distinguishable. There the defendant was tried in a justice of the peace court on a charge of petit larceny. He was fined $10. The applicable statute provided fór a fine and imprisonment. The defendant appealed and moved the court to quash the judgment because a fine only had been imposed. It was held that § 2580 of Kirby’s Digest (now § 4230 of Pope’s Digest) brought up the entire record, and that the cause should proceed de novo, as though no judgment had been rendered.
The difference between the Brown Case and the case at bar is that Brown was convicted of the crime charged against him, but the jury failed to impose a part of the penalty made mandatory by law. In the instant ease Strickbine was tried on a-charge of assault with a deadly weapon, and convicted of a lower degree of assault.
The judgment of the circuit court in assessing a fine of $50 is affirmed. That part of the judgment imposing a jail sentence is reversed.
The Brown affidavit charged Strickbine and others with the crime of assault with a deadly weapon. The prosecuting attorney’s information charged Strickbine only.
The verdict was: “We, the jury, find the defendant guilty and fix his penalty at $50 fine and jail sentence of ten days.”
Pope’s Digest, § 2959.
Pope’s Digest, § 2960.
Pope’s Digest, § 2961.
The form suggested was: “We, the jury, find the defendant guilty and fix his punishment at a fine of not less than fifty nor more than one thousand dollars and a jail sentence for any period of time not to exceed one year.” [In a dissenting opinion in Wilson v. State, 162 Ark. 494, 258 S. W. 397, it was said: “But the law does not read "that an aggravated assault can be committed only with a deadly weapon.” The applicable statute was then quoted and is the one now appearing as § 2960 of Pope’s Digest — assault with a deadly weapon. Although this reference appears in the dissenting opinion, the entire court appears to have had the same statute in mind.]
“. . . no person, for the same offense, shall be twice put in jeopardy of life or liberty.”
The provision of the constitution of 1868 referred to, and the provision on the same subject in the constitution of 1874, are substantially the same.
The evidence wás that Strickbine hurled bricks at the object of his assault. | [
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HumphReys, J.
On September 13, 1938, an order was made and entered of record by the county judge of Woodruff county opening a strip of land eight and one- half miles long through certain lands (particularly describing them) in said county on the petition of J. W. ■Browning- and about ninety other persons. An order was also entered appointing J. W. Browning, Edward Woods and E. E. Werner to assess damages done by the easement to the land holders. On September 22, 1938, damages were fixed by the appraisers or viewers in favor of the landowners whose lands were proposed to be taken at one and one-half times the valuation of the lands as shown by the tax books per acre. The appraisers or viewers also fixed the center of the proposed road running through the lands of appellants.
On September 26, 1938, appellants on petition were made parties to the proceedings and prayed and were granted an appeal to the circuit court of said county.
The record reflects that the county court made another order opening a strip one and one-half miles long through the same lands as follows: ‘‘ On this 22d day of September, 1938, it is by the court ordered that the recommendation of the commission be accepted and adopted by the court, and it is by the court ordered and adjudged that said highway 60 feet in width and the lands necessary to open the highway to that width on the center line specifically described in the resolution be and the same is hereby declared to be a public highway 60 feet in width and the lands necessary to open the highway to that width on each side of the center line 30 feet making a road sixty feet in width beginning at the state highway running from McCrory to Beedeville at a point where said road curves north from the section line between sections 22 and 27 in township 8 north, range 2 west, in Games township and running east from said point of beginning between sections 23 and 26 in beginning of lateral ditch of Bayou De Yiew Drainage District No. 1 where said road shall jog to the south side of said ditch, thence along said ditch to west section line of section 25.
“Any landowner affected by this order shall file a claim properly verified, in the office of the county clerk, and he shall be allowed for an acre or fractional part of ■an acre the sum of one and one-half times the assessed value of the lands as shown on the tax books in Wood-ruff county. Construction to begin at once.
‘ ‘ The county clerk is ordered and directed to spread this order on the county court records and the resolution of the county highway commission is incorporated herein as a part of this order.”
Appellants were also made parties to the petition in that proceeding and prayed and were granted an appeal to the circuit court.
Motions were then made by appellants to cancel the orders of the county judge upon the ground that they were invalid for a number of reasons, and the court overruled the motions over the objections and exceptions of appellants.
The cause or causes were then tried by the circuit court, resulting in the rendition of the following judgment:
“On this 30th day of March, 1940, this cause comes on to be heard on the appeal of Mrs. Daisy Dowdle, Frank Powell and Andrew Comer from an order of the Woodruff county court made September 22, 1938.
“This cause is heard from the entire file sent up from the county court and all the evidence and exhibits; the appeal being taken in the time' and manner required by law; from all of which the court finds: That the order of the county court made on September 22, 1938, should be modified and the public road described in said county court order is hereby declared to be a public road, but the other parts of the order are declared invalid.” Then follows a description of the road as set out in the order of the county court.
“Any landowner affected by this order shall file his claim properly verified in the office of the county clerk. As the claims of landowners are affected by this order a certified copy of the same shall be delivered by the clerk of this court to the clerk of the lower court and shall be spread on the records of that court. The costs of this proceeding are adjudged against the respondents therein.”
From the judgment an appeal has been duly prosecuted to this court.
The proceedings in the county court for opening the proposed road were had and done under § 6968 of Pope’s Digest which is as follows:
“The county court shall have power to open new roads, to make changes in old roads as they may deem necessary and proper; the same shall be located on section lines as nearly as may be, taking into consideration the convenience of the public travel.
“If the owner of the land shall refuse to give a right-of-way or to agree upon the damages therefor, then such owner shall have the right to present his claim to the county court duly verified for such damages.
“All damages allowed under this act shall be paid out of any funds appropriated for roads and bridges, and. if none such, then to be paid out of the general revenue fund of the county.”
The constitutionality of this act was upheld by this court in the cases of Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, and McMahan v. Ruble, 135 Ark. 83, 204 S. W. 746. In both cases it was held that landowners should have notice and an opportunity to be heard as to the valúe of the land taken from them.
In the instant case an attempt was made by the county court to appropriate the lands in question by allowing the property owners damages in the sum of one and one-half times the assessed value of the lands. This was an arbitrary allowance contrary to § 6968 of Pope’s Digest. By reference to the judgment of the circuit court heretofore set out it will be observed that the cause was heard upon the file sent up from the county court and all the evidence and exhibits introduced in the trial in the circuit court, from which' the court found and declared the lands proposed to be taken under the order of September 22, 1938, to be a public road and further declared that the other parts of the order of the county court were invalid and then provided in the judgment the landowners might file and present their claims for damages duly verified to the county clerk.
In other words, as we understand the judgment rendered in the circuit court, it adopted the proposed road provided for in the order of the county court, hut declared the provision in the county court order that the property owners should have.as damages one and one-half times the assessed value of the lands as shown on the tax books in Woodruff county to be void.
The record in this case reflects that much evidence was introduced upon the issue of whether or not the proposed road was necessary, and the evidence upon this point was in sharp conflict. But evidence which is undisputed was introduced to the effect that there was no money available at the time the orders were made with which to pay damages to the landowners. The evidence showed that there was a total deficit in all the road fund amounting* to $25,217.48, and a net deficit in the general revenue fund amounting* to $26,404.32. The undisputed evidence shows that if the landowners permitted their lands to be taken under the orders of the county court or under the judgment of the circuit court they could not hope to recover any damages on their claims, if filed and presented, for about two or three years and maybe not then.
Pacts in the instant case show that allowance of any claim for damages would necessarily increase the county’s indebtedness beyond what it was at the beginning of the year, and therefore violate amendment No. 10.
In the case of Casey v. Douglas, 173 Ark. 641, 296 S. W. 705, this court said: “The county courts, when establishing new roads or laying out old roads under the authority of said § 5249 (§ 6968 of Pope’s Digest) cannot ignore any of the applicable provisions of the constitution, and, in exercising the power conferred upon it by that statute, cannot disregard the constitutional provision that ‘private property shall not be taken, appropriated or damaged for public use without compensation therefor, ’ nor disregard the mandates of amendment No. 11, but must exercise its authority in conformity with both the said provisions of the constitution as interpreted by this court.”
It was also said by this court in the ease of Independence County v. Lester, 173 Ark., at p. 796, 293 S. W. 743: ‘ ‘ The appellee is not concerned as to what governmental agency exercises the power of eminent domain, nor as to the particular fund out of which he is to be paid; his only concern here is, that he shall receive compensation; he is entitled to it. If the county courts cannot manage their financial affairs so as to provide compensation for damages to- landowners for their lands taken for public use, then, in such case, these courts are powerless to condemn the land.”
This is a direct appeal from judgments of the county and circuit courts attempting to condemn and take lands of appellants for public purposes in the face of the undisputed evidence that there is no money and will not be for a. number of years in any fund of the county of Wood-ruff with which to pay them for the lands or damages they might sustain by reason .of taking the lands. It is an attempt to override the constitution of this state which provides that private property shall not be taken for public use without compensation.
The judgment of the circuit court is reversed, and the cause is remanded with directions to the circuit court to cancel the county court orders. | [
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McIIaNey, J.
This action was instituted by appellee against appellants to cancel the State’s tax deeds issued to them, conveying the State’s title to the lands described in each of three deeds, for rents and to quiet title in him. The action was begun on January 21, 1939. The complaint alleged that he was the owner of all the lands therein described, by virtue of a deed from the Alliance Trust Company in 1939, which is of record in Desha county, and that said trust company acquired title thereto by virtue of the foreclosure of a deed of trust executed by a former owner, which deed is of record, and that his predecessors in title-have owned, occupied and paid taxes thereon for nearly a century. The land forfeited in 1933 for the nonpayment of the 1932 taxes and was sold to the State. Not having been redeemed, it was certified to the State, and, in 1936, the State Conveyed to appellants the three separate tracts here involved, except appellant, Harris, got his deed from the State in 1938. The complaint alleged ten different reasons why the forfeiture and sale to the State were void, and it is conceded' by appellants that the sale was void unless cured by act 142 of 1935. Separate answers denied the allegations of the complaint and raised the questions herein discussed.
Trial resulted in a decree for appellee in which the rents and profits owed by appellants were offset against their improvements and rendered judgments in favor of each appellant for taxes paid. As to certain of the lands, some 53 acres, it is agreed by appellants the forfeiture and sale were void for insufficient description.
For a reversal of the decree against them appellants first say that appellee has not proved title in himself. On this question the record discloses that appellee testified that he had purchased the land from the Alliance Trust Company and introduced his original deed which was handed the notary and was copied as an exhibit to his testimony. He also introduced an abstract of title showing title in himself and his predecessors in title from the G-overnment down to him, including a commissioner’s deed executed and approved in the foreclosure and sale to said trust company. A similar practice was followed by appellants who introduced their original tax deeds from the State as exhibits to their depositions which were copied and the originals withdrawn. No objection was made by appellants in the court below as to the manner of proof of ownership of appellee until February 16,1940, on the very day the court rendered its decree, but on that date they filed exceptions thereto. These exceptions were overruled in its decree by the court without giving any reason therefor, but the court might well have done so because they came too late — just as the case was submitted, whereas appellee’s deposition was taken on July 15, 1939. We think the court was justified in overruling the exceptions for this reason, if for no other. We think the objection now urged is as to the form of the proof and does not go to the merits of the controversy. The abstract shows title in appellee and it would work a substantial injustice to reverse the case because appellee failed to introduce the record of his deed and other muni-ments of title. Moreover, this is not a suit in ejectment where title must be deraigned from the Government, the State or a common source.
Appellants next contend that their title was confirmed and perfected by reason of act 142 of 1935. This act was repealed by act 264 of 1937, and this suit was not filed until January 21, 1939. It is conceded that the tax sale to the State in 1933 is void unless cured by said act 142, but, it is contended, that said act cured the defects and irregularities alleged in the complaint and that the State took a good and indefeasible title except the tract without a valid description, because of said act, which passed to appellants on their purchase from the State; that they acquired vested rights in said lands; and that if the repealing act is so construed as to give a retroactive effect as to rights vested before passage, it is unconstitutional and void under both the state and federal constitutions. It is conceded by appellee that the defects and irregularities alleged are such as would not justify the court in setting the tax sale aside under said act 142, if it were in force. We think the fallacies in the argument of appellant consist in the false assumptions that said act 142 cured defects and irregularities in all tax sales occurring prior to the passage of the repealing act 264 in 1937, and that appellants acquired vested rights under said act 142, having purchased said lands in 1936, prior to its repeal. Said act 142 provided that under conditions stated, “the sale of any real or personal property for the nonpayment of said taxes shall not hereafter be set aside by any proceedings at law or in equity because of any irregularity,” etc., with a proviso the act should not apply to suits then pending or to those brought within six months after the effective date of the act for the purpose of setting aside such sales. Under its own terms the act did not apply to all sales — to pending suits and those which might be brought within six months. The act does not profess to cure tax sales, but only that tax sales shall not be set aside by the courts because of certain irregularities and informalities, naming them. Prior to the passage of said act 142 the courts had been setting aside tax sales because of the irregularities and informalities named therein. The act was held valid in Carle v. Gehl, 193 Ark. 1061, 104 S. W. 2d 445, In Kosek v. Walker, 196 Ark. 656, 118 S. W. 2d 575, it was held, to quote a headnote, that: “Upon the passage of act 264 of 1937, repealing act 142 of 1935, tax sales became subject to any attack upon them to which they were open prior to the passage of act 142 of 1935, except where the sales were being litigated when the repealing act 264 of 1937, was passed.”
Appellants attempt to distinguish Kosek v. Walker from this, because, in that case, the land was certified to the State and sold by it after the repealing act 264 was enacted. We think this fact would make no difference, for if the sale in the instant case would be cured by said act 142, it 'would have been cured in that also,' as the sale in that case was made in -1934, prior , to the passage of said act 142, and no suit was brought in this case, attacking said act until nearly two years after its repeal. As said in Kosek v. Walker, supra, “The infirmities of the tax sale herein involved were, therefore, not cured by act 142, and appellant’s contention that act 142 is still effective as to all tax sales made prior to the passage of said act 264 cannot be sustained. Upon the passage of act 264 tax sales became subject to any attack upon them to which they were open prior to the passage of act 142 except only those sales which were being litigated when the repealing act 264 was passed.”
We think appellants acquired no greater vested interest or title to said lands than the State had, and the repeal of said act 142 violated no constitutional right of theirs to a defense under act 142 after its repeal. As above stated, said act did not profess in haec verba to be a curative act, but only that the courts should not set aside tax sales for the infirmities mentioned under the conditions stated therein.
Two other questions are argued, one relating to limitations under the plea of possession for two years and the other to the question of betterments. Both were decided against appellants on evidence that is in dispute, which we have carefully considered, and we are unable to say the findings of the trial court thereon are against the preponderance of the evidence.
The decree is accordingly affirmed. | [
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Smith, J.
Appellees owned a lot, of irregular shape, containing 1.71 acres, in the town of Rector, which was not a part of the town as originally surveyed and platted. For many years it was described on the tax books as “Part 'South Half Northwest Quarter Section 23, T. 19 N., R. 7 E.,” and the taxes were assessed and paid under that description. None of the owners of the land lived in Rector, and the owner, Miss Vestal Wood who paid the taxes, resided in El Dorado. There had been a forfeiture and sale to the state through failure to pay the taxes when due, and a redemption was effected through correspondence with the county clerk. In a letter remitting a check to redeem, inquiry was made as to the due date of current taxes, and Miss "Wood was advised that they would be due February 15, 1936. Miss Wood sent the clerk of the county court a check for $41.45, but was advised that “Your taxes for 1935 is $42 instead of $41.45, the bond rate in this county is a little higher and that makes the difference. Send 55c more and that will pay 1935 tax.” The clerk, in this letter, further advised Miss Wood that “This property was surveyed last year and was put in lots. Your receipt for this year will call for lots 5, 6 and 7, Sy2, NW, Laffler’s Survey to Rector.” This unsurveyed addition to the town had been surveyed by Laffler, the county surveyor, and by the survey was divided into lots; but the clerk was in error in saying that Miss Wood’s land had been numbered lots 5, 6 and 7, according to the survey. Those were lots belonging to another person of the same name. Miss Wood’s lots were numbered 25 and 26, according to the survey. She knew nothing of the survey, and did not know the number assigned to her lots. The clerk took the money intending to pay the taxes on lots 25 and 26, and paid the taxes for Miss Wood on lots 5, 6 and 7. The taxes not having been paid on lots 25 and 26, they were sold to the state, and were duly certified to the state as delinquent lands. Later, in a proceeding brought under the authority of act 119 of the Acts of 1935, p. 318, this sale to the state was confirmed on April 17, 1939. The confirmation decree was not entered on that day, but was entered, nunc pro tunc, June 14, 1939. Appellants purchased the lots from the state and received from the Commissioner of State Lands a deed dated May 3, 1939.
This confirmation decree was rendered before Miss Wood learned that her lands had been returned delinquent, but she learned of the confirmation before the decree had been entered mmc pro tunc, and she employed counsel to redeem the lands. A formal tender of the taxes, penalty, interest, and costs for which the lots had sold, with interest thereon to the date of tender, was made June 1, 1939, hut the tender was refused. Thereupon, this suit was filed, and the summons which issued thereon was served June 3, 1939. The complaint alleged the’ facts herein stated, and it was shown by the depositions of Miss Wood and her cotenants that they were not advised of the delinquency of their lots and the sale thereof, or of the proceedings to confirm the sale thereof, until after the rendition of the confirmation decree.
The decree from., which is this appeal granted the relief prayed, and the deed from the State Land Commissioner to appellants was ordered canceled upon the payment of the $73.74, the sum previously tendered, and so much of the confirmation decree as confirmed the sale of appellees’ lots was vacated and set aside.
Appellees alleged that the tax sale was void for numerous reasons, and no attempt was made to sustain its validity. The insistence is that the confirmation decree cured its defects, and the right to redeem is, therefore, denied.
For the affirmance of this decree it is insisted that the Laffler survey was made without authority, and that the description of appellees’ lots as lots 25 and 26 was in effect no description, and that the confirmation decree was void for this reason.
We do not concur in this view. It is obvious that the description of the lots as “Pt. South half Northwest quarter, . . .,” is void. Many tax sales made under a similar description as “Pt.” or “Part” have been held void for that insufficient description. No valid sale of the lots for taxes could ever have been made under that description. The survey appears to have been made by the county surveyor, and so far as the record before us shows to the contrary, it is good and the descriptions given the lots in the survey became their legal description.
Provision is made in § 13695, Pope’s Digest, for the assessor to cause a survey to be made when necessary to obtain an accurate description of land for purposes of assessment for taxation.
Section 13697, Pope’s Digest, provides that “It is made the duty of the recorder of every county to provide and keep in his office a record book to be entitled, ‘Record of Surveyor’s Plats and Notes,’ in which he shall accurately record or make a fair copy and transcript of every plat and the notes accompanying the same returned to him by the county surveyor, as in this act is provided.”
By the next section it is provided that “When a plat and notes accompanying the same of any section or part of section of land shall have been made, returned and recorded, as herein provided, a designation by number of a lot therein, either upon the assessment list, the tax book, the delinquent list, or in any tax receipt, certificate of sale, tax deed, or in any other deed or writing, shall be held and considered to refer to and as being intended to designate the subdivision of such section or part of section as is of the same number on such plat and the notes accompanying.” Section 13698, Pope’s Digest.
The case of St. Louis-San Francisco Ry. Co. v. Sub-District No. 1 of Drainage District No. 11, 179 Ark. 567, 17 S. W. 2d 299, involved the sufficiency of the description of certain lands which had been sold for delinquent drainage taxes. It was there said: “This assignment of error might be disposed of by saying that the motion for a new trial does not call to our attention any particular description which is said to be fatally defective, but of the descriptions discussed it may be said a number referred to private surveys. So far as the record before us shows to the contrary, these descriptions may be good and sufficient. The statute provides for the survey of lands not in cities or towns into subdivisions so that the descriptions employed in the government surveys may not always be essential. Provision is made in % 9932, Crawford & Moses’ Digest {% 13697, Pope’s Digest), for a record book, to be entitled ‘Record of Surveyors’■ Plats and Notes,’ and by § 9933, Crawford & Moses’ Digest'(% 13698, Pope’s Digest), it is provided that assessments may be made with reference to these surveys. See, also, § 9928, Crawford & Moses’ Digest (§ 13695, Pope’s Digest).”
The sections of the statute referred to permit the survey of territory lymg within a city or town which, .by addition or annexation, has become a part of the city of town, but which was not included in the survey whereby the city or town property was divided into lots and blocks.
It is argued also for the affirmance of the decree that appellees’ taxes were not delinquent, and.that the taxes should be treated as having been paid, for the reason that the amount of the taxes was remitted to the county clerk, with directions -to pay the taxes due on appellees’ lots, and not the taxes due on some other lot, and that it was the fault of that official, and not that of appellees, that the money was applied to the payment of taxes on lands which appellees did not own and on which they did not intend to pay.
We are cited to cases like that of Knauff v. National Cooperage & Woodenvare Co., 99 Ark. 137, 137 S. W. 823, where it was held that “ ‘If the taxpayer pays to the collector proper amount and appropriates the money paid to the land on which he desires to pay, and the collector applies it to the payment of taxes on other land, it is nevertheless an actual payment; or if the taxpayer designates on which land he desires to pay and pays the amount asked by the collector, and the collector omits from the receipt any portion of the land on which the taxes are to be paid, it is nevertheless equivalent to an actual payment.’ (Citing cases.)”
But the tax collector here made no mistake. He issued a receipt for the taxes due on the land on which appellees, through their agent, the county clerk, offered to pay. That this error, not of the collector, but of the county clerk, did not constitute a payment of the taxes is settled by the opinion in the recent .case of Redfern v. Dalton, ante, p. 359, 144 S. W. 2d 713.
However, we think a redemption was properly permitted under the provisions of § 9 of act 119 of the Acts of 1935, the act pursuant to which the confirmation decree was rendered. It is there provided that ‘‘The owner of any lands embraced in the decree may, within one year from its rendition, have the same set aside in so far as it relates to the land of the petitioner by filing a verified motion in the chancery court that such ■person had no knowledge..of the pendency of the suit, and setting up a meritorious defense to the complaint upon which the decree was rendered. The chancellor shall hear such defense according to the provisions of this act as though it had been presented at the term in which it was originally set for trial.”
Here, the decree was rendered April 17, 1939, and entered, nunc pro tunc, June 14, 1939. Appellants’ deed from the State Land Commissioner was dated May 3, 1939. The tender of the amount paid for this deed, with the fee for the deed, and the interest thereon, was made June 1, 1939. This last date was well within a year of the date of the confirmation decree. It was established without question that appellees were unaware of the pendency of-the confirmation proceeding until after the rendition of the decree, and they proceeded with the greatest expedition thereafter.
It was held in the case of Redfern v. Dalton, supra, that the invalidity of a tax sale for any reason was a meritorious defense in a proceeding’ brought under the provisions of § 9 of act 119 of 1935 to redeem from the confirmation decree.
It is finally insisted that the suit filed by appellees was not an intervention within the meaning of § 9 of act 119. It can be nothing else, and was so treated in' the court below. It is true an independent suit was brought, but in this suit the persons were made parties who were adversely interested, and we have no hesitancy in holding that this suit filed in the chancery court was “a verified motion in the chancery court,” within the meaning’ of § 9 of act 119. It would put form before substance to hold otherwise. The proceeding here is not unlike the case of Hirsch and Schuman v. Dabbs and Mivelaz, 197 Ark. 756, 126 S. W. 2d 116. In that case the landowner sought to redeem from a confirmation decree rendered under the authority of act 119 of the Acts of 1935. That case was tried as a suit between the owner and the purchaser from the state of the confirmed title, and is so reported.
Appellants had paid no taxes when the tender was made, and it is not shown that they have paid any since, and the tender covered the full amount paid by appellants for the tax deed, with the interest thereon.
We think the redemption was properly permitted, and the decree authorizing a redemption is affirmed. | [
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Humphreys, J.
This suit was brought by appellant against appellee in the circuit court of Little River county to recover damages in the sum of $25,000 on account of injuries received by Mm through the alleged negligence of appellant’s fellow-workman, all of whom were employees of appellee, and at the time the injury occurred all were engaged in interstate commerce. For that reason the suit was brought under the provisions of the Federal Employer’s Liability Act, 45 USCA, § 51, et seq. At the time appellee was injured he and his fellow-workman were engaged in loading old rails from each side of a railroad track, where they had been laid down when taken up, onto a freight car which was being pulled by an engine along the track which was stopped at convenient intervals for loading. A “dolly” or roller was attached to the back end of the freight car so that after a rail was picked up on the side of the track by the crew and carried to the center of the track the part of the crew lifting the front end of the rail would lift it on the dolly and they, being assisted by the other part of the crew holding up the back end of the rail, would push or roll it onto the freight car. The rails weighed between eight hundred and nine hundred pounds each and it took a number of men to load them. At the time the injury occurred, five or six men were lifting on the front end and four or five on the back or rear end of the rail they were loading.
The particular negligence alleged and which the evidence introduced tended to sustain was that the men in front, at the direction and signal of the foreman, dropped the front end of the rail on the dolly before appellant, who was holding up the extreme rear end of the rail and in a stooping, strained position, could get in proper po-. sition to do his part of the lifting'and pushing, causing a sudden jerk on the rear end of the rail that inflicted painful and permanent injuries upon appellant.
Many other acts of negligence were alleged in the complaint and testimony introduced tending to sustain them.
Appellee filed an answer denying each and every material allegation in the complaint and as separate defenses pleaded contributory negligence and assumption of the risk on appellant’s part. Appellee introduced evidence in support of its denials and separate defenses.
Appellant was entitled under the pleadings and evidence to have the issues submitted to the jury under correct instructions.
Appellant contends that instruction No. 6 given at the request of appellee denied him the right to recover under the doctrine of comparative negligence vouchsafed to him under the first section of the Federal Employer’s Liability Act which, in part, is as follows: “Every common carrier by railroad while engaging in commerce between any of the several States, .... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . ., for such injury . . . resulting in whole' or in part from the negligence of any of the officers, agents, or employees, of such carrier, . . .”45 USCA, § 51.
In construing this statute the Supreme Court of the United States, in the case of Illinois Central R. Co. v. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. Ed. 528, said: “. . . It may be taken for granted that the statute does not contemplate a recovery by an employee for the consequence of action exclusively his own; that is, where his injury does not result in whole or in part • from the negligence of any of the officers, agents, or employees, or the employing carrier, . . . 'But on the other hand, it cannot be said that there can be no recovery simply because the injured employee participated in the act which caused the injury. The inquiry must be whether there is neglect on the part of the employing carrier, and if the injury to one employee resulted ‘in whole or in part’ from the negligence of any of its other employees, it is liable under the express terms of the act. That is, the statute abolished the fellow-servant rule. If the injury was due to the neglect of a co-employee in the performance of his duty, that neglect must be attributed to the employer; and if the injured employee was himself guilty of negligence contributing to the injury, the statute expressly provides that it ‘shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.’ ”
The question then is whether instruction No. 6 given at the request of appellee denied appellant the right to recover if he himself was guilty of negligence in any degree which contributed in part to his injury. Instruction No. 6 is as follows: “Even if you find from a preponderance of the evidence that those members of the loading crew on the forward end of the rail dropped it on tlie flat car or roller in such, manner as to cause an abrupt jar on the rear end, plaintiff cannot recover if the abrupt jar injured him because of his inattention.”
The word “inattention” used in the instruction necessarily means “negligence,” and when so construed the instruction told the jury, in effect, that if appellant’s injury was caused in part by his own negligence and in part by the negligence of appellee he could not recover. This instruction was, therefore, inherently wrong and, of course, was prejudicial and will necessarily work a reversal of the judgment.
It is unnecessary to discuss the question raised and argued that it is in conflict with instruction No. 4 given at the request of appellant because on a new trial No. -6 will'not be requested, or, if. requested, will be denied and then there will be no conflict.
Appellant also contends and argues that the court erred in excluding his evidence that the right of way on the outside-of the track was rough and uneven. Appellant’s injury occurred, if at all, on the track between the rails. The rail and all the men handling it were on the track between the rails and we are unable to see what connection the condition of the right of way outside the track had with the alleged negligent acts complained of or with appellant’s alleged act of contributory negligence complained of.
Appellant’s next contention is that instruction No. 8 given at the request of appellee was and is erroneous on the ground that it invaded the province of the jury. We have carefully read the instruction and do not think it was an instruction on the weight of the evidence. Its effect was to tell the jury that even if certain alleged acts of negligence had been proven to their satisfaction before they could return a verdict on account of said acts they must find that the acts were carelessly committed. We think it was a correct declaration of law to tell the jury that the acts complained of must be careless or negligent acts. In other words that the injury must have resulted from negligent or careless acts and was not the result of an unavoidable accident.
Lastly, appellant contends that the court committed reversible error in permitting appellee to introduce certain X-ray pictures without proper identification. It may he that on a new trial these pictures will be identified if introduced so we see no necessity of deciding’ at this time whether they were properly identified.
On account of the error indicated the' judgment is reversed and the cause is remanded for a new trial. | [
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Smith, J.
Appellee filed suit in the Garland circuit court against Leonard Aldridge, Arthur Cline, Tom Crawford, Leon Williams, Luther Miles, and the Dierks Lumber & Coal Company, a corporation, to recover damages to compensate an alleged personal injury sustained on June 27, 1939, while employed by the corporate appellant, through the negligence of the individual defendants named, all of whom were at the time employees of the corporation, hut the suit was dismissed as to all the employees except Cline and Aldridge.
The jury returned the following verdict: “We, the jury, find in favor of the defendants Arthur Cline and Leonard Aldridge. We, the jury, find in favor of the plaintiff against the defendant Dierks Lumber & Coal Company and fix his damages in the sum of nine thousand and five hundred dollars ($9,500).”
This verdict was reduced by the court to $5,000, and judgment was rendered for that sum, from which the corporation has appealed, and the plaintiff has prosecuted a cross-appeal from the action of the court in reducing the verdict.
For the reversal of the judgment it is insisted by the appellant corporation that inasmuch as its alleged liability arises under the doctrine of respondeat superior, and inasmuch as a verdict was returned in favor of the employees for whose negligence it has been held liable, judgment should have been entered in its favor notwithstanding the verdict of the jury.
The answer of the corporation, hereinafter referred to as appellant, denied all allegations of the complaint as to negligence, and further alleged “That the plaintiff’s negligence caused or contributed to his injury, if any, . . . , as he was the best' judge of his own strength. ’ ’
Appellee’s testimony was to the effect that appellant employed several crews of men to cut timber. The employees assembled each morning at the New Blakely camp, where barrels of drinking water would be loaded into the trucks for consumption while the men cut timber in the woods. ■ Appellee arrived at the camp just as the members of his crew had completed putting water in the barrel, and had just picked the barrel up to load it on the rear end of the truck. Appellee got up in the front end of the truck, and walked to the rear end thereof to assist Aldridge in lifting the barrel into the truck.
There was testimony to the effect that each crew filled its own barrel with water, and that the custom was to first place 10 or 15 gallons of water in the barrel and load it with that quantity of water into the truck, and thereafter to finish filling the barrel by using buckets in which water was carried from the pump to the barrel. The barrels held about 50 gallons, and had iron handles just below the middle. There were lids for the barrels, which were fastened down and sealed with a rubber washer when full so that the water would not splash out while it was being transported into the woods.
On the morning of appellee’s alleg’ed injury no buckets were available, and the barrels were filled before they were placed in the truck, and as the lids had been placed in position it could not be seen that the barrels were full of water. Aldridge stood'on oné side of the truck, and appellee was on the other to receive the barrel when it was placed in the truck. Appellee reached down and seized one of the handles on the barrel, while Al-dridge took the handle on- the other side. f The men on the ground lifted the barrel of water-up-to the. truck, but released it when Aldridge and appellee seized the handles. This threw the weight of the entire barrel on appellee and Aldridge, and the latter gave the 'barrel a quick jerk, which threw the entire weight of the barrel on appellee. The testimony on appellee’s behalf is to the effect that this act of Aldridge threw the great weight unexpectedly upon appellee, causing him to wrench his back and produce an inguinal hernia.
It is undisputed that appellee has a hernia, but the testimony is conflicting as to its cause. Experts testified on both sides of the question, and the conflicting opinions usually appearing in such cases is present here. Upon this issue the testimony on appellee’s behalf is to the effect that he sustained, not only a hernia, but a painful and permanent injury to his back from which he has suffered and now suffers greatly, and that he has since been unable to do manual labor or to obtain employment which he can perform, even as a WPA worker.
We think the case of Border Queen Kitchen Cabinet Co. v. Gray, 189 Ark. 1137, 76 S. W. 2d 305, affords authority for saying that the testimony above recited made a question for the jury whether appellee’s injury was the result of the negligence of his fellow-servants, and we are of opinion that the testimony is sufficient to sustain the verdict rendered by the jury.
The serious and difficult question in the case is whether the judgment against the appellant, master, may be affirmed in view of the verdict in favor of the servants whose negligence caused the injury. We are constrained, upon the authority of the case of Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. 2d 255, to hold that it may and must be. In that case, as in this, a master was held liable for the negligence of servants in whose favor a verdict was returned. In that case, as in this, there was an allegation that the injured servant was guilty of contributory negligence, and the question was there raised, as it is here, whether the question of contributory negligence should have been submitted to the jury under the testimony in the case.
The only negligence with which appellee could be charged, contributing to his injury, was that he had misjudged his strength, as alleged in the answer. Now, for reasons presently to be stated, contributory negligence was not a defense available to the corporation, but it was a defense available to Cline and Aldridge. This is the distinction drawn in the Senn case, supra, upon very similar facts, and was the theory upon which the judgment was affirmed which was rendered upon the verdict exonerating the servants, but holding the master liable. We are unable to distinguish this case from that one.
By § 9Í30, Pope’s Digest, it is provided that ‘ ‘ Every corporation, except while engáged in interstate commerce, shall be liable in damages to any person suffering injury while he is employed by such corporation, . . . resulting in whole or in part from negligence (of such corporation or from the negligence) of any of the officers, agents or employees of such corporation.”
And by § 9131, Pope’s Digest, which is a part of the act of which § 9130 is also a part, it is provided that “In all actions hereafter brought against any such corporation under or by virtue of any of the provisions of this act to recover damages for personal injuries, . . ., the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury (and not by the court) in proportion to the amount of negligence attributable to such employe; . . .”
It was held in the case of Athletic Mining & Smelting Co. v. Sharp, 135 Ark. 330, 205 S. W. 695, that the defense of contributory negligence is eliminated from all actions by employees for personal injuries received while employed by corporations not engaged in interstate commerce. It may happen, therefore, as in the Senn case, supra, that the master may be held liable for an injury occasioned by the negligence of a servant who was exonerated by the jury from liability.
It is insisted that this statute does not apply here because the appellant is subject to the National Labor Relations Act, 29 USCA 151, et seq., the Pair Labor Standards Act, and other like federal statutes, and to sustain that contention such cases as Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U. S. 453, 58 S. Ct. 656, 82 L. Ed. 954; Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197, 59 S. Ct. 206, 83 L. Ed. 126; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 57 S. Ct. 615, 81L. Ed. 893, 108 A. L. R. 1352, and National Labor Relations Board v. Fruehauf Trailer Co., 301 U. S. 49, 57 S. Ct. 642, 81 L. Ed. 918, 108 A. L. R. 1352, are cited.
It is no doubt true that under the cases just cited appellant is subject to the regulation and control of the statutes there construed, because there exists “a close and intimate relation ¡between (petitioner’s) appellant’s operations and the flow of commerce,” a quotation from the eases-cited.
But those federal statutes have no application or relation to the facts in the instant case. Appellee was not engaged in interstate commerce at the time of his injury within the meaning of §§ 9130 and 9131, Pope’s Digest, supra. The service in which appellee engaged was to load the barrel of water into a truck, to be carried into the woods and there consumed by employees who were engaged in cutting timber, which, when hauled to the mill, would be manufactured into lumber, portions of which would be shipped in interstate commerce. The federal cases are very liberal and have gone quite far in holding injured employees to have been engaged in interstate commerce, but none have been called to our attention which have gone to the extent of applying that holding to facts similar to those of the instant case.
Appellant is subject to the Wagner and similar acts, because a considerable portion of its final product will be shipped in interstate commerce, but in its relation to appellee at the time of his injury, it was not engaged in interstate commerce. Had appellee ¡been engaged in loading lumber on a car for shipment in interstate commerce, or other similar service, a different question would be presented.
It is insisted that the judgment, notwithstanding the reduction of $4,500 which the court made, is still excessive. It does, even yet, appear to be very liberal, but we are unable to say that it is so excessive that a further reduction must be ordered.
Appellee has prayed a cross-appeal from the action of the court in reducing the verdict from $9,500 to $5,000, for the reason that appellant failed to comply with the provisions of § 1538, Pope’s Digest. By this section it is provided “that the circuit judge presiding at the trial may on motion for a new trial filed by the losing party, if he deems the verdict excessive, indicate the amount of such excess, and thereupon, if the losing party shall offer to file and enter of record a release of all errors that may have accrued at the trial if the prevailing party will remit the amount so deemed excessive, and the prevailing party shall refuse to remit the same, the verdict shall be set aside. ’ ’
It was held in the case of St. Louis & North Arkansas Rd. Co. v. Mathis, 76 Ark. 184, 91 S. W. 763, 113 Am. St. Rep. 85, that the act of April 25, 1901 (Acts 1901, p. 196), which appears as § 1538, Pope’s Digest, was void in so far as it curtailed the appellate jurisdiction of the Supreme Court.
In the case of S. & C. Transport Co. v. Barnes, 191 Ark. 205, 85 S. W. 2d 721, it was said: “Inherently courts of record have the power to reduce jury awards to conform to the established facts as is established by oúr repeated actions in this regard.” The Mathis case, supra, and numerous other cases were cited to sustain this statement of the law as to the power of trial, courts in regard to verdicts thought to be excessive.
Upon the whole case we find no error, and the judgment must be affirmed, and it is so ordered.
GriffiN Smith, CJ., and Holt, J., dissent. | [
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Grieein Smith, C. J.
Appellees are physicians who rendered professional services to their patient, Dalhoff, who died in 1934. The administrator’s approval of claims was followed by the probate court’s order of allowance. Because principal assets consisted of real estate for which there was not a satisfactory market, payment was delayed.
In June, 1938, Jones received $208.25. The remainder of his claim was paid in September, 1939, when Compton was also paid in full. Thereafter it was insisted in- and “paid in full” have reference to face values, exclusive of interest. terest was due from date of allowance by the court in 1936. There was a finding for each claimant and the administrator has appealed.
Section 1 of act 78, approved March 21, 1893, provides that creditors shall receive interest at the. rate of six per cent, per annum on any judgment from the day such judgment is signed. There is a proviso that interest shall not be payable on judgments rendered where county warrants evidence the debt, or where a debt of any county is the subject-matter.
The legislative intent seems to have been that all judgments should bear interest except those expressly excluded; and since claims against ¿states when converted into judgments are not excepted, the rule inclusio unius ést exclusio alterius applies. Hence, the only question seems to be, Does an order of the probate court allowing a claim against an estate rise to the dignity of a judgment? We have heretofore answered in the affirmative.
In Miller v. Oil City Iron Works, Chief Justice Hart discussed § 112 of Crawford & Moses Digest, and stated that the probate court’s order of allowance- has the force and effect of a judgment. Support for this declaration of law was found in Jackson v. Gorman, where Chief Justice Bunn said that allowances of claims against an estate were in the nature of judgments, and after expiration of the term were not within'control of the probate court.
Apposite are decisions that an order of allowance by the county court is in the nature of a judgment. Desha County v. Newman, 33 Ark. 788.
Judgment affirmed.
The payment made to Jones in 1939 was $228.22.
Compton’s account was $69, The terms “remainder of his claim”.
Pope’s Digest, § 9399.
184 Ark. 900, at pages 904-5; 45 S. W. 2d 36.
Now § 111 of Pope’s Digest.
70 Ark. 88, 66 S. W. 346.
In the Jackson-Gorman case Clark v. Shelton, 16 Ark. 474; Dooley v. Dooley, 14 Ark. 122; West v. Waddill, 33 Ark. 575; Rogers v. Wilson, 13 Ark. 507, and Carter v. Engles, 35 Ark. 205, were cited on the question of attack on a probate court judgment. [See, also, Outlaw v. Yell, 5 Ark. 468; Dooley v. Watkins, 5 Ark. 705; McMorrin v. Overholt, 14 Ark. 244; Wright v. Campbell, 27 Ark. 637; Wolf v. Banks, 41 Ark. 104; Scott v. Penn, 68 Ark. 492, 60 S. W. 235; Hoshall v. Brown, 102 Ark. 114, 143 S. W. 1081; James v. Gibson, 73 Ark. 440, 84 S. W. 485; Brown v. Hanauer, 48 Ark. 277, 3 S. W. 27. ]
See cases under the title “Conclusiveness and Effect of Adjudication in General,” § 206 (1),-“Counties,” v. 5, West Publishing Company’s Arkansas Digest. | [
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Smith, J.
This appeal is from a judgment for $12,000 in favor of appellee to compensate an injury which she sustained as the result of a collision between an automobile, in which she was riding, and a passenger .bus owned and operated by appellant Transportation Company.
There is a sharp and irreconcilable conflict in the testimony upon every material allegation of fact, but it is conceded that the testimony offered in appellee’s behalf was sufficient to make -a case for the jury.
According to the testimony offered in appellee’s behalf, she. and her brother and another couple were riding in a one-seat automobile. All were sober, and no member of the party had drunk anything except soft and non-alcoholic drinks. They had driven into the Town of Prescott, when appellant’s bus passed them, and, in doing so, the bus scraped a fender of their car, and was then stopped immediately in front of the car without signal or warning that this would be done.
An instruction numbered 1, given at appellee’s request and over appellant’s objection, told the jury that if the facts were found so to be, and that appellee was injured without fault or carelessness on her part, a verdict should be returned in her favor.
On behalf of appellant the testimony was to the effect that the parties in the car were driving around on pleasure bent. They had been drinking both beer and whisky. The car was driven by appellee’s brother, but was owned by a lady who was a member of the party. Among other stops made was one at a tourist camp, where the owner of the car and appellee’s brother attempted to dance, but they were too inebriated to do so. Appellee remained in the car while it was parked at the camp and was seen vomiting.
If this testimony is true, the parties in the car were engaged in a joint enterprise, and the negligence of the driver would be imputed to each of them. Albritton, Admr. v. C. M. Ferguson & Son, 197 Ark. 436, 122 S. W. 2d 620.
Other testimony on the part of appellant was to the effect that the bus did not strike or pass the car, but that both the bus and the car were proceeding down the street, and the bus began to reduce its speed, on account of a railroad crossing which it was approaching, when the car ran into it.
A statement signed by appellee was offered in evidence, which attributed the collision to the fact that the brakes of the car did not hold and it ran into the bus, which they could not pass because another car was approaching from the opposite direction. This statement was made and signed while appellee was confined in the hospital. Appellee repudiated this statement, saying that it was made while she was under the influence of morphine and unaware of its recitals. This was, of course, a question of fact which is concluded by the verdict of the jury.
Upon these disputed questions of fact many instructions were given, and a number of others were refused, but none of those given declared the law in relation to the question of a common enterprise. There was sufficient testimony to require the submission of this question, and the jury should have been told that if the occupants of the car were engaged in a common or joint enterprise the negligence of its driver would be imputed to its occupants. Albritton v. Ferguson, supra.
Appellant requested the court to give an instruction numbered 14, which would have submitted this question. The request was refused and, in lieu of this instruction, the court gave another, numbered 7M>, reading as follows : “If you find that the collision occurred because the driver of the car in which plaintiff was riding negligently drove his car into the rear of the bus while said bus was proceeding down the highway, you will find for the defendants.”
It is insisted that the giving of this instruction 7% cured all errors complained of in regard to the instructions, as it told the jury in effect that the plaintiff was entitled to recover unless the driver of the car was guilty of negligence contributing to the collision. It is true, of course, that if the driver of the car was not negligent, the question of a joint or common enterprise becomes unimportant. . There could be, in that event, no imputation of negligence.
But other instructions — notably appellee’s instruction numbered 1 — was not withdrawn or modified. This instruction stated the facts which — if established — would support a recovery. It required only that the jury should find that the driver of the bus was guilty of negligence which was the proximate cause of the collision, and that “the plaintiff herself, was without fault or carelessness on her part.” The instruction took no account and made no mention of the question of the negligence of the driver of the car, and permitted a recovery if it were found that the negligence of the driver of the bus was the proximate cause of the injury, and that ap-pellee was without fault or carelessness on her part. This would not be the law if the occupants of the car were engaged in a joint enterprise and the negligence of the driver of the ear was the proximate cause of the injury.
Now, it has been said that instruction numbered 1V-2, read by itself would eliminate that question; but it may not be read by itself, and we have no way of knowing whether the jury followed instruction numbered 1 or instruction numbered 7%. Under the instruction numbered 1 it was unimportant whether the driver of the car was negligent, provided appellee herself was without fault or carelessness.
Cases upon the effect of conflicting instructions were reviewed by Justice Butler in the case of Herring v. Bollinger, 181 Ark. 925, 29 S. W. 2d 676, with his usual discrimination, and the rule announced in St. Louis, Iron Mt. & So. R. R. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375, 1199, was approved as follows: “An instruction which ignores a material issue in the case about which the evidence is conflicting and allows the jury to find a verdict without considering that issue, is misleading and prejudicial, even though another instruc tion which correctly presents that issue is found in other parts of the charge.”
We conclude, therefore, that the error in instruction numbered 1, in failing to submit the question whether the driver of the car was negligent, and, if so, the effect thereof if a common enterprise existed, is not cured by instruction numbered 7%, and the judgment must, therefore, be reversed. It is so ordered, and the cause will be remanded for a new trial.
Humphreys, Mehapey, and Baker, JJ., dissent. | [
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Mehappy, J.
This action was instituted by appel-lee against the appellant in the circuit court of Logan county on February 28, 1940, to recover damages alleged to have been caused by the negligence of the appellant when he was cleaning windows on a newly-erected building of the Arkansas Tuberculosis Sanatorium near Booneville, Arkansas. The appellant, Harmon, was awarded the contract for the erection of the building.
Appellee alleged that he is a farmer, not qualified to earn support for himself and family except by manual labor, which prior to his injury he was able to do and did; for some time prior to January 3, 1940, he was employed by defendant as a common laborer to work in, upon, and about the buildings of the sanatorium, and he did such things as he was directed by his superiors to do; on January 3, 1940, appellee was directed by his superior to wash and clean the windows in a building erected by appellant; another laborer was directed to work on the inside of the building and appellee was given a ladder and directed to clean the windows on the outside; that one of his superiors set the ladder for the appellee and directed him to climb it for the purpose of cleaning the windows some 12 or 15 feet from the ground; appellant had nailed, tacked, or otherwise fastened the screen frames over the windows and thus made it necessary for appellee to rémove same before he could wash the windows; that while undertaking to remove the screen frame from the window, when he was in the exercise of due care for his own safety, and because of the negligence of appellant, the ladder slipped, causing him to fall, seriously wounding and injuring his back and other parts of his body. Appellee then describes his injuries and the extent thereof and states that he has been under the care and treatment of physicians and that he has spent money in an effort to effect a cure, and will be compelled to expend other sums; that appellee’s injuries are the proximate result of appellant’s negligence in failing to exercise ordinary care to furnish and provide appellee with a safe place in which and suitable and safe appliances with which to do his work; that appellee, prior to his injuries, was able-bodied and capable of earning about $2.50 a day, but since'his injury has been unable to work and will be for an indefinite time in the future. He alleges that he has been damaged in the amount of $3,000 and prays judgment for that amount.
Appellee filed an amendment to his complaint and the appellant answered, denying all the material allegations in the complaint and pleaded specifically that the appellee, if he was injured at the time and place alleged, was injured as a result of his, own contributory negligence and of the risks assumed by him at the time he engaged in said employment.
There was a trial and verdict and judgment in favor of appellee against the appellant in the sum of $2,500. Motion for new trial was filed and overruled, exceptions saved, and the case is here on appeal.
The facts in the record show that the appellee, Morrison, was 36 years old and was in the employ of the appellant, Harmon, and that appellee and others were washing windows in a building’ recently constructed; that the screens were fastened, some with nails, and it was necessary to remove the screens to wash the windows. The evidence also shows that they secured a 20-foot ladder, and that while appellee was on this ladder, it fell with him, causing his injuries, and that he was very seriously injured. There is, however, no evidence in the record tending to show that there was a defect in the ladder or any other appliance or the place where appellee was working that caused or had anything to do with the injury. In fact, there is no evidence of any defect or any negligence on the part of the master connected in any way with the injury.
i
Appellee states in his brief that his cause of action was that the appellant had failed in his duty to appellee in that appellant had not exercised ordinary care to provide appellee with a reasonably safe place in which, and reasonably safe appliances with which, to perform his duties as a servant of appellant. It is unquestionably the duty of a master to exercise reasonable care to furnish the servant a reasonably safe place in which and reasonably safe appliances with which to work. The law does not require that he furnish the servant a safe place or safe appliances, but it does require that he exercise ordinary care to make the place where the servant works reasonably safe and tó furnish reasonably safe appliances with which to work.
Appellee’s cause of action, as stated by himself, is based on the failure of the master to exercise ordinary care with reference to the place to work and appliances. There is no evidence in the record tending to show that the master was guilty of negligence in this respect. In the instant case we have been unable to find any evidence of negligence of the master, and no presumption of negligence arises from the mere happening of the accident which caused the injury. "While the duty is upon the master to exercise ordinary care, the presumption is that he has exercised such cafe, and in the absence of evidence showing failure to exercise such care, the pre sumption is that the master performed Ms duty. Fraser v. Norman, 184 Ark. 434, 42 S. W. 2d 569.
TMs court recently said: “TMs court has many times held that, in order to recover because of the failure of the master to furnish an employee with safe appliances or a safe place to work, the burden is upon the complaining party to establish the fact that the appliances or place was unsafe, and also that the master either had notice of the unsafe condition or defect or could, by the exercise of ordinary care, have known of the defect. A master is not required to exercise ordinary care to furnish an absolutely safe place to work, but he is required to exercise ordinary care, to provide safe appliances and a safe place to work.” International Harvester Co. of America v. Hawkins, 180 Ark. 1056, 24 S. W. 2d 340; Rice & Holiman v. Henderson, 183 Ark. 355, 35 S. W. 2d 1016.
Both parties have argued at some length as to whether the ladder was a “simple tool.” We think it unnecessary to discuss this question, because under our view of the case the evidence does not show any negligence on the part of appellant, and it would therefore be wholly immaterial whether the ladder was a 1‘ simple tool” or not.
Appellee contends that since he was a farmer 36 years old and wholly inexperienced in working upon ladders, that he did not assume the risk. We think it is wholly unnecessary to discuss this question because, as we have already said, there does not appear to have been any negligence on the part of the master; and if the master was not negligent, that, of course, is the end of the case because the cause of action is based upon the negligence of the master in his failure to furnish a safe place ■ and safe appliances. Moreover, the evidence does not show that appellee was ignorant and inexperienced, and that he did not know how to handle a ladder. Again, the evidence does not show any defect in the ladder or in the place where he worked.
It is argued by appellee that the appellant did not give him any instruction. What instruction could have been given him ? It is not claimed that there was any defect to which attention could have been called, or any danger from the use of the ladder. The evidence shows that the ladders were there and used by the employees whenever they needed them. So far as the record shows they selected them themselves.
This seems to be a case where the accident occurred and where it is not shown in the evidence that the master was .guilty of any negligence, although the appellee was severely injured. In order to recover, the burden is upon the plaintiff, appellee here, to show by a preponderance of the evidence that negligence existed as charged in his complaint, and that this negligence was the cause of the injury to appellee. We think the evidence wholly fails to show either of these requirements.
The judgment is, therefore, reversed, and the case dismissed. | [
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McHaney, J.
In July, 1939, petitioner filed her suit in the Lawrence chancery court against her husband, Ted Shuman, for separate maintenance for herself and three minor children, suit money and attorneys’ fees, which action was resisted by him. On August 7, 1939, she amended her complaint and, in addition, prayed for a divorce. On the same date the complaint and amendment were submitted to the court on.the testimony of the parties which resulted in a decree awarding petitioner $65 per month, payable semi-monthly, for the support of herself and children, no action being taken on her prayer for a divorce.
Petitioner thereafter removed to the state of Kansas, taking said children with her, and the payments provided in said decree were regularly made to her there. On November 8, 1940, Mr. Shuman filed in said action a motion to modify said decree of August 7, 1939, by reducing the amount of the award, it being' alleged that two of said children were then living with him, and also a cross-complaint in which a divorce from petitioner was sought. Service was had .on said motion and cross-complaint by-warning order. Prior thereto, on October 28, 1940, there was noted on the judge’s Bar Docket by her attorney the following: “Case dismissed in vacation by plaintiff, without prejudice,” which was attested by the clerk.
The matter of said motion and cross-complaint came on to be heard by the court on December 20, 1940, due and timely notice thereof having been given petitioner, and the 'attention of the court being called to the attempted dismissal of the action by her in vacation, an order was entered holding said attempt to be null and void for the reason “that said cause not only had been submitted to the court, but it had been finally determined and a decree had been rendered thereon in plaintiff’s favor, and she had been receiving the fruits of said decree since its rendition. . . . ” The court sustained its jurisdiction, and on the same day entered a decree reducing the amount awarded petitioner by its decree of August 7, 1939, to $32.50 per month. As to the cross-complaint, the decree provided that: ‘1 The court having been advised that the nonresident plaintiff (petitioner) desires a continuance in order that she may contest the action of the cross-complainant, said continuance is hereby granted to January 16, 1941. . . .” This petition for a writ of prohibition was filed in this court January 11,1941.
We think the writ must be denied. The court had jurisdiction both of the subject-matter and the parties on August 7, 1939, when its original decree was entered awarding maintenance to her and the children, and we agree with the trial court that her attempted dismissal of the action on October 28, 1940, was ineffectual in thereafter depriving the court of jurisdiction. It is contended by petitioner that § 1486 of Pope’s Digest, as construed by this court in Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S. W. 2d 358, sustains her attempted dismissal of the action and deprived the court of jurisdiction thereafter to hear and determine said motion and cross-complaint. Said section provides that the plaintiff or his attorney may dismiss any suit in any of the courts of this state, except replevin actions in vacation, in the office of the clerk, on payment of accrued costs. In the case cited we held that the plaintiff in that action might dismiss same, before a final judgment or decree was entered, there being no cross-complaint or counterclaim. Here there is an entirely different situation. A final decree had been entered on her complaint, and she had been receiving the benefits of such decree and continued to receive them after her attempted dismissal of the action. Said statute provides that the plaintiff may dismiss any “suit,’’ but it.does not provide for the dismissal of a judgment or decree in vacation.
It is further contended that an action for the custody of minor children is an action in personam, and that no personal judgment can be rendered against petitioner who is now a nonresident. Two of the children are now living with their father within the jurisdiction of the court. If the court erroneously exercises its jurisdiction, it can only be corrected by appeal. It has many times been held by this court that the writ of prohibition is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that would be done by such usurpation. Russell v. Jacoway, 33 Ark. 191; Sparkman Hardwood Lumber Co. v. Bush, 189 Ark. 391, 72 S. W. 2d 527.
Since, as we have already shown, the conrt had jurisdiction of the snbject-matter and the parties, the petition for the writ.will be denied.
It is so ordered. | [
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GeieetN Smith, C. J.
Jim Duckworth was found guilty of transporting alcoholic liquors through Arkansas without having procured a permit from the commissioner of revenues. He was fined $500.*
The judgment recites that the cause was heard “upon the stipulations of witnesses’ testimony and the argument of counsel.” Essentials of the agreed statement are in the margin.
An appeal involving construction of § 14177 of Pope’s Digest was before this court in 1939. Jones v. State, 198 Ark. 354, 129 S. W. 2d 249. In that case the defendant was charged with transporting fifty cases of “taxpaid liquor” from Illinois to Oklahoma by way of Arkansas.
In the instant appeal it is insisted that in the Jones Case the right of Arkansas to tax, regulate, or condition interstate shipments was not properly presented. It is also urged that the Jones Case was based upon Haumschilt v. State, 142 Tenn. 520, 221 S. W. 196, and that the Haumschilt Case has been overruled by the supreme court of Tennessee.
Counsel for appellant say: “One question, and one only, is presented: that is, Does the state have power to regulate a shipment of liquor which is merely passing through Arkansas in interstate commerce ? ’ ’
Our answer is that the state does have such right.
In McCanless, Commissioner,v. Graham, (Tennessee Supreme Court), the proceedings were not under the criminal code. The appellant, engaged in interstate transportation of liquors, was detained on a charge that the commodity was contraband. In the Tennessee chancery court it was held that the statutes did not authorize confiscation of such property. The department of finance and taxation had issued a license permitting Graham to transport the liquor. After mentioning that the only act engaged in by Graham “which can in any wise be related to [the Tennessee statutes] w¡as that of trails porting intoxicating liquors through dry counties of the state,” it was said.
“But, under the stipulation, this was a mere incident of interstate transportation, and if the statutes should be construed so as to prohibit such transportation, they would be void because violative of the commerce clause of the United States constitution. . . . We are further of the opinion, as was the chancellor, that the seizure was illegal because appellee was engaged in interstate commerce. ’ ’
Consonant with the Tennessee courts, this court has held (Jones v. State) that liquor in interstate transit is not subject to confiscation.
Since we determined in the Jones Case that the act of March 16, 1935 (Pope’s Digest, § 14177), “. . . makes it unlawful for any person to ship or transport, or cause to be shipped or transported, into the state of Arkansas, any distilled spirits from points without the state, without first having obtained a permit from the commissioner of revenues, but three questions are to be determined here: Is such regulation reasonable in view of the state.’s problem in dealing with the manufacture, sale, and transportation of liquor? Is it a. burden on interstate commerce? Does “into” as used in act 109 mean “into and out of ”?
Although in appellant’s motion for a new trial it is alleged that application for permission to move the liquor was made of the commissioner of revenues, and refused, the agreed statement contains nothing to this effect. We must assume, therefore, that no such request was made.
Rules of the department of revenues, promulgated by the commissioner under authority of act 109 of 1935 (in effect during all of December, 1940), provide that “It shall be unlawful for any person to ship, transport, cause to be shipped or transported into the state of Arkansas any distilled spirits from points without the state without having first obtained a permit from the commissioner of revenues, or his duly authorized agent.” This regulation is copied almost verbatim from § 5(a) of act 109. It must be conceded that the act is somewhat obscure regarding strictly interstate transportation of liquors; but there is a very definite requirement • that before shipments may be brought “into the state” from points “without the state” permission'of the commissioner of revenues must be obtained. 'But, it is argued, this section, and other sections of act 109 dealing with transportation, have reference to liquors brought from without the state intended for intrastate usage; hence, appellant contends, “into” does not mean into and through, but “into and at rest.”
First. — Other than act 109 there is no statute dealing with transportation in the sense contemplated by. that measure. It must be assumed, therefore, that the general assembly intended to cover all requirements, and that the term “into” as used in the act includes shipments entering the state, but consigned to points within or beyond. This construction is contrary to that of some courts dealing with related transactions, and we adhere to such definition only because it is our belief that the general assembly intended it so, although more appropriate language could have been used.
Second. — The commissioner’s regulation requiring those proposing to transport liquor through Arkansas to procure a permit is not in excess of authority conferred by the legislature. : .
Third. — The state ' relies, upon Ziffrin, Inc., v. Reeves to support the coinmissioner’s action, and to sustain the assertion that the'regulation does not impose a burden on interstate commerce. In that case it was said by Mr. Justice McReyNOlds, who wrote the opinion:
■ “The Twenty-first Amendment sanctions the right of a state to legislate concerning'" intoxicating liquors brought from without, unfettered by the commerce clause. Without doubt a state may absolutely prohibit the manufacture of intoxicants, their transportation, sale, or possession, irrespective of when or where produced or obtained, or the use to which they are to be put. Furthermore, she may adopt measures reasonably appropriate to effectuate these inhibitions and exercise full police authority in respect of them.”
Facts before the court were that the appellant, an Indiana corporation, had continuously received whiskey from distillers in Kentucky for direct carriage to consignees in Chicago. The Kentucky Alcoholic Beverage Control Law of 1938 restricted the agencies by which whiskey might be transported.
After commenting upon the power of states to prohibit manufacture, sale, and transportation. of liquors, and affirming Kentucky’s right to condition transportation, the opinion says:
“We cannot accept appellant’s contention that because whiskey is intended for transportation beyond the state lines the distiller may disregard the inhibitions of the statute by delivering to one not authorized to receive; that the carrier may set at naught inhibitions and transport contraband with impunity.”
It will be observed that § 2 of the Twenty-first Amendment prohibits the transportation or importation of intoxicating liquors into any state, territory, etc., for delivery or use therein in violation of the laws of the state.
The agreed statement in the ease at bar concedes that the liquor carried by Duckworth was not intended for delivery or use in Arkansas.
It is our view that the Ziffrin Case is not altogether in point with the controversy here. The Ziffrin corporation proposed to transport into Illinois liquors manufactured in Kentucky. The Supreme Court of the United States predicated its holding upon the fact that inasmuch as Kentucky had the right to prohibit the manufacture, transportation, and sale of whiskey, it had, as an incident to its power to prohibit, the right to designate the agencies of transportation, as a class, and to prohibit transportation by any other class. This, it was thought, was not a burden upon interstate commerce. Expressed differently, Illinois had no fundamental right to receive liquors from Kentucky; and lacking that right it could not complain of conditions under which limited transportation was permitted.
In the case at bar the commodity originated in Illinois, and its destination was Mississippi. Arkansas was a mere transportation conduit through which it passed. Appellant might have received a permit if he had applied for it; but, more than eighteen months after this court had held such transportation to be unlawful, he arrogated to himself the right to disregard reasonable legal prerequisites, and now complains that our decision places a burden on interstate commerce.
If we concede that some burden has been placed upon such commerce, the answer is that it may be done.
In the recent case of South Carolina Highway Department v. Barnwell Bros., 303 U. S. 177, 58 S. Ct. 510, 82 L. Ed. 734, it was said: “While the constitutional grant to Congress of power to regulate interstate commerce has been held to operate of its own force to curtail state power in some measure, it did not forestall all státe action affecting interstate commerce. Ever since Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245, 7 L. Ed. 412, and Cooley v. Board of Port Wardens, 12 How. 299, 13 L. Ed. 996, it has been recognized that there are matters of local concern, the regulation of which unavoidably involves some regulation of interstate commerce but which, because of their local character and their number and diversity, may,.never be fully dealt with by Congress. Notwithstanding the commerce clause, such regulation in the absence of congressional action has .for the most part been left to the states by the,decisions of this court, subject to the other applicable constitutional restraints.”
The distinction (mentioned in a footnote to . the Barnwell Bros. Case and citing Hall v. DeCuir, 95 U. S. 485, 24 L. Ed. 547, and other decisions) is this: “State regulation affecting interstate commerce,, whose .purpose or effect is to gain for .those within the,state an advantage at the expense of those without, or to ..burden those out of the state without any corresponding advantage to those within, have been thought to impinge upon the constitutional prohibition even though Congress has not acted.”
After citing and commenting upon former decisions, the court said: “In each of these cases regulation involves a burden on interstate commerce. But so long as the state action does not discriminate, the burden is one which the Congress permits because it is an inseparable incident of the exercise of legislative authority, which, under the constitution, has been left to the states. ’ ’
Cooley v. Board of Port Wardens, referred to by Mr. Justice StoNe (who wrote the opinion in the Barnwell Bros. Case) held that the mere grant of-.the commercial power to Congress did not of itself forbid states from passing laws regulating, pilotage. In oxi.e ..of. the head-notes it is said: ‘ ‘ The power to regulate., commerce includes various subjects, upon some'of. which there should be a uniform rule, and upon others, different rules in different localities. The power is- exclusive in Congress in the former, but not in the latter class.”
As late as 1935 the Supreme Court of the United States, in a case appealed from the Supreme Court of Alabama, 229 Ala. 624, 159 So. 53, (see footnote) held that state regulations incidentally affecting interstate commerce were not invalid.
In Ouachita, Packet Co. v. Aiken, 121 U. S. 444, 7 S. Ct. 907, 30 L. Ed. 976, a case originating in Louisiana and decided in 1887, the court said, at pages 447-448: “In all such cases of local concern, though incidentally ■affecting commerce, we have held that the courts of the United States cannot, as such, interfere with the regulation made by the states, nor sit in judgment on the charges imposed for the use of improvements or facilities afforded, or for the services rendered under state authority. ’ ’
New York ex rel. Silz v. Hesterberg, Sheriff, 211 U. S. 31, 29 S. Ct. 10, 53 L. Ed. 75, and Geer v. Connecticut, 161 U. S. 519, 16 S. Ct. 600, 40 L. Ed. 793, are of interest and have application.
' The true rule to be applied here is that announced in Hayes v. U. S., C. C. A. Okla. 1940, 112 F. 2d 417. The thirteenth headnote is: “Although the Twenty-first Amendment to the federal constitution surrenders to each state the power to prohibit or condition importations of intoxicating liquor in interstate commerce into the state, the amendment does not surrender power of Congress to prohibit or regulate transportation of intoxicating liquor in interstate commerce, and Congress has power to enact legislation to execute [the] amendment, and to penalize its violation.”
In the absence of action by Congress there is no doubt of the right of a state to require those engaged in interstate • transportation of liquors — those who use Arkansas highways and other state facilities and who receive its police protection while engaged in such commercial pursuit — to procure from the commissioner of revenues, a permit conforming to regulations not inharmonious with act 109 of 1935. No revenue fee may be exacted for the permit, the only charge being that necessary to defray cost of issuance, police inspection, and necessary reports. The commissioner’s refusal or failure to promptly comply in reasonable circumstances would be subject to judicial review and immediate compulsion through mandamus.
Affirmed.
The cause originated in the municipal court of Blytheville, where it was alleged that liquor had been transported into the state in violation of § 14177 of Pope’s Digest. [Act 109, approved March 1-6, 1935.] The municipal court assessed a fine of $500. The defendant appealed to circuit court.
A jury was waived.
The state policeman who made the arrest, if called as a witness, would testify that Duckworth was detained December 11, 1940, on Highway No. 61. In the glove compartment of the Chevrolet truck the defendant was driving were found four half pint bottles of liquor, one of which had been opened. It was not full. In the truck were 100 eases of “liquor,” upon all of which the federal tax had been paid but the Arkansas tax had not. The truck displayed 1940 Arkansas motor vehicle license plates. License plates issued by the state of Mississippi were found under the floor mat. In Duck-worth’s possession was an invoice of Royal Distillers Products, Cairo, Illinois, showing sale December 10 of 100 cases of liquor to Jack • Spiers, Columbia, Mississippi, for $1,691.25.
It was further agreed that Jack Spiers, if called, would testify that he is in the wholesale whiskey business at “Club Marion,” in Columbia, Mississippi. He held a federal wholesale liquor dealer’s permit and owned the truck driven by Duckworth. He had sent Duckworth from Columbia to Cairo with instructions .to purchase the liquor. . None was intended for sale, gift, or other distribution in Arkansas. On cross-examination the witness would testify that the liquor was intended to be sold in Mississippi in violation of the laws of that state. Duckworth and Spiers reside in Mississippi,- and neither had a place of business, in Arkansas. . .
The reference is to federal taxes. The Arkansas strip stamps had not been attached.
The constitutional question in the Jones Case was raised and was presented by able counsel.
George F. McCanless, Commissioner of Finance and Taxation V. Grover Graham. Three other cases involving the same question were consolidated. (146 S. W. 2d 137.)
Chapters 49 and 194 of the Public Acts of 1939.
In support of this statement the following cases are cited: United States v. Gudger, 249 U. S. 373, 39 S. Ct. 323, 63 L. ed. 563; United States v. Collins, 263 Fed. 657; Whiting v. United States, 263 Fed. 477; Preyer v. United States, 260 Fed. 157; Surles v. Commonwealth, 172 Va. 573, 200 S. E. 636.
Italics supplied.
New rules, effective February 3, 1941, have been published.
The italicized words are underscored in the mimeographed regulations.
Contra, see Ryman v. Legg, 176 S. E. 403, 179 Ga. 534; State v. Williams, 61 S. E. 61, 146 N. C. 618, 17 L. R. A., N. S., 299, 14 Ann. Cas. 562.
Ky. 1939, 60 S. Ct. 163, 308 U. S. 132, 84 L. ed. 128.
“Section 1. The eighteenth article of amendment to the constitution of the United States is hereby repealed. Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
In sum, counsel for the appellant said: “The complaint charges that the control law is unconstitutional because repugnant to the commerce, due process and equal protection clauses of the federal constitution in that, under pain of excessive penalties, it undertakes to prevent an authorized interstate contract carrier from continuing an established business of transporting exports of liquors from Kentucky in interstate commerce exclusively. Also: Intoxicating liquors are legitimate articles of interstate commerce unless federal law has declared otherwise. Interstate commerce includes both importation of property within a state and exportation therefrom. Prior to the Wilson and Webb-Kenyon acts, and the Twenty-first Amendment, the powers of the states over intoxicánts in both of these movements were limited by the commerce clause. These enactments relate to importations only. Exports remain, as always, subject to that clause.”
Italics supplied.
The opinion was handed down February 14, 1938.
A Pennsylvania law provided that a vessel that neglected or refused to take a pilot should forfeit and pay to the master warden of the pilots, for use of the society for the relief of distressed and decayed pilots, their widows and children, one-half the amount of the regular pilotage. The law was held to be an appropriate part of a general system of regulations on the subject of pilotage, and could not be considered as a covert attempt to legislate upon another subject.
Clyde Mallory Lines v. Alabama, ex rel. State Docks Commission, 296 U. S. 261.
Headnote to the opinion of the Supreme Court of the United States, after mentioning’ that art. 1, § 10, cl. 3, of the constitution provides that “no state shall, without the consent of Congress, lay any duty of tonnage, says that the inhibition embraces taxes;.,and duties which operate to impose a charge for the privilege of entering, trading in, or lying in port. It was then said in effect that invalidity [of the Alabama statute] under this clause depends upon the basis of the exaction, not upon measure by tonnage. This clause does not prevent a reasonable charge to defray the expense of policing service rendered by the state to insure safety and facility of movement of vessels using the harbors. State harbor regulation, and charges to defray the cost, though they may incidentally affect foreign or interstate commerce, are not forbidden by the commerce clause so long as they do not impede the free flow of commerce or conflict with any regulation of Congress.”
Complainants were owners of steamboats plying between New Orleans and other ports and places on the Mississippi river and its branches in Louisiana. The burden complained of was that the rates of wharfage exacted by the city under state legislative authority for vessels at New Orleans were excessive. Contention was that the charges were unreasonable as wharfage, and in effect a direct burden on commerce. The court said: “The case-is clearly within the principle of the former decisions of this court, which affirm the right of a state, in the absence of regulation by Congress, to establish, manage, and carry on works and improvements of a local character, though necessarily more or less affecting interstate and foreign commerce.”
In the Hesterberg Case the relator, a dealer in imported game, was arrested for unlawfully having in his possession on March 30,1905, (being within the “closed” season in the borough of Brooklyn, city of New York), a golden plover lawfully killed in England, and grouse lawfully' killed in Russia. They were distinguishable from plover and grouse grown in New York. The court said (pp. 40-41) : “That a state may not pass laws directly regulating foreign and interstate commerce has been frequently held .by the decisions of this court. But while this is true, it has also been held in repeated instances, that laws passed by the states in the exercise of their police power, not in conflict with laws of Congress on the same subject, and indirectly or remotely affecting interstate commerce, are nevertheless valid laws.”
In the Geer Case (p. 534) it was said: “The right to preserve game flows from the undoubted existence in the state of a police power to that end, which may be none the less efficiently called into play, because by doing so interstate commerce may be remotely and indirectly affected.” | [
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Humphreys, J.
Appellant, Ralph Field, was nominated as a candidate for governor and appellant Arley Woodrow was nominated as a candidate for presidential elector by the 'Communist party of Arkansas, which is an organized political party in the state, and appellant D. Zini is the secretary of the convention which nominated them. Their nominations were duly certified to C. G. Hall, Secretary of State, on September 9, 1940, to the end that their names might be placed on the general election ballot on November 5, 1940, as nominees respectively for governor and elector of the Communist party. On September 10,1940, the Secretary of State returned to the petitioners by registered m^il their certificates of nomination and notified them from the evidence before him that the Communist party in Arkansas violates § 1 of Act 33 of the Acts of 1935, and that he declined to place the names of the above nominees of the Communist party on the general election ballot of November 5, 1940.
On September 12, 1940, appellants filed a petition for mandamus against appellee, C. G. Hall, Secretary of State, to compel him to accept the certificates of nomination of the nominees of the Communist party of Arkansas and to print the same on the ballot to be used at the general election to be held in the State of Arkansas on the 5th day of November, 1940, said nominees being Ralph Field, nominee for governor and Arley Woodrow, nominee for presidential elector, alleging, in substance, a full compliance with all the -laws of the State of Arkansas necessary as a prerequisite to having the names of their nominees printed upon the ballot to be used at the general election to be held in the state of Arkansas on the 5th day of November, 1940, and that the existence of the party was not in violation of Act 33 of the Acts of 1935, specifically stating that the Communist party does not advocate the overthrow of the local, state or national government, by force or violence, and that it is not affiliated in any way with any political party or organization or subdivision of organizations advocating- such a program by radio, speech, or press; that the Secretary of State, C. Gr. Hall, was a ministerial officer and that it was his duty to accept the certificate and print the names of the nominees of said party on the ballot and that he was without power or authority to exercise any discretion in the matter; and also that Act 33 of the Acts of 1935 is in violation of the Constitution of the State of Arkansas and of the Constitution of the United States and deprives the petitioners of their rights under the constitution.
On September 23, appellee filed an answer denying the material allegations in the complaint.
On October 1, 1940, the trial court heard the application for a writ of mandamus on the pleadings and testimony introduced and adjudged that the petitioners ’ petition for a writ of mandamus be and the same is hereby denied over the objection and exception of appellants.
On October 2, 1940, appellants, by leave of court, filed their motion for a new trial alleging that the court erred in holding that C. G-. Hall, the Secretary of State, had discretionary power to determine whether appellants had the right to certificates of nomination entitling their names to be placed upon the ballot; and erred in holding that appellants and the Communist party of Arkansas advocated the overthrow of the local, state or national government by force or violence; and also erred in refusing to hold that Act 33 of the Act's of 1935 was in violation of the Constitution of the State of Arkansas and in violation of the Constitution of the United States.
The motion for a new trial was overruled over the exception of appellants whereupon they prayed an ap-appeal to the Supreme Court of the State of Arkansas, which was granted.
The bill of exceptions which was prepared and filed within the time allowed by law is quite voluminous containing 810 pages.
It is conceded by appellants that the Secretary of State was authorized to place on the ballot the names of the nominees of political parties, but it is contended that this is a ministerial duty and that he has no authority to exercise any discretion in the matter under Act 33 of the Acts of the General Assembly of 1935. The Act is short and we quote it in full, which is as follows:
“ACT 33
“AN Aot to Bar Un-American Parties from the Election Ballot. ’ ’
“Be it Enacted by the General Assembly of the State of Arkansas:
“Section 1. No political party shall be recognized and given a place on the ballot which advocates the overthrow by force or violence, or which advocates or carries on a program of sedition or treason by radio, speech or press, of oúr local, state or national government. No newly organized political party shall be permitted on the ballot until it has filed an affidavit by its officers, under oath, that it does not advocate the overthrow of local, state or national government by force or violence, and that it is not affiliated in any way with any political party or organization, or sub-divisions of organizations, which does advocate such a policy by radio, speech or press.
“Section 2. Any person who shall violate any provision of this act shall be guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than $100 nor more than $1,000, and in addition thereto may be imprisoned for not more than six months.
“Section 3. All laws and parts of laws in conflict herewith are hereby repealed, and this act shall take effect and be in force from and after its passage.
“Appkoved: February 15, 1935.”
It will be observed that the first few lines of § 1 of the act provides that: “No political party shall be recognized and given a place on the ballot which advocates the overthrow by force or violence ... of onr local, state or national government.” The provisions of the statute impose the duty upon the secretary of .state to determine whether a political party who has certified nominations of candidates for office to him advocates the overthrow of the government by force or violence or whether it has carried on a program of sedition or treason by means of radio, speech, or press. The determination of the question necessarily involves discretion on the part of the secretary of state. We cannot agree with the learned .attorney general that the discretion of the secretary of state is not subject to control by the courts if exercised arbitrarily and without information to justify his act.
Appellants complain that they were not given the benefit of a trial before the secretary of state, but no provision is made in the statute for a trial before him. The statute vests in him authority to determine whether the political party certifying its nominees advocates the overthrow of our local, state or national government etc., without specifying the manner or method he shall use in making the determination, leaving the manner or method in his discretion. We cannot, therefore, say, as a matter of law, that he acted arbitrarily or abused his discretion in not giving appellants a trial.
It is also argued that the trial court erred in holding that the Communist party in Arkansas advocates the overthrow of the local, state or national government. We find evidence of a substantial nature in the record tending to show that it does. Arley Woodrow, candidate for elector, testified that the Communist party in Arkansas adopted the constitution of the Communist party of the United States of America as its constitution in May, 1940.
The preamble to the constitution of the Communist party of the United States of America states, in part, that the Communist party “is devoted to . . . preparation of the working class for its historic mission to unite and lead the American people to extend these democratic principles to their necessary and logical conclusions; ... by the establishment of socialism, according . to the scientific principles enunciated by the greatest teachers of mankind, Marx, Engels, Lenin and Stalin, embodied in the Communist International.”
Article XI of the constitution of the Communist party of the United States is as follows:
“The Communist Party of the U. S. A. is affiliated with its fraternal Communist Parties of other lands through the Communist International and participates in International Congresses, through its National Committee. Resolutions and decisions of International Congresses shall be considered and acted upon by the supreme authority of the Communist Party of the U. S. A., the National Convention, or between Conventions, by the National Committee;”
From the above quotations it is apparent that the Communist party of Arkansas advocates the establishment of the teachings of Marx, Engels, Lenin and Stalin and the record reflects that the Communist party of Arkansas is a part of the Communist party of the United States which is affiliated with the Communist party of other lands through the Communist International. The following excerpts from the “Communist Manifesto” by Marx and Engels,- as shown by the record in this case, are as follows:
“In short, the Communists everywhere support every revolutionary movement against the existing social and political order of things.
“The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only b.y the forcible overthrow of all existing social conditions. Let the ruling classes tremble at a Communistic revolution. The proletarians have nothing to lose but their chains.”
Without setting them out thus record contains many excerpts from the writings of the founders of the Communist party tending to show that the party advocates the overthrow of all forms of government and the establishment of the rule of the proletariat by force and violence if necessary. We deem it unnecessary to incorporate in this opinion the excerpts appearing in the transcript from the authors and founders of the Communist party.
There is substantial evidence in this record tending to show that the Communist party in Arkansas which has adopted the constitution of the Communist party of the United States of America advocates the enforcement of its doctrines by overthrowing other established governments, if necessary, in order to do so. We are unable to say that the undisputed evidence as reflected by this record is insufficient to support the findings and judgment by the trial court.
The rule of evidence applicable is if there is any substantial evidence in the record to support a finding and judgment of a court of law the judgment will be affirmed.
Next and lastly it is argued that even though Act 33 of the Acts of 1935 of the General Assembly vests the secretary of state with discretionary authority which may be controlled by courts and even though the record reflects substantial evidence in support of the finding and judgment of the court to the effect that the Communist party of Arkansas violates the Act, yet the Act itself is void and unconstitutional because it denies the right of suffrage- to a person or group of persons and denies to them their right of freedom of speech and freedom of the press. We cannot agree with appellants that the Act is unconstitutional upon either ground urged. The Act does not deal with the right of suffrage at all nor attempt to prohibit any political party or any members of a political party from carrying on a program of sedition or treason by radio, speech or press. It deals with political privileges only and not with, civil rights. It does not prohibit the Communist party or any other party from advocating the overthrow of government by force or violence nor prohibit them from carrying on a program of sedition or treason by radio, speech or press. It simply denies them the political privilege of having their names placed as candidates upon election ballots to be voted upon at an election in case they advocate or are affiliated with any other party which advocates the overthrow of our government by violence or advocates a program of sedition or treason by radio, speech or press. Neither the federal nor the state constitution in any way deals with or recognizes the nominations of candidates by political parties. Relative to the nominations of candidates by political parties the following statement is made in 9 R. C. L., 1064: ‘ ‘ This is not, however, a constitutional right, hut rather a political privilege, depending upon the will of the people, as expressed to their representatives in the Legislature, or in the absence of positive statutory law, upon the will of party adherence, expressed through conventions, caucuses, or otherwise, in accordance with the rules and regulations of political organizations.”
We do not think there can be any doubt that the legislatures of the various states have authority to establish conditions precedent to the existence and operation of political parties.
We think the Act is constitutional because it in no way abridges the civil right of suffrage and the right to the freedom of speech.
No error appearing, the judgment of the trial court is .affirmed.
Smith, J. concurs. | [
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G-rieein Smith, C. J.
Tbe appeal is from a judgment against Merchants & Planters Bank, Warren, Ark’., predicated upon a jury’s verdict that W. H. Humbarger deposited $100 for which he was not given credit. The bank contended no such deposit was made.
For reversal it is argued that prejudicial evidence was improperly admitted and that the court incorrectly charged the jury.
June 10, 1939, J. M. Thompson issued his check, payable to the order of W. H. Humbarger for $180, at Warren Bank. It was indorsed by Humbarger and bears perforation stamp showing payment June 9, 1939, at Warren Bank.
Appellee testified he personally cashed the check and received nine twenty-dollar bills; four of which were placed in' a billfold. He then went to Merchants & Planters Bank and handed the money to Assistant Cashier A. L. Moody. He distinctly remembered that. he did not get a deposit slip. Early in July he received his bank statement and noticed there was no entry for June 10; whereupon he discussed the matter with Moody, who told him the bank’s cash' account was $5 short that day. ■ Appellee was unable to explain why he did not request a deposit slip. It was the first time he had failed to do so. He did not know why he cashed the $180 check at Warren Bank instead of taking' it to Merchants & Planters Bank where he had been doing business thirty years. On former occasions witness had deposited and cashed checks directly at Merchants & Planters Bank, but on June 10 he needed $80.
Promptly after receiving '• his’ statement appellee talked with MoodjL Thereafter he discussed the matter with Carl Hollis, president of the bank. He denied having told Hollis or Moody he once had a receipt, and -lost it.
Moody testified that appellee came to him, complaining of failure to receive credit for $100; that he examined the bank’s books and found there was no entry for that amount, and asked appellee if he could fix the exact date, the reply being, “No, but I have a receipt at home. I can go get that and will come back and tell you.” Appellee returned and said the receipt could not be found, but the date was June 10. Later appellee said: “I left that receipt in my shirt pocket, I guess, and my wife took it out.” Another explanation was: “I guess my wife must have destroyed it when she washed out my shirt.” Witness had worked in the bank 21 years, and testified positively that ap-pellee did not deposit the money.
Carl Hollis testified that Moody first informed him of appellee’s claim, but that appellee subsequently discussed the transaction with him. This witness also testified that appellee told him he had a receipt. Ap-pellee went away ostensibly to find it, but returned with the explanation it was lost.
Hollis further testified that he asked appellee to give a detailed list of payments made from proceeds of the $180 check. After listing on a sheet of paper those remembered by appellee, Hollis testified he said to appellee: “Well, here’s your $180 accounted for, because this totals $156 or $157.”
Inasmuch as the judgment must be reversed because of the introduction of incompetent evidence, the instructions will not be discussed.
When appellee testified that he received a check for $180 from Thompson, no objection was interposed. However, when Humbarger’s counsel asked him to produce the check there was objection on the ground that it has nothing to do with the case. Exceptions were, saved to the court’s order overruling the objection. In contending that the case of Donaghey v. Williams, 123 Ark. 411, 185 S. W. 778, is not applicable, there is the assertion on behalf of appellee that the check was made out to him, and that its production at the trial “. . . merely substantiated his statement that he had a hundred dollars.”
We think this is the crux of the controversy. The check was introduced to substantiate appellee’s contention that he came into possession of money. But this occurred at another bank and had no direct relation to the deposit appellee claims he made. His dealings with appellant began when he tendered the money to Moody. He testified that he had five twenty-dollar bills. The issue was not whether he had the money, but whether he handed it to Moody.
In Jones’ Evidence in Civil Cases, 4th ed., v. 1, p. 451, it is said: ‘ ‘ The declarations of a party which are favorable to his interest are not admissible in his behalf. Manifestly it would be unsafe if, without restriction, parties to litigation were allowed to support their claims by proving their own statements made out of court. Such a practice would be open not only to all the objections which exist against the admission of hearsay in general, but would also open the door to fraud and to the fabrication of testimony. To be inadmissible on this ground, declarations must be self-serving with respect to the interest of the declarant and in relation to the transaction involved in the action in which it is sought to introduce them in evidence.”
In Jones’ Commentaries on evidence, 2d ed., v. 2, p. 1639, it is said : ‘ ‘ The mere recital of a fact, that is, the mere oral assertion, or written entry, by any individual, that a particular fact is true, cannot be received in evidence. But whenever the declaration or entry is itself a fact, or is a part of the res gestae, the objection ceases.”
An analogous case is Donaghey v. Williams, 123 Ark. 411, 185 S. W. 778. Williams contended Donaghey had employed him as campaign manager. Donaghey is alleged to have stated that plenty of money was available, and to have directed Williams to take charge of headquarters and manage the campaign “as though it were your own business.” Donaghey advanced $2,500 and contended this was all Williams was authorized to use. Williams insisted he was given discretion as to expenditures, and that Donaghey asked him personally to advance $2,500, which was done. Williams claimed credit for expenditures he' could not identify, but in attempting to verify sums totaling $2,500, checks drawn on a Forrest City bank of which Williams was an officer were introduced.
• The court’s comment was: “Checks and drafts were drawn by the appellee and many of them made payable to himself. On their face they do not show that appellant was in any manner connected therewith, and the evidence affirmatively shows that appellant was not present' when the checks and .drafts were drawn. They relate wholly to transactions with other persons. These checks and drafts were but in the nature of self-serving evidence by the appellee,, tending’ to. corroborate his testimony that Tie had paid, out thq various amounts testified to by him on account of appellant. It was not competent for appellee to corroborate his own testimony in this way. See Hamburg Bank v. George, 92 Ark. 472, 123 S. W. 654; Fechheimer-Kiefer Co. v. Kempner, 116 Ark. 482, 173 S. W. 179.”
In Royal Neighbors of America v. McCullar, 144 Ark. 447, 222 S. W. 708, the appellee sued as next friend to collect insurance payable to his children, the policy having been issued to the mother of the children, wife of appellee. A point at issue was whether premiums had been paid. A headnote is: “In an action on a benefit certificate, defended on the ground of forfeiture for non-payment of a premium, it was error to permit insured’s husband to testify that he sent her money and insisted on her paying up her lodge dues for the remainder of the year, for the purpose of showing that her attention was called to the importance of paying the dues and that she had the money with which to make the payment.”
In the Donag’hey case Williams sought to prove he had paid certain sums for campaign purposes. Having testified that he had made such payments, he introduced checks and drafts representing various sums and in effect said, “Here is corroboration of my assertions. These checks and drafts prove I received the money; hence a presumption arises that I spent it in the campaign.”
Humbarger in effect said: “I deposited $100 in Merchants & Planters Bank by handing to Assistant Cashier Moody five twenty-dollar hills. In corroboration of my assertion that I did make the deposit, I exhibit to you a check I cashed at another bank. ’ ’
If in the case at bar appellant had questioned ap-pellee’s capacity to make the deposit — that is, if it had challenged the assertion that appellee entered the bank with $100, then ivhere and how he procured the money would have been material. But this is not the issue. The sole question is whether appellee deposited' $100, and he must stand or fall upon the jury’s acceptance or rejection of the assertion, fortified only by circum--stances so closely connected with the alleged relationship of debtor and creditor as to be a part of the thing done-^the res géstae — or by testimony not of a self-serving character.
For the error indicated, the judgment must be reversed. The cause is remanded.
The verdict was signed by ten of the twelve jurors.
Mrs. Joe Thompson, bookkeeper for Warren Bank, testified that the payment date shown by the perforation was an error; that in fact the check was paid June Í0.
Appellee testified that after putting the four bills in his billfold he walked from Warren Bank to Merchants & Planters Bank with five of the bills in his hand and his hand in his pocket; that he did not take his hand out of his pocket during the journey.
Quoting- “a learned author,” Jones says: “The distinction between a mere recital, which is not evidence, and a declaration or entry, which is to be considered as a fact in the transaction, and therefore is evidence, frequently occasions much discussion, although the test by which the admissibility is to be tried seems to be simple. If the declaration, or entry has no tendency to illustrate the question, 'except as a mere abstract statement, detached from any particular fact in dispute, and depending for its effect entirely on the credit of the person who makes it, it is not admissible in evidence; but if, on the contrary, any importance can be attached to it as a circumstance which is a part of the transaction itself, and checking a degree of credit from its connection with the circumstances, independently of any credit to be attached to the speaker or writer, then the declaration or entry is admissible in evidence.”
The opinion contains this statement: “Appellee [Williams] kept no hooks and had no receipts or vouchers. Appellee testified that he knew the money he paid out [aggregating $7,664.44] was used in the campaign and for campaign purposes, hut whether the parties to whom he paid it used it for that purpose he could not say.”
Italics supplied. [But compare Kavanaugh v. Morgan, 172 Ark. 11, 287 S. W. 1022, and see dissenting opinion by Mr. Chief Justice McCulloch. 1 | [
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